1982 PLP 2159 (CLC)

Jahangir Arshad for Respondent. Date of bearing : 10th November, 1981. This regular second appeal arises from the judgment and decree of the learned District Judge, Muzaffargarh dated 26‑5‑1972 whereby, he rejected the appeal filed by Mst. Nawab Bibi, appellant/plaintiff against the judgment and decree passed by the learned Civil Judge, Leiah dated 3‑2‑1972 by which he decreed the suit for possession through pre‑emption filed by Mst. Nawab Bibi appellant, against Faqir Muhammad respondent/ defendant. His (trial Judge) finding on issue No. 9 was that the suit land was actually sold for Rs. 20,C

00. It should be noted that Mst. Nawab Bibi bad averred in the plaint that an amount of Rs. 60,000 was actually paid as price of the suit land. Aggrieved, by the finding of the Court on issue No. 9, on the question of sale price Mst. Nawab Bibi filed an appeal before the learned District Judge on 15‑3‑1972. The learned District Judge fixed the appeal for arguments on 26‑6‑1972. It so happened that on 18‑5‑1972 counsel for Faqir Muhammad respondent filed an application for early hearing. On this application notices were issued to the appellant as well as his counsel for 26‑5‑1972. It appears that on 26‑5‑1972 neither the learned counsel nor Mst. Nawab Bibi appellant appeared before the Court and the learned District Judge, dismissed the appeal on that day, on the ground that the learned counsel for the appellant was present in Court on 25‑5‑1972 and was informed about the hearing of this appeal on 26‑5‑1972 and the learned counsel for the appellant had stated that although he bad not been formally served, yet he would appear on 26‑5‑1972 or to arrange the appearance of some body else on his behalf. The learned District Judge further found that the appeal was filed with insufficient court‑fee and so was no appeal in the eye of law.

2. Learned counsel for the appellant urged that‑ (i) there was no justification to change the date from 26‑6‑1972 to 26‑5‑1972 on the application of Faqir Muhammad respondent; and (ii) no service whatsoever was affected by the Court on the appellant or her counsel for appearance on 26‑5‑1972 and, therefore, there was no legal justification to dismiss the appeal without hearing the appellant. As against this, the learned counsel for the respondent stated that the learned counsel for the appellant was informed about the change in the date of the hearing by the appellate Court itself and he failed to appear in spire of information. 3. 1 have considered the arguments advanced by the learned counsel for the parties and have gone through the record. I am of the opinion that‑there was no hurry in the matter and no legal justification for the change of date of hearing. I further find that in the absence of the formal service of notices, on the appellant as well as her counsel there was no legal justification to decide the appeal without hearing the appellant or her learned counsel. The learned appellate Court should have decided the question of the insufficiency of the Court‑fee and its effect after hearing the appellant. In this view of the matter the appeal is accepted and the case is remanded to the learned District Judge, Muzaffargarh with the direction that he would dispose of the same after affording opportunity of being heard to the parties. There will be no order as to costs. M. Y. M. Appeal allowed.