P L D 1968 Lahore 45 (PLP)

2. The essential facts bearing on the appeal are these: Besides the suit filed by the appellant herein, there was another suit by Muhammad Hussain and three others (respondents Nos. 2 to 5), who jointly claimed superior right of pre‑emption against respondent No. 1 on the ground that they were co‑sharers in the Khata while he did not possess any such or better qualification. The appellant Muhammad Khan, on the other hand claimed superior right of pre‑emption against respondent No. 1 as also the rival pre‑emptors on the ground that he was a collateral of the vendor. Both the suits were consolidated and dis missed by the learned trial Judge by one judgment on the 3rd October 1966 on the ground that neither the appellant nor respondents 2 to 4 were able to establish their respective superior right of pre‑emption against the vendee.

3. To establish his collateral relationship with the vendor, the appellant produced evidence pedigree‑table Exh. P. 4 which the learned trial Judge held inadmissible in evidence for want of certificate as required under section 76, Evidence Act, 1872. A request by the appellant for adjournment of the case to enable him to produce the requisite certificate was refused by learned trial Judge and consequently the appellants' claim to pre‑empt the sale failed. So also his first appeal and, therefore, this second appeal.

4. Rule 31 of Order XLI, C. P. C. sets out with great parti cularity the requirements of the judgment of an Appellate Court in the following terms:‑ "

31. The judgment of the Appellate Court shall be in writing and shall state‑ (a) the points for determination; (b) the decision thereon; (c) the reasons for the decision; and (d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled; and shall at the time that it is pronounced be signed and dated by the Judge or by the Judges concurring therein." The impugned judgment, if it can be so described, is in writing, dated and signed by Mr. Mahmood Ahmad Soofi. But that is all: it does not satisfy conditions (a), (b) and (c) set out above. The requirements as to stating the points of determination, the decision thereon and the reasons for such decision are not mere matter of form. The intention plainly is to afford the parties to the appeal opportunity of knowing and understanding the grounds upon which the decision of the appellate Court proceeds with a view to enable them to exercise, if so advised, the right of second appeal, under section 100, C. P. C. If an appellate Court were to dispose of appeals coming before it in a judg ment which does not state point for determination and the reasons for the decision, the right of second appeal will altogether be neutralised. It was held in Kirani Ahmedullah v. Subabhat ((1884) I L R 8 Bom. 28) that even if the judgment and decree of the Court of first instance is confirmed in appeal, the appellate judgment should state his own reasons and should not merely confine himself to the approving of the reasons of the Court of first instance. This is because the judgment should show on the face of it that the points in dispute were clearly before the mind of the Judge and he exercised his own discrimination in deciding them. In Sitaram v. Surya ((1889) I L R 22 Mad. 12) the judgment of the first Appellate Court was in these words :‑- "This appeal is merely a recitation of the defence that was put forward before the District Munsif. To deal with the grounds of appeal would be simply to repeat the judgment of the District Munsif. I concur with the decision of the District Munsif given on each point. The judgment of the lower Court is confirmed for the reasons therein set forth and this appeal is dismissed with costs." The judgment was set aside as being not in compliance with the requirements of law. Respondents' learned counsel did not dispute the above proposition, either.

5. Here I must observe that during the past few months, quite a large number of civil appeals from the judgments of Mr. M. A. Soofi were brought before me both sitting as a Single Judge and as a member of more than one Division Bench. In almost each case, he dismissed in limine, the first appeal by a similar brief stereotype order, without sending for the record of the case, or even referring to points . for determination. The impression gained is that the learned District Judge has the uncanny habit of dismissing the first appeals brought before him in limine under Order XLI, rule 11 (1), C. P. C. by similar laconic orders, he being of the opinion that if an appeal is dismissed under Order XLI, rule 11 (1) then he as the Appellate Court is relieved of the duty to write judgment as required under rule 31 of Order XLI, C. P. C. In this view he is sadly mistaken. The provisions of rule 31 are unqualified in their application and, therefore, apply equally if an appeal is dismissed in limine under rule 11 (1) or after a notice to the respondent. Rule 11 is merely in the nature of an enabling provision which permits the Appellate Judge to dismiss the appeal without A issuing notice to the respondent. The rule makes no separate provision as to the contents of a judgment in such case. There is a volume of judicial opinion to support the view that even in such cases the Presiding Judge is required to write proper judgment. In Muhammad Arif v. Muhammad Ishaque (A I R 1937 Lah. 352) it was held that in dismissing an appeal under Order XLI, rule 11, C. P. C. a Judge should record proper judgment complying with the requirement of law. It is not sufficient if he simply remarks that there is ample material to support the order passed by the trial Court and does not give any indication as to whether he has considered the grounds of appeal and what view he has taken. Durga Thathera v. Narain Thathera (A I R 1931 All. 597) and Hari Dasi Devi v. Gadadar Roy (A I R 1926 Cal. 992) are also to the same effect. These precedents leave no manner of doubt that the impugned order is not a judgment in law, albeit, it purports to decide what is primarily a question of fact in controversy between the parties namely, as to whether the appellant is a collateral of the vendor.

6. Then the haste with which the learned District Judge dismissed the appeal before him, is staggering. The appeal was filed before him on the 17th of November 1966 and he dismissed it on the same day without even summoning the record. Order XLI, rule 11 (1), C. P. C., which provides for dismissal of an appeal in limine is in these terms:‑ "(1) The Appellate Court, after sending for the record if it thinks fit so to do, after fixing a day for hearing the appellant or his pleader and hearing him accordingly if he appears on that day, may dismiss the appeal without sending notice to the Court from whose decree the appeal is preferred without serving notice on the respondent or his pleader." It is true that the rule leaves it to the discretion of the Appellate Court, whether or not to send for the record but need less to say such a discretion is to be exercised judicially. In the instant case, the all important point in appeal before the learned District Judge was whether pedigree‑table Exh. P. 4 relied upon by the appellant to prove his collateral relationship con formed to the requirements of section 76, Evidence Act and, therefore, admissible in evidence. Without sending for the record the learned District Judge had no opportunity to judge for himself in what respect Exh. P. 4 fell short of the requirement of section

76. The impugned judgment is conspicuous by absence of any reference to the admissibility of Exh. P. 4, which indeed remains the principal point in controversy in this second appeal. Then the rule on its plain reading envisages a day of hearing, which in my opinion, refers to a day other than the day the appeal is filed, or else, the words "and after fixing a day for hearing the appellant" and " . . . hearing him . . . on that day" in the rule would be reduced to redundancies. It is a pity that the learned District Judge remained oblivious to the fact, he was a Court of final Civil Appeal on question of fact. To deal with the appeal before him in that callous manner is a virtual denial of right of appeal to the aggrieved party. And the inexcusable loss of public time and wasteful expenditure to the parties which the remand of such cases entail is very much to be regretted. This is to be regretted all the more because it has been occasioned not because of any error of judgment but because of the indifference of the Presiding Judge to apply his mind to the case before him. Such indifference does great damage to the administration of justice in the country for it seriously impairs public confidence in the system itself.

7. For the foregoing reasons, I hereby accept the appeal and am constrained to remand‑ the case under Order XLI, rule 25 read with section 151, C. P. C. for fresh hearing of the first appeal by the learned District Judge, Gujranwala in accordance with law. Incidentally, I also considered the question that to avoid the expense of another hearing of the appeal to the appellant, I might merely direct Mr. M. A. Soofi to re‑write the judgment in accordance with law. But that would not do, in the case for Mr. Soofi is stated to have been transferred to Sialkot. Then he did not send for the record of the case and the appel lant's main grievance concerned the rejection of pedigreetable Exh. P. 4, produced by him.

8. A copy of this judgment shall be sent to Mr. M. A. Soofi. A.H. Case remanded.