1999 PLP 1941 (MLD)

(v) Whether the plaintiffs are estopped by their words and conduct to file this suit? OPD. (vi) Whether the report of local commission is liable to be set aside? OPD. (vii) Whether the respondent/defendant has violated the order of this Court dated 23-12-1990? OPP. (viii) Whether the suit property is jointly owned by the parties? OPP (ix) If Issue No.8 is proved in affirmative what are the share of the parties in the suit property? OPPS. (x) Relief.

2. Evidence was led by the parties in support of their respective claims. Learned trial Court vide judgment and decree dated 12-10-1995 dismissed the petitioners' suit. An appeal was filed against the judgment and decree dated 12-10-1995 by the present petitioners which was fixed for hearing before the learned District Judge, Gujrat on 18-10-1995 and the same was entrusted to the learned Additional District Judge who vide his judgment and decree dated 8-7-1997 dismissed appeal filed by the petitioners in their absence. Being aggrieved from the judgments and decrees passed by the learned Courts below the instant Civil Revision has been filed by the petitioners.

3. Grievance of the petitioners is that on 8-7-1997 neither the appellants nor their counsel was present before the Court below. In view of provisions of Order XLI, Rule 17, C.P.C. at the most the appeal could be dismissed for non prosecution by 'the learned lower Appellate Court but the learned Appellate Court could not pass decision on merits of the appeal which is violative of the aforesaid provisions of C.P.C. and in this way the petitioners are condemned unheard which is against the principle of natural justice and equity. The learned Appellate Court while deciding the appeal on merits in the absence of appellants has committed grave illegality and irregularity hence, the judgment and decree passed by the Appellate Court is not legally sustainable, and that the learned Courts below have misread and non-read the evidence on record of the case.

4. In support of his contentions learned counsel for the petitioners has placed reliance on "Pakistan Day Memorial Committee and another v. Mian Abdul Khaliq & Co. Civil Engineers & Contractors" (1984 CLC 3332), "M. Muhammad Sidiq and another v. Punjab Road Transport Board, Lahore through Managing Director" (1991 SCMR 2321) and "Yusuf v. Mst. Rabia" (1985 SCMR 1066).

5. Learned counsel for the respondent submits that the Court can pass the decision on merits in the absence of the appellants. He has placed reliance on "Mst. Rasool Bibi and others v. Province of the Punjab through Collector, Sialkot and others (1991 SCMR 403) and "Babu Ram v. Bhagwan Din and another (AIR 1966 Allahabad 1 (V 58 CI) Full Bench), where it was held by the Full Bench of Allahabad High Court that absence of the appellant and his counsel cannot oust the jurisdiction of Appellate Court to dispose of the appeal on merits but this course is used in exceptional circumstances.

6. I have heard the learned counsel for the parties and carefully perused the record. Admittedly the appeal is decided in the absence of the appellants and their counsel because on the face of judgment it is written: "Nemo for the appellants. Respondent in person." This is a judgment on merits and while giving issue-wise findings learned Appellate Court has dismissed the appeal considering the judgment passed by the trial Court being well reasoned. So far as the provisions of Order XLI, Rule 17, C.P.C. are concerned these provisions are in express term. Order XLI, Rule 17, C.P.C. provide the jurisdiction of the Appellate Court for dismissal of appeal for default of appearance of appellant and not a dismissal of appeal on merits in the absence of the appellant. The Legislature has an intention that in the absence of the appellant the appeal should not be decided on merits as being aggrieved by the finding of the learned trial Court it is the prerogative of the appellant to bring the error of law and also the misreading of evidence before the Appellate Court and for danger of error of law Appellate Court should not dismiss the appeal on merits but should leave it open for appellant to apply under Order XLI, Rule 19, C.P.C. For re-admission of appeal dismissed for default after he establishes that he was prevented by any sufficient cause from appearing when the appeal was called for hearing. The provisions of Order XLI, Rule 30, C.P.C. are very clear that the Appellate Court after hearing the parties or their pleaders and referring to any part of the proceedings whether on appeal or in Court from whose decree the appeal is preferred, to which reference may be considered necessary shall pronounce judgment in open Court either at once or on some future day of which notice shall be given to the parties or their pleaders. The provisions of Order XLI Rule 17 C.P.C are reproduced below:-- "(i) Where on the day fixed, or on any other day to which the hearing may be adjourned, the appellant does not appear when the appeal is called on for hearing, the Court may make an order that the appeal be dismissed." This provision applies only when the appeal is called on for hearing and the parties had notice of such date of hearing. The dismissal under this Rule cannot be ordered if the date was not fixed for hearing of the appeal and that the appeal was fixed for hearing after being adjourned even where the appeal is dismissed on merits in spite of the appeal being decided the disposal shall be treated as dismissed in default "Habibullah v. Ali Muhammad" (PLI 1986 Quetta 135 (DB), "Abdul Aziz Khan and 3 others v. Noor Muhammad and 5 others" (1985 CLC 583) and the recent judgment on the score is "Prince Sheikh Abdul Qadir v. Nawab Sheikh Nasir ud Din and 7 others" (PLD 1993 Karachi 216), where it is held that dismissal of appeal on merits in the absence of appellant or his counsel, Appellate Court had no jurisdiction to dismiss the appeal on merits in the absence of the appellant or his counsel, the Appellate Court had jurisdiction either to dismiss the appeal in default or to adjourn the same for some other date. The provisions of Order XLI, Rule 17, C.P.C. would not Appellate Court to hear the appeal in absence of appellant or his counsel or decide the same on merits. The similar view is maintained in "Pakistan Day Memorial Committee and another v. Mian Abdul Khaliq & Co. Civil Engineers &. Contractors" (1984 CLC 3332) and "M. Muhammad Sidiq and another v. Punjab Road Transport Board, Lahore through Managing Director" (1991 SCMR 2321) where it is held by the Hon'ble Supreme Court that appellant's absence on the date of hearing after admission of appeal for regular hearing, Court has jurisdiction to dismiss the appeal and exercise of such power under Order XLI, Rule 17, C.P.C. is not intended to be discretionary. Dismissal for want of prosecution under Order XLI, Rule, 17, C.P.C. is not a decision on merit- and on an application the Court can re-admit the appeal on such information as to costs or otherwise if provided sufficient cause for his non-appearance. The Court is not empowered to render decision on merits in the absence of the appellant.

7. Even the judgment referred by the learned counsel for the respondent "Mst. Rasool Bibi and others v. Province of the Punjab through Collector, Sialkot etc. " 1991 SCMR 403) also affirms the aforesaid view. So far as the judgment "Babu Ram v. Bhagwan Din and another" (AIR 1966 Allahabad 1 (V 58 CI) Full Bench) is concerned this judgment has overruled (AIR 1924 Allahabad 144) and held that the provisions of Order XLI Rule, 17, C.P.C. are of permissive character and the Court has jurisdiction to dispose of the appeal on merits in the absence of the appellant or his counsel but this course be used in exceptional circumstances. In "Prince Sheikh Abdul Qadir v. Nawab Sheikh Nasir ud Din and 7 others" (PLD 1993 Karachi 216), this judgment was no considered and the view that the Court has no jurisdiction to dismiss the appeal on merits in default of the appearance of the appellant it can only dismiss the appeal for non-prosecution or adjourn it for some other date of hearing.

8. So far as the desirability of Order XLI, Rule 17, C.P.C. is concerned, it is crystal clear that the Legislature has intended that Court may make an order that the appeal be dismissed for non-prosecution and not that the appeal be dismissed on merits and then commit the danger of error of law, therefore, I accept the instant Civil Revision, set aside the judgment and decree dated -g.7-1997 passed by the lower Appellate Court and remand the case back to the Appellate Court who after issuing fresh notices to the parties shall decide the appeal on merits. H.B.T./M-885/L Revision accepted.