2002 PLP 1203 (CLC)

Through this consolidated judgment I intend to dispose of Civil Revision Petition No.473 of 1993 and Civil Revision No.222 of 1993 as the same have arisen out of same appellate order of the Additional District Judge and involve same questions of law and facts.

2. Brief facts of the case are that Muhammad Ismail son of Muhammad Hussain, respondent herein, instituted a suit for specific performance of the contract, dated 14‑9‑1980 in the Civil Court on 5‑5‑1982, against Muhammad Hussain son of Faqir Hussain, Afsar Ali, Ashraf Ali, Aslam Pervaiz sons of Nazir Ahmad, and Mst. Nazir Begum daughter of Hussain Bakhsh. It is alleged that it was in violation of the terms and conditions of the above‑noted agreement that defendant No.1 had sold the land in dispute on 28‑1‑1981 in favour of defendants Nos.2 to

5. According to the plaintiff, the said sale of the land made by the defendant No. l in favour of defendants Nos.2 to 5 was illegal.

3. The suit was resisted by the defendants. However, by judgment and decree, dated 8‑12‑1985 learned Civil Judge 1st Class, Nankana Sahib, District Sheikhupura partly decreed the suit in favour of the plaintiff‑respondent, against defendant No. l to the extent of recovery of Rs.4,000 which he had paid as earnest money: The suit of the plaintiff to the extent of remaining relief of specific performance of agreement was dismissed.

4. Two appeals bearing Civil Appeal No.239 of 1991, dated 23‑2‑1991 titled Muhammad Ismail v. Muhammad Hussain and others and Appeal No.233 of 1991, dated 3‑1‑1991 titled Muhammad Hussain v. Muhammad Ismail were filed before the Additional District Judge, Nankana Sahib challenging the judgment and decree, dated 8‑12‑1985 of the Civil Judge. By consolidated judgment and decree, dated 25‑1‑1993, Appeal No.239 of 1991 of Muhammad Ismail was allowed and his suit was decreed subject to the condition that he would pay and deposit the remaining amount of Rs.33,000 within two months. However, the Appeal of Muhammad. Hussain bearing No.233 of 1991 was dismissed by the learned Additional District Judge on the ground that the same was barred by time.

5. Name of Mr. Muhammad Amin Sheikh, Advocate, learned counsel for the respondent has appeared in the cause list, but nobody on behalf of the respondent has appeared.

6. The learned counsel for the petitioner has argued that sine the appeal filed by Muhammad Ismail bearing Civil Appeal No.239 of 1991 was pending adjudication and even if the appeal of Muhammad Hussain, petitioner herein, was barred by time, it could have been treated and disposed of as cross‑objections. To substantiate his argument, the learned counsel has relied on the following cases:‑‑ (1) Bawa Singh and others v. Thakar Singh and others AIR 1922 Lah. 423, (2) Mihan Singh and another v. Tilak Ram AIR 1934 Lah. 273, (3) Mst. Nausha Bi v. Rangbaz and others PLD 1954 Lah. 265 and (4) Dr. S.S. Naeemul Hameed v. Mst. Tahira Sultana and others 1989 MLD 3441.

7. In case of Bawa Singh and others (supra) while interpreting Order 41, rule 22, C.P.C., it has been ruled:‑‑ "Time‑barred appeals can be treated as cross‑objections." In case of Mihan Singh and others (supra), it has been held:‑‑ "Both parties appealing‑‑‑Appeal of one time‑barred‑‑‑Other appeal pending filed within time‑‑‑Appeal can be converted into cross‑objections. " In Nausha Bi case (supra) it has been ruled as under:‑‑ "Appeal‑‑‑Time‑barred‑‑‑May be treated as cross‑objection." The interpretation of Order 41, rule 22, C.P.C. was before his Lordship Mr. Justice Munir A. Sheikh, as My Lord then was in the High Court, in the case of Dr. S.S. Naeemul Hamid (supra) and his Lordship while relying on Mst. Nausha Bi case held:‑‑ "‑‑‑‑O. XLI, ‑R.22‑‑‑Cross7appeal if barred by time, held, could be treated and disposed of as cross‑objections and cross objections could be filed within 30 days from date of service of notice on respondent. "

8. Since I intend to remand both the appeals for deciding the same on merits afresh to the learned First Appellate Court, therefore, the revision petitions are not disposed of on merits lest it may prejudice the case of either party. As the learned Additional District Judge has disposed of the appeal of Muhammad Hussain as time‑barred, in this view of the matter the judgment and decree of the First Appellate Court, dated 25‑1‑1993 is set aside, the case is remanded to the Additional District Judge, who shall hear the Civil Appeal No.239 of 1991, dated 23‑2‑1991 titled Muhammad Ismail v. Muhammad Hussain and others and decide the Civil Appeal No.233 of 1991 titled Muhammad Hussain v. Muhammad Ismail considering it as cross‑objections afresh after giving the parties an opportunity of being heard. The revision petitions are disposed of accordingly. Q.M.H./M.A.K./M‑918/L Order accordingly.