P L D 1973 Supreme Court 1 (PLP)

(2) If on the day fixed or 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. (3) The dismissal of an appeal under this rule shall be noti fied to the Court from whose decree the appeal is preferred." Sub‑rule (i) of rule 1 of Chapter 3‑B, Volume V of the Rules id Orders of the High Court of Judicature at Lahore, is as follows :‑ "

1. Subject to the provisos hereinafter set forth the follow ing classes of cases shall ordinarily be heard and disposed of by a Judge sitting alone:‑ (i) a motion for the admission of (a) a first appeal from the decree of a Subordinate Court, or (b) of a second appeal the value of which does not exceed Its. 1,000 In a land suit or Rs. 2,000 in a small cause or unclassed suit. On the basis of this sub‑rule, the appellant contends that a High Court Judge sitting alone can only hear a motion for the admission of a first appeal and that he has no power to dismiss a first appeal as, according to rule 4 of Chapter 3‑B of the Lahore High Court Rules and Orders, all other matters have to be heard and disposed of by a Bench of two Judges. He accordingly went up in a Letters Patent appeal before a Division Bench presided over by the then Chief Justice Qadeeruddin Ahmad, J. and Agha Ali Hyder, J. The learned Judge took the view that the words "shall ordinarily he heard and disposed of by a Judge sitting alone", occurring in the opening part of rule 1 of the Lahore High Court Rules and Orders, were sufficient to indicate that a Single Judge had the power also of dismissing a motion for the admission of a first appeal. The Letters Patent appeal was also accordingly summarily rejected. Leave was granted in this case only to consider this question. Learned counsel appearing in support of this appeal has placed strong reliance upon the consistent practice of the West Pakistan High Court under which a Single Judge does not dismiss a regular first appeal in limine; but if he forms the view that the appeal should be so dismissed, he refers the case to the Chief Justice for being placed before a Division Bench. He has also drawn our attention to the rules of the Chief Court of Sind on the Appellate side where, under Chapter VI dealing with appeals under section 14(2) of the Sind Courts Act, 1926, it has been provided by rule 46 that In the case of a first appeal "the appeal shall not be fixed for preliminary hearing under Order XLI, rule 11 of the Code but shall be brought before a Division Court for finial hearing after it is admitted to the register and notice of the appeal is served upon the respondent." Learned counsel maintains that, under the Sind Chief Court Rules, first appeals were not even required to be put up for pre liminary hearing under rule 11 of Order XLI of the Code of Civil Procedure, but they came up direct for final bearing before a Division Bench, which was also the practice in most of the other High Courts in British India. The intention of the Lahore High Court Rules and Orders, it is contended, was also similar; that is to say, that the work of admission and registration of a first appeal which in other High Courts was to be done by the Regis trar of the Court, was, in the Lahore High Court, done by a Judge sitting alone, with this difference that, if be felt that there was no ground either of law or of fact for the admission of the appeal, he could have the appeal referred to a Division Bench for preli minary hearing. In this event, the Division Bench alone could dismiss the appeal summarily under Order XLI, rule 11 of the Code of Civil Procedure. Learned counsel also informs us that this had been the consistent practice of the Karachi seat of the West Pakistan High Court as well. All the learned Judges of the said High Court consistently followed this practice except h9 former Chief Justice, Qadeeruddin Ahmed, J., who took a different view. In support of this contention, learned counsel has also relied on the observations of this Court in the case of Begum Humayun Zulfiqar Ismail v. Begum Hamida Saadat Ali (1968 S C M R 828) where, while considering the question as to whether a District Judge was competent to dismiss an appeal under subsection (3) of section 15 of the West Pakistan Urban Rent Restriction Ordinance in limine under Order XLI, rule 11 of the Code of Civil Procedure, this Court observed as follows :‑ "Generally in an appeal from an original decree, the appeal is both on facts and on law but in an appeal from an appellate decree or order the appeal is on grounds of law only. In an original appeal or what is more commonly called a first appeal the first appellate Court is the final Court of facts. Dismissal under Order XLI, rule 11 of the Code of Civil Procedure of a first appeal is therefore not the general rule. If the facts are not simple or undisputed a first appeal is not generally dismissed in limine. The learned Judges of the Letters Patent Bench have also referred to the above decision but have come to the view that these observations did not preclude a learned Single Judge of the High Court from dismissing a first appeal in limine under Order XLI, rile 11, C. P. C. The learned Judges of the High Court constituting the L. P. A. Bench were, it appears, also conscious of the fact that a different point of view find been prevailing in the high Court at some time with regard to the provisions of sub‑rule (i) of rule 1 of Chapter 3‑B, Volume V of the Lahore High Court Mules and Orders, but they thought that to give such a remaining to the said provisions would "only result in unnecessary duplication of a hearing and waste of time". If, they said, "it was intended that a learned Single Judge should dispose of a motion for admission by admitting it only then the simpler and more direct course was to lay down that it should go directly before a Division Bench so that there may not be duplication of work". There is, no doubt, force in this argument; but, as against this we have the consistent practice of both the Lahore High Court and the Sind Chief Court that a regular first appeal is not dismiss ed fn limine by a learned Single Judge. Indeed, rule 46 of Chapter VI of the Sind Chief Court Appellate Side Rules does provide, as suggested by the learned Chief Justice in the judgment under consideration, for the placing of a first appeal directly before a Division Bench. This also seems to indicate that hither to fore the High Courts have consistently been of the view that a first appeal should not normally be dismissed in limine and hence interpreted sub‑rule (i) of rule 1 of Chapter 3‑B of the Lahore High Court Rules and Orders in a restricted sense, namely, that, if a learned Single Judge is of the view that an appeal does not merit admission, he should have it referred to a Division Bench for preliminary hearing under Order XLI, rule

11. We are not aware of the wisdom behind the above sub‑rule of the Lahore High Court, but it may well have been thought that, lit order to expedite the preparation of first appeals which invariably take a great deal of time, there should be a preliminary weeding out and those which had to be admitted might be admitted by a Single Judge without being put up for consideration before a Division Bench. The latter should confine itself to the consideration of only those cases which were of a doubtful nature. This would also keep the calendar of the Court free from appeals which had no merit at all in them and thus bring about an improvement in the practice of admitting all regular first appeals as a matter of routine. As has been observed by this Court in the decision cited above, dismissal in limine of a first appeal is not the general rule but is resorted to only in those cases that are of such a simple nature that no question of law or fact arises for consideration. In such cases, role 11 of Order XLI of the Code of Civil Procedure does certainly give the Appellate Court the power to dismiss an appeal to limine. But the question here is whether this can be done by a learned Single Judge when, under the rules of the High Court, all regular first appeals are to be heard by a Division Bench. The language of rule 1 of Chapter 3‑B of the Lahore High Court Rules and Orders does indicate that a learned Judge of the High Court sitting alone has the power "to hear and dispose of a motion for the admission of a first appeal"; but according to the practice followed by the Lahore High Court and all other learned Judges of the Karachi seat of the West Pakistan High Court, the "disposal" has been restricted to "admission" or "reference to Division Bench" for preliminary hearing under Order XLI, rule 11 of the Code of Civil Procedure. The language of this rule could certainly have been more specific; but since it does not clearly R exclude the possibility of a restricted interpretation being put upon it in the manner in which it has been done by the consistent practice of the Court itself which framed the rule, we think thit1 it would not be proper to depart now from this practice. If this practice is not intended to be followed, then the rule should be amended suitably to make the intention clear. A learned Judge sitting alone should not, in any event, have departed from the consistent practice of his own Court. If he felt that the practice should be changed he should have referred the matter to the Chief Justice for being placed before the Full Court. In the present case, however, there is yet another and stronger ground on which we feel that the first appeal in the High Court should not have been dismissed in limine. The appeal did raise several serious questions of law, namely:‑(1) whether an allottee, under a Housing Scheme framed by a Housing Society, has any right to maintain a suit for a declaration of title and possession, or, should be have sued in the name of the Housing Society itself; (2) whether the appellant, who claims to be a licensee under the Government, could set up title by adverse pos session against the Government, or the Housing Society or its allottee. Even on facts, there was a serious dispute as to whether the finding of the trial Court, that the appellant had encroached upon the lands in dispute, was based upon any evidence at all. A subsidiary question also arose as to whether the appellant was pliable to be evicted from the entire lands in his possession or only from the area of the lands allotted to the respondents over which he is alleged to have encroached. On merits, therefore, this was not an appeal which should Shave been dismissed an limine. We would, therefore, allow this appeal, set aside the judg ments and orders of the High Court, and send the appeal back ‑o the High Court for hearing on merits by a Division Bench. The costs of this appeal will be costs in the cause. K.B.A. Appeal accepted.