2017 PLP 45 (CLCN)

ABDUS SATTAR ASGHAR, J.

This First Appeal under section 104 read with Order XLIII, Rule 3 of the Code of Civil Procedure, 1908 is directed against the order dated 13.11.2012 passed by the learned Additional District Judge Faisalabad whereby appellant's application for restoration of the appeal was dismissed.

2. Brief facts leading to this appeal are that the appellant's appeal against judgment and decree dated 30.06.2011 passed by the learned Civil Judge Faisalabad was pending before the learned Additional District Judge Faisalabad for hearing. On 7.2.2012 the said appeal was dismissed for non-prosecution. On the very next date i.e. 08.02.2012 the appellant lodged an application for restoration of the appeal before the learned Additional District Judge Faisalabad with the explanation that he and his counsel could not appear on 07.02.2012 due to some domestic urgent work. The said application was supported by an affidavit of the appellant. It was resisted by the learned counsel for the respondent. Learned appellate court however dismissed the petition vide impugned order dated 13.11.2012 in the following manner:- "Perusal of record indicates that during the course of appeal, on 07.02.2012 neither appellant Amjad Butt nor his counsel appeared. The reasons mentioned by Amjad Butt appellant/ applicant are not substantiated by any proof. Amjad Butt has not annexed any proof that he was busy in other official engagement and his counsel was out of city. For re-admission of appeal, the applicant was under obligation to prove that he was prevented by any sufficient cause from appearing when the appeal was called on for hearing under Order XLI, rule 19, C.P.C. Moreover, the applicant did not make any application for re-admission of appeal and there is no provision of restoration of appeal. Even, other wise, the attitude of the appellant, during the trial, has also remained lethargic. The application without force stands dismissed. There is no order as to costs. Copy of the order along with record of learned trial court be sent back and instant application along with record of this court be consigned to the record room after completion. "

3. It is argued by the learned counsel for the appellant that the learned first appellate court passed the impugned order on wrong premises of law and facts causing serious miscarriage of justice which is untenable and liable to set aside.

4. Conversely the learned counsel for the respondent resisted the appeal with the contentions that the appellant has failed to furnish any good reason for his non-appearance on the fixed date i.e. 7.2.2012 before the learned first Appellate Court; that the appellant in his application dated 8.2.2012 prayed for restoration of the appeal instead of re-admission of the appeal as envisaged under Order XLI, Rule 19 of the Civil Procedure Code 1908 therefore the learned first appellate court has rightly dismissed the appellant's application for restoration of the appeal in accordance with law through the impugned order which does not call for any interference by this Court.

5. Arguments heard. Record perused.

6. At the out-set it is important to note that the appellant lodged his application on 08.02.2012 seeking restoration of appeal on the very next day of its dismissal for non -prosecution. It shows his vigilance and bona fide. The said application was supported by an affidavit of the appellant whereas the respondent did not file any counter affidavit to resist the same. There is no cavil to the proposition that Rule 19 of Order XLI of the Civil Procedure Code 1908 permits an appellant to apply for the re-admission of the appeal and where it is proved that he was prevented by any sufficient cause from appearing when the appeal was called on for hearing the court shall readmit the appeal on such terms as it thinks fit. In this case the appellant lodged the application for restoration of the appeal instead of seeking readmission of the same. However, fact remains that the spirit of his request was to seek opportunity of hearing which is his fundamental right in the administration of justice. Mere use of the expression 'restoration of appeal' instead of 're-admission of appeal' neither makes any difference nor bars the court from exercising its jurisdiction vested in it under the relevant provision of law. It is an established principle of administration of justice that the courts in absence of any express provision normally should not refuse proper relief to a party merely on technical ground especially where there is apprehension that the party concerned shall be seriously prejudiced if the lis is not restored. Needless to say that procedural provisions aim to safeguard the interest of justice instead of defeating the same. Procedural provision unless insurmountable should not come in the way to meet the ends of justice. Law always favours adjudication on merits instead of technical consideration and this maxim is to be followed unless there is any insurmountable practical difficulty. Reliance be made upon Anwar Khan v. Fazal Manan (2010 SCMR 973). In this case appellant's bona fide and vigilant endeavour seeking the restoration of appeal furnishes sufficient cause for readmission of the appeal. In the facts and circumstances of this case in my considered view the learned first appellate court while declining the readmission of appeal failed to exercise its jurisdiction to meet the ends of justice in accordance with law.

7. For the above discussion and reasons this first appeal is allowed, impugned order dated 13.11.2012 passed by the learned Additional District Judge is set aside and the case is remanded to the learned first appellate court where the appeal against the judgment and decree shall be deemed pending. The learned first appellate court shall decide the appeal afresh after affording reasonable opportunity of hearing to the parties. RR/A-24/L Appeal allowed.