1985 PLP 2984 (CLC)

The appellant sued the respondent for possession of the land in dispute. Her suit was dismissed by the learned trial Court on 30-6-1982. She challenged this dismissal through an appeal which was dismissed in default on 19-11-1933. Her application under Order XLI, rule 19, C.P.C. for re-admission of the appeal, was disallowed by the learned Additional District Judge by his order dated 18-11-1984. This order is under challenge in this appeal.

2. The reasons which weighed with the learned Additional District Judge in refusing the re-admission of appeal, as figuring in the impugned order, are: "On 25-7-1983, when the matter was fixed for arguments, the petitioner and her counsel failed to.enter their appearance, but the counsel for the respondent, was present. My learned predecessor, however, adjourned the hearing of appeal to 28-9-1983 as the Court time was over. On this date, position with regard to the appearance of the parties remained the same but since the Presiding Officer was on leave, the appeal was adjourned to 3-11-1983. On 3-11-1983, again the position remained the same e.g. the petitioner/appellant and her counsel were absent while respondent's counsel was present. No penal action was taken by my learned predecessor on this date also and the matter was adjourned to 19-11-1983. On this date also the petitioner/appellant and her counsel were absent and the counsel for the respondent, was, however, present, and the result was that my learned predecessor, dismissed the appeal for non-prosecution...".

3. The main argument advanced by the learned counsel for the appellant, in support of this appeal, on the authority of Nowsheri Khan v . Said Ahmad Shah 1983 S C M R 1092 is that on two consecutive dates i.e. 28-9-1983 and 3-11-1983, the Presiding Officer of the Court was on leave, it was, therefore, incumbent upon the learned Additional District Judge to have served a notice of date of hearing on the appellant. Since no such notice was issued to her she could not be penalised and her appeal dismissed in default on account of her absence on 19-11-1983.

4. The submission made by the appellant's learned counsel, finds ample support from the authority relied upon by him. According to this precedent, it was mandatory for the Reader of the Court, while adjourning the case to 19-11-1983, to have handed over a slip of paper A to the appellant specifying the next date of hearing. Since as per proceedings recorded in appellate file; she was not present in the Court on 28-9-1983, this mandatory requirement of law could not be complied with and thus the appeal should not have been dismissed without serving her for the next date of hearing.

5. When confronted with this legal position, the learned counsel for the respondent did not have much in opposing the re-admission of the appeal. He, however, came forth with the plea that the argument now advanced by the appellant's learned counsel was not urged before the learned Additional District Judge and thus it does not deserve consideration of the Court.

6. It is not possible to give any weight to such an objection. Whether or not in the circumstances of the case, the appellant was entitled to a notice of date of hearing, is a question of law which is founded on the judgment of the Supreme Court, binding on all the Courts in the country. I am of the view that it was imperative for the learned first appellate Court to have given to the appellant a notice of the date of hearing. Only if one failed to appear, on the date of hearing conveyed to her, her appeal could be dismissed in default. The appeal involves determination of valuable rights of the appellant in an immovable property. Law favours decision of the causes on merits. In the circumstance of the case, the learned Additional Disitrict Judge's refusal to re-admit the appeal is not in confirmity with law. For the foregoing reasons, this appeal is accepted, the appellant's first appeal restored and the case sent back to the learned Additional District Judge with the direction to decide, it on merits, in accordance with, law. The parties are directed to bear their own costs-and appear before the learned Additional District Judge on 5-5-1985. H.B.T.????????????????????????????????????????????????????????????????????????? First Appeal from Order accepted.