SHABBIR AHMAD (DECEASED) vs Mst — 2023 MLD 957 LAHORE-HIGH-COURT-LAHORE

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SHABBIR AHMAD (DECEASED) VS Mst. SHAHER BANO S. 96 & O. XLI, Rr. 16, 30---appeal---Disposal of appeal without hearing the defendant---"Hearing", meaning of---Principle of natural justice-Duty of the Court----Respondents/Plaintiffs filed a suit for possession before the Trial Court---Petitioners/Defendants contested the matter by filing written statement---Trial Court decreed the suit in favour of respondents/plaintiffs---Petitioners/defendants filed appeal before appellate Court which was admitted to hearing yet while deciding the appeal counsel for the petitioners was not allowed an opportunity of addressing the appellate Court or for that matter presenting his oral or written arguments---appellate Court dismissed the appeal---Held, that it was a fact that the appeal filed by the petitioners was decided without hearing them and even without allowing them to submit written arguments in their favour---In case in hand, despite the absence of the counsel for the petitioners in the appeal and despite the presence of an adjournment on petitioners' counsel behalf ,the appellate Court proceeded to decide the appeal on merits for reasons only known to the appellate Court---Disposal of an appeal in the manner adopted and pursued by the appellate Court was clearly an affront to and not contemplated by, the governing law----Order XLI of the C.P.C, 1908, prescribed the manner and procedure to be followed in deciding appeals---Term 'hearing' spoken of in O. XLI, R. 16 of the C.P.C, 1908, at least envisaged oral arguments and in the same vein R. 30 of O. XLI of the C.P.C, 1908, also envisaged a hearing before pronouncement of judgment---Disposal of the appeal, in case in hand, was unarguably undertaken without hearing and a few days adjournment of the appeal would not have made heavens fall---appellate Court lost sight of established principles with respect to disposal of appeals and ironically it had delayed the disposal of the matter rather than expedited it---appellate Court by failing to take into account the provisions of O. XLI, R. 16 of the C.P.C, 1908, had failed to follow a statutorily mandated procedure and had, therefore, rendered its decision procedurally improper since it had refused to act with procedural fairness towards the affectees of the decision---Fairness required that a person who might be affected by a decision would have an opportunity to make representation on his own behalf before the decision was taken---appellate Court by refusing to allow the counsel for the petitioners to be heard had caused miscarriage of justice by passing a decision which not only suffered on account of being procedurally improper and infirm but which was also bad on account of being materially irregular---Lapse on the part of appellate Court went to the root of its jurisdiction and rendered the judgment passed by it seriously open to interference in revisional jurisdiction---Civil revision was allowed and the judgment passed by the appellate Court was set aside and declared to be of no legal effect.

SHABBIR AHMAD (DECEASED) vs Mst — 2023 MLD 957 LAHORE-HIGH-COURT-LAHORE

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