MUNAWAR HUSSAIN vs GOVERNMENT OF PUNJAB through District Collector Jhelum S

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MUNAWAR HUSSAIN VS GOVERNMENT OF PUNJAB through District Collector Jhelum S.96 & O.XLI, Rr.11, 12, 16, 17(1)---Limitation Act (IX of 1908), Arts.168 & 181---Remedy against original decree---Procedure for hearing appeal---Dismissal of appeal---Scope---Consequences of default---Applicants were seeking recall of order, whereby their appeal was dismissed for non-prosecution, whereas another (latter) application was for condonation of delay---Respondents had submitted their reply whereas respondent No.2 was proceeded ex-parte---Held, that Part VII of the C.P.C., deals with the appeals from original decree---Section 96 of the C.P.C., provides the remedy of appeal against original decree---Order XLI of the C.P.C., lays down the procedure in appeals---Rule 11 of O.XLI of the C.P.C. describes that Appellate Court is vested with the power to dismiss the appeal without sending notice to the Trial Court---Rule 11 (2) of O.XLI describes that if on the day fixed or any other day to which the hearing is adjourned, if the appellant does not appear when the appeal is called on hearing, the Appellate Court may make an order of dismissal of appeal---If the appeal is not dismissed in terms of R. 11 of O.XLI of the C.P.C. the Appellate Court shall fix a day for hearing appeal---Rule 16 of O.XLI prescribes the procedure on hearing which expression presumes compliance of all earlier steps---Provisions of O.XLI, R.17(1) of the C.P.C. provide the consequences of default of the appellant to appear on the day fixed or any other day to which the hearing is adjourned---Expression "hearing" used in O.XLI, R.17(1) of the C.P.C., corresponds to the adherence of all steps outlined by Rr. 11 to 16 of O.XLI of the C.P.C.---In the present case it was apparent from application itself that the applicants had been able to canvas sufficient cause for their non-appearance, which was quite enough---Even otherwise order resulting into dismissal of appeal was not tenable, in the circumstances---Applications were allowed and main appeal was restored.

MUNAWAR HUSSAIN vs GOVERNMENT OF PUNJAB through District Collector Jhelum S — 2023 PLD 216 LAHORE-HIGH-COURT-LAHORE

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