Code of Civil Procedure, 1908
96. Appeal from original decree. (1) Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorised to hear appeals from the decisions of such Court.
(2) An appeal may lie from an original decree passed ex pane.
(3) No appeal shall lie from a decree passed by the Court with the consent of parties.
1. Additional Evidence–Held, Documents required to be produced comprising of judicial record, affidavits and Municipal Committee’s record–Non of the documents relating to title of disputed property, so no help could be made by them to appellants even if allowed to be produced–High Court rejected such prayer. PLJ 2004 Peshawar 255
2. Appeal by a stranger to suit or proceedings—Provisions of Ss.96 and 104 do not in term say as to who was entitled to prefer appeal—Civil Procedure Code, 1908, however, provides that if decree or order appealed against adversely affects a person he can challenge the same in appeal even if he is not made a party to the original suit or proceedings—Stranger to a suit or a proceedings is not prohibited by Code of Civil Procedure, 1908 from filing an appeal against an order whereby he was aggrieved. H. M. Saya & Co. v. Wazir Ali Industries Ltd., Karachi and another PLD 1969 SC 65; Q.B.E. Insurance Limited v. The Trustees of the Port of Karachi 1992 CLC 804 and S. Musarrat Hussain Zaidi and another v. S. Salim Jawaid Zaidi and another PLD 1993 Kar. 548 ref. 2003 CLC 771
3. Appreciation of Evidence:- Trial Court did not give its finding on issues of fact despite there being evidence on record–Effect–First Appellate Court was justified to give its own findings on such issue after proper appreciation of evidence on record. PLJ 2000 Lahore 1086 Trial Court refusing obligatory adjournment to make deficiency in court-fee, held, would be acting illegally and such order would not be sustainable—High Court in exercise of appellate jurisdiction, set aside order of refusal to grant obligatory adjournment with direction to Trial Court on remand of case to decide question of pecuniary competency /incompetency afresh in accordance with law, keeping in view failure of defendant to file written statement within statutory period. 1986 M L D 1182 First appellate Court is fully competent to reverse the findings of trial Court as it had prerogative to re-appraise evidence while deciding appeal. PLJ 2004 Lahore 677 It is not contested that possession of appellants over land m dispute was very old. They were not recognised by lower Appellate Court as Adna Mahkan on ground that they did not take possession of land and brought it under cultivation with consent ofAa/a Malikan i.e., respondents. A consent can be expressed and it can also be implied. From conduct of respondents, it can safely be presumed that they impliedly gave consent to appellants to occupy and cultivate land in dispute. Appellants could neither be dispossessed or ejected from land in dispute. Appeal accepted. PLJ 1991 Lah. 90. It is not shown as to how document Exh. DB, is ab initio, void especially when such transfer is valid under Ordinance and Regulations, Plaintiff-appellant has transferred property in dispute in clear terms after receiving consideration and there is no ambiguity with regard to terms of same. Apart from passing of title to respondent No. 1 in view of document, Ex-DE, certificate of title and Ex-DB, respondent No. 1 is even otherwise entitled to protection of Section 53-A of transfer of property Act. Appeal without force, is accordingly dismissed. PLJ 1998 SC (AJ&K) 41 = PLD 1998 SC (AJ&K) 36. It is not shown as to how document Exh. DB, is ab initio, void especially when such transfer is valid under Ordinance and Regulations–Plaintiff-appellant has transferred property in dispute in clear terms after receiving consideration and there is no ambiguity with regard to terms of same–Held : Apart from passing of title to respondent No. 1 in view of document, Ex-DE, certificate of title and Ex-DB, respondent No. 1 is even otherwise entitled to protection of Section 53-A of transfer of property Act–Appeal without force, is accordingly dismissed. PLJ 1998 SC (AJ&K) 41 Sale agreement which was registered document was produced in Court and besides marginal witness, scriber of document was also produced in Court to support sale agreement. Defendant’s claim that he h’ad thumb-marked document in question, on assumption that the same was lease deed and not sale-deed as had been agreed between parties. Defendant thus, had not disputed thumb-impressions on document in question and he had not even disputed, presence of witnesses mentioned in document of sale. Marginal witness and scriber of sale-deed testified before Court that sale deed was executed on instructions of defendant and that after hearing contents of document he had signed the same in their presence. Plaintiff, thus, had discharged onus to prove agreement which was otherwise registered deed. Defendant having taken contra version was legally bound to prove that he did not intend to execute sale agreement but intended to execute lease deed but he failed to do so. Defendnat’s objection that second witness was not produced was of no effect, in as much as, besides marginal witness, deed writer was also produced who was practically witness of document as he had claimed that such document was scribed on the instruction of defendant and that the same had been attested in his presence. Objection of recording statement of one of plaintiffs after evidence of defendant having not been raised before Trial Court and even in grounds of appeal could not be allowed to be raised at the stage of argument for the first time before High Court. No misreading of evidence or error of law having been pointed out, no interference was warranted in judgment and decree of Trial Court. Plaintiff was directed to deposit balance amount in Court by specified date if the same had not been deposited so far. PLJ 2000 Lah. 1956. Seller imported the goods on behalf of the buyer and buyer failed to receive the goods after payment of full price—Seller sold the goods on no profit and no loss basis—Buyer claimed market price of the goods imported and sold by the seller—Trial Court decreed the suit in favour of the buyer—Plea raised by the seller was that in case of non-payment of the value of the consignments, the same would be sold at the risk and cost of the buyer—Validity—Goods, in the present cases, were to be sold in the market and the matter of risk and cost was to be determined accordingly in terms of Ss.73 & 74 of Contract Act, 1872—Seller instead of resorting to the provisions of Ss.73 & 74 of Contract Act, 1872 proceeded to treat goods as belonging to the seller and to pass them on to the units owned by it on no profit and no loss basis—Buyer who was the lawful owner of the goods had become entitled to compensation which was the difference between the sale price and market price on which goods were passed on by the seller to the units without any authority in breach of the contract arrangement between the parties in the matter of import of the goods—High Court modified the decree passed by the Trial Court accordingly. Purushotham Haridas and others v. Messrs Amruth Ghee Co. Ltd and others AIR 1961 Andh. Pra. 143; Gopaldas v. Thakurdas AIR 1957 Madh. Bha. 20; Mul Chand-Shib Dhan v. Sheo Mal. Sheo Parshad AIR 1929 Lah. 666; Smt. Pani Bai and others v. Smt. Sire Kanwar and others AIR 1981 Rajasthan 184 and N. Purkayastha & another v. Union of India AIR 1955 Assam 33 ref. 2003 CLD 535 Sale of land by person holding power of attorney in favour of his own brother. Respondent had obtained power of attorney by playing fraud upon appellant. Fraud played by respondent had caused damage to appellant depriving him of valuable property. Fraud vitiates contract, therefore, sale on basis of such document was void. Evidence of marginal witnesses and scribe was not produced. In absence of such evidence, it would not be safe to rely on such evidence which is weak evidence. Besides stamp paper for execution of power of attorney had been purchased by alleged vendee in whose favour, ultimately sale deed was executed. No proof had been led to prove payment of sale amount to appellant. Trial Court judgment and decree being based on sermises and conjectures was set aside and suit of appellant was decreed in his favour. PLJ 2000 Lah. 1723. Defendant being blind was not accompanied by any of his close relatives at the time of attestation of mutation. Trial Court dismissed plaintiffs suit for lack of independent evidence of alleged transaction of sale. Status. Where sale was claimed to have been effected by mutation which was itself in challenge, then person claiming benefit of sale must prove transaction by independent evidence insomuch as mutation itself did not convey any title. Scrutiny of entire evidence would show that, transaction of sale was not established. Defendant being blind person was not accompanied by any independent adviser and his free will and volition was not established in alleged blind transaction of sale. Plaintiffs could not prove alleged consideration of huge amount having been passed on to defendant who was admittedly behind. In absence of any of his adviser, near. relatives, payment of consideration would seem to be concocted one. Evidence of Rev. Officer was un-natural and improbable in absence of note in Rev. record that vendor was blind person. In absence of any such note, duly natural inference could be that plaintiff had not appeared and for that reason Rev. Officer who attested mutation could not protect interest of a blind person. Defendant having denied transaction of sale itself, attestation of mutation could not pass any title to plaintiff. Transaction of sale having not been proved by independent and worthy of credit evidence, Trial Court had rightly dismissed plaintiffs suit. Finding of trial court in dismissing plaintiffs suit, were affirmed in circumstances. PLJ 1999 Lah. 58 = 1999 CLC 576. Plaintiffs entitlement to relief of specific performance—Plaintiff admitted by was always ready to perform his part of contract and by filing suit he had re-iterated his intention within prescribed period of limitation, therefore, there does not appear to be any reason to deny him relief of specific performance against appellants/defendants—Suit for specific performance was, thus, rightly decreed by Trial Court. PLD 1971 SC 162; PLD 1994 Lahore 280; PLD 1997 Lahore 177; 2001 SCMR 405 and PLD 1976 Lahore 6 ref. PLJ 2003 Lahore 593
4. Closing of defence—Order closing defence under O.VIII, R.10, C.P.C. passed by Trial Court was upheld by High Court—Respondents/judgment-debtors could not be permitted to reopen issues in appeal against preliminary decree, they could either challenge order or could await for final decision—Defendants having opted to challenge order of closing right of filing written statement in High Court and remaining unsuccessful defendants could not again attack same at the time of appeal against final decree. 2002 MLD 879
5. Competency:- Second appeal, against order of District Judge returning memorandum of appeal, held, was not competent–Such an order could not be appealed from under 0. XLIII, r. 1, C.P.C–Revision was, however, competent. 1986 C L C 126 Defendant who had filed appeal being superior officer than the other defendant had independent right to file appeal and his appeal being within time, Courts below including the High Court could not have considered that copy obtained by his junior beyond period of limitation had rendered the appeal filed by his superior officer/Department time-barred. PLJ 2003 SC 39 Appeal filed before Lower Appellate Court was returned to appellant to be filed before High Court-Appellant filed memorandum of appeal in High Court, along with the returned memorandum of appeal – High Court insisted that the appellant was to file the old memorandum of appeal – Such finding of High Court was not proper being against the law PLD 2001 S.C 355 Appeal incompetently filed before District Judge who had no pecuniary jurisdiction to entertain the same heard and decided such appeal. Validity, District Judge admittedly had no pecuniary jurisdiction to entertain appeal placed before him. District Judge in. such case could either refuse to proceed with the case or return memo of appeal or dismiss the same but he could not dispose of that appeal on merits. Judgment and decree rendered by such Court was thus nullity in the eye of law. Memo of appeal was thus returned to petitioner to do the needful. PLJ 1999 Lah. 458.
6. Compromise of parties during pendency of appeal—High Court in view of joint request of counsel of parties, accepted compromise agreement which were found to be lawful and adjust whole of the claim in appeal, terms whereof, were recorded and made port of the record—Appeal was disposed of in terms of agreements in question. PLJ 2002 Lah. 1545
7. Conflict of judgment between trial Court and Appellate Court. It is settled proposition in law that Jn the event of a conflict of judgment between trial Court and Appellate Court, ordinary, view taken by Appellate Court has to be preferred unless same could be shown on face of record that finding of fact of Appellate Court was not supported by material evidence on record; that conclusion drawn by Appellate Court was patently illegal; that view expressed is against settled norms for appreciation of evidence or judgment on face of it was perverse. PLJ 1999 Kar. 456 = 1999 CLC 422.
8. Conversion of Revision into Appeal:-Revision before District Judge deemed to have been disposed as appeal—S. 144 and S. 15 Civil P. C. (1908). P L J 1980 Lahore 128
9. Court Fee:- Dismissal of appeal for non payment of court fee without first directing appellant to make payment Legality Suit having been decreed for a specific amount, appellants were to have known what stamps they had to provide for court fee, for the appeal Judgment, a copy of which was filed with the appeal clearly indicated the amount of decree to be of specified amount for which Court fee was payable ¬When lapse on part of appellants was detected it was fairly late and even if the appellants had supplied the stamps, they could not have got out of the bar of limitation Appellate Court had thus rightly rejected the appeal, on account of non payment of court fee without requiring appellant to make the payment of requisite court fee No court fee had been paid for the revision petition Flaw of non payment thus could not be cured and the same result viz; dismissal of revision had to follow. 1989 C L C 2080 P L D 1983 Kar. 537 ref. Rejection of plaint for deficiency of court-fee in absence of determination of valuation of suit for purposes of court-fee, held, would not be warranted-High Court, in exercise of appellate jurisdiction would set aside such order of rejection of plaint-Suit was decreed on payment of purchase money and plaintiff directed to make good deficiency of court-fee within specified time failing which plaint would be deemed to have been rejected. 1986 M L D 534 Suit for possession by partition by legal heirs. Decreed with direction to affix requisite Court fee on memorandum of appeal. A legal heir under Muslim Law of Inheritance become automatically an owner in property the moment a propositus dies and inheritance devolves. It does not require to be reduced into writing and it does not require even attestation of mutation. Appellants admittedly are legal heirs and had become full owners/co-sharers in disputed property- Such co-sharer/legal heir is deemed to be in possession of each and every inch of property. It remains immaterial whether such possession is actual or constructive- .Court Fees Act was passed in order to secure Rev. for benefit of state and not to arm a litigant with a weapon of technicality to harass his opponent, hence, plaint as well as memorandum of appeal did not require to be affixed an ad valorem court fee. That Court fee already affixed on memorandum of appeal is refundable u/S. 15 of Court Fees Act. PLJ 1996 Pesh. 98 = 1996 CLC 1624. In view of amendment made in Section 7(v) of Court Fees Act, it has become clear that Court Fee for suit for possession of immovable property has to be calculated on market value of land, thus Court Fee has to be determined on basis of prevailing market value of land at time of filing of suit which was determined by District Judge–Appellant was given sufficient time (eight months) to make good deficient court fees but he wilfully did not comply with order of court–There is nothing on record to show that impugned order is based on mala fide and suit filed by appellant was rightly dismissed. PLJ 1998 (Quetta) 222 Trial Court refusing obligatory adjournment to make deficiency in court.fee, held, would be acting illegally and such order would not be sustainable—High Court in exercise of appellate jurisdiction, set aside order of refusal to grant obligatory adjournment with direction to Trial Court on remand of case to decide question of pecuniary competency /incompetency afresh in accordance with law, keeping in view failure of defendant to file written statement within statutory period. 1986 M L D 1182
10. Entitlement of plaintiff to specific performance. Alleged power of attorney’ executed by vendor in favour of vendee was got registered at a place where-neither land in question was situated nor party resided or worked for gain. Scribe of document had stated in Court that he did not know vendor and he was unable to give even most rudimentary description, of vendor. Provisions of S, 22 Specific Relief Act, 1877, stipulates that jurisdiction to decree specific performance of contract was discretionary. Court was not expected to decree specific performance where circumstances in which contract was made were such as to give plaintiff unfair advantage over vendor, even though there was no fraud or misrepresentation on plaintiffs part. Plaintiff was thus not entitled to relief of specific performance. Judgment and decree passed by trial Court was set aside and plaintiffs suit was dismissed in circumstances. PLJ 1999 Lah. 1770. Trial Court decreed plaintiffs suit by finding her entitled to specific performance of agreement of sale. Nothing was brought in record to suggest that plaintiff at any point of time was not willing to perform her part of contract. Sale agreement was not executed by defendants on pretext that stay order was in vogue relating to in question and when they informed plaintiff that stay order had been vacated, she demanded copy of vacation of stay order which was not supplied to her and she was obliged to file suit for specific performance of agreement of sale. In contracts relating to immovable properties, however time was not of essence and failure to perform part of contract by date fixed in agreement for sale i.e., executing sale deed was not a ground for refusing specific performance. Plaintiff’s suit had thus, been rightly decreed by trial Court. PLJ 1999 Lah. 1410 = PLD 1999 Lah. 238.
11. Fill-up a lecuna at Appeal Stage :– It is settled principle that appellate or revisional authorities could not act in favour of either party, to fill up lacuna. PLJ 1997 SC 2084 = 1997 SCMR 1849.
12. First appeal–Sale and gift of land on basis of power of attorney alleged to be constructed under fraud–Suit for declaration –Dismissal by trial Court–Validity–Appellants and Respondent No. 1 were Sisters and brother–They inherited property from their father–Respondent No. 1 obtained signatures of appellants on stamp paper with mala fide intention and after construction power of attorney duly registered with the sub-Registrar, disposed .of land by sale and gift–Appellants filed appeals before High Court and matter went upto Supreme Court–Case remanded back to High Court for decision after finding out truthfulness ‘or otherwise of Power-of-Attorney–Appreciation of evidence–Witness has not stated that document was signed by ladies when it was scribed–In his cross-examination he cannot say as to on what date “H” dies–He does not know as to whom three sisters are married and where they are married–He is unable to state as to whether they have children or their details–Statement of three witnesses are absolutely discrepart–DWs perhaps had not even seen this document–He says that power of attorney that was scribed on 27.12.1979 was thumb marked by his mother and sister whereas document produced bear signatures of all ladies–Even in photo copy available on file one need not be expect to observe that there is marked difference between signatures of all four ladies on the face the of document and those on the back of document under endorsement of Registrar–Above all plaintiff entered in witness box as PW.-1 and proceeded to make statement in line with plaint–Although she was cross-examined she was not at all confronted with document when according to Respondent No. 1 she is literate lady–Held : Findings of trial Court that execution of said document was proved by respondents cannot be sustained & power of attorney has not been proved. PLJ 2002 Lahore 1085
13. Forum:—Forum is determined according to the valuation of the suit as fixed by the plaintiffs:– P L D 2001 Lah. 139 Where Court of appeal had no pecuniary jurisdiction, any adjudication made by it, held, would amount to total nullity-Absence of jurisdiction being apparent, failure to take notice of same by Court of appeal would not cure illegality. 1987 C L C 99 Subject matter of suit was less than 20.000/- . Suit decided by Additional District Judge on original side as Civil Judge. Appeal to High Court. Competency. Challenge to. Learned District Judge is empowered to transfer a case to any Court under Section 15 of Ordinance and under Section 23 of Ordinance in absence of competent court District Judge can transfer case to any civil court in the same District. Admittedly at the relevant time there was no civil Court First Class posted at Sibi: thus the case was transferred to court of Additional District Judge, Sibi which tried the same on original side in the capacity of Additional District Judge. Thus under Ordinance, power of District judge and Additional District Judge are same and under Section 15 CPC suit shall be instituted in the court of lowest grade competent to try but there is no bar for High Courts to entertain Civil Suits; hence appeal filed before High Court is competent. PLJ 1999 Qta. 50 = 1999 MLD 2104. Plaintiff had evaluated his suit at Rs. 200—Trial Court decreed the suit and appeal was filed before the Lower Appellate Court—Appeal was returned to the defendant on the ground that the value of the suit property was Rs. 1,50,000 as such the Lower Appellate Court did not have the jurisdiction—Defendant accepted the order of the Lower Appellate Court and preferred appeal before High Court—High Court dismissed the appeal in limine for the reason that the Lower Appellate Court had wrongly decided the matter of jurisdiction and the same lay with the Court below—Defendant after the order of High Court filed instant revision petition before High Court—Validity—Valuation as fixed in the plaint unless modified or corrected by the Court, determined the forum of appeal—Where the valuation was accepted by the Trial Court, the appeal as filed before the Lower Appellate Court was competent—Appeal was erroneously returned by the Lower Appellate Court and although the defendant had accepted the order, yet the same would not make any difference firstly for the reason that the mistake committed by the Court could not injure any litigant; secondly the acceptance of the return could not also estop the defendants from challenging the order of the Lower Appellate Court—Suitor could not be estopped against the law—Appeal was remitted by High Court to the Lower Appellate Court for decision on merits by allowing the revision, P L D 2001 Lah. 139 Value of subject matter of appeal filed before High Court was far less than Rs.2,00;000 (Rupees two lacs)-Value of subject matter of appeal for purpose of jurisdiction of High Court being less, appeal before High Court was not competent-Memorandum of appeal was returned to appellant for presentation to proper forum. 1996 M L D 576 Where First appeal not competent before District Judge for lack of pecuniary jurisdiction-Regular second appeal filed against order of District Judge, held, could be treated as first appeal-No bar against such a cause as law lays emphasis on substance and not form. 1986 C L C 126
14. Fraud/collusion in obtaining decree or incompetency of Court to deliver same—High Court or Supreme Court in view of peculiar circumstances of a given case after re-opening the same may make such observations, which would enable the lower Court to deal with relevant questions requiring further examination in a proper trial including that of nullity. Abdul Majeed v. Abdul Ghafoor Khan PLD 1982 SC 146 fol. PLD 2003 Karachi 314
15. Grant of relief of possession at appellate stage—Single Bench of High Court dismissed defendant’s first appeal, but in order to do complete justice and save parties from further litigation allowed plaintiff the relief of possession consequential to declaration that he was owner of the suit property—-Validity—Addition of relief of, possession had resulted in increase of valuation of appeal, thus, appeal could have been heard only by a Bench of two Judges of High Court as per R. 4, Chap. 3-B, VoI. V of High Court (Lahore) Rules and Orders. 2003 MLD 1430
16. Judgment/decree/order, setting aside of—Person aggrieved or adversely affected by decree—Remedies available to such person and mode of exercise thereof dismissed. Any person, who is adversely affected by a judgment and decree of a Court has the right to file an appeal against the decree as provided by section 96, C.P.C. The person, therefore, has two remedies available to him, which exist side by side. Under section 12(2), C.P.C. the aggrieved person, without filing a separate suit, can impugn the decree on the ground of fraud, misrepresentation or want of jurisdiction by simply filing an application under said section supported by an affidavit. To file such an application, the aggrieved person need not be a party in suit, but he has the right to challenge same, if he is aggrieved or is adversely affected by the judgment, decree or order. The Code has, thus, provided an easy and an inexpensive method of seeking relief without having to pay court-fee, which would be required in case a suit was to be filed. At the same time any person, who is aggrieved or is adversely affected by a decree also has the right to file an appeal under section 96, C.P.C. Both the remedies are concurrent and one does not exclude the other. It is open to aggrieved party to choose either of the two. The only distinction between the two remedies, in case the person seeking the remedy is not a party in the suit and wants to file an appeal against the decree is that he must show that he is adversely affected by the decree of Trial Court and obtains leave of the Court to appeal. 1984 SCMR 586; 1999 SCMR 1516 and PLD 1969 SC 65 rel. PLD 1982 SC 150; 1999 MLD 655; PLD 1993 Kar. 548; PLD 1993 Kar 551; 1989 SCMR 918; 1989 SCMR 920; PLD 1975 Lah 515; PLD 1980 Kar. 108; 1996 CLC 654; 1994 SCMR 2163 and 2000 SCMR 1748 ref. PLD 2003 Karachi 314
17. Limitation:- Filing of appeal in wrong forum. Provisions of Section 5 and 14 of Limitation Act 1908, whether attracted. Sufficient cause. Connotation. Sufficient cause would differ from case to case and any action taken on advice by the counsel against any clear provision of law would not entitle the party to seek condonation of delay on the ground that he had acted bonafide on such advice. Where both the parties were legal heirs of deceased and appellant, in order to deprive respondents, took various steps to prolong the proceedings they were not entitled to claim condonation of delay for filing appeal in wrong forum. Appellant, having contested appeal emanating out of /is between them, after judgment of the same it had become clear that appeal arising from judgment of Trial Court was to be preferred before High Court and not the District Court. Appellant having filed appeal before District Court instead of High Court were adamant to claim that they had properly filed the same they were thus not entitled to’ claim condonation of delay in filing appeal in wrong forum and the time spent therein. Deliberate assertion of a plea, which to their knowledge was illegal/improper, could not be treated as sufficient cause for condonation of delay. Sufficient cause for delay having not been shown, appeal of appellants was rightly dismissed by the High Court. PLJ 2001 SC 248 = PLD 2001 SC 355. Appeal was filed when limitation of ninety days for filing the same had already expired–Appellants, had no explanation for delay–Appellants, plea, that appellant being Government, time was required for Government agencies to get sanction and face lengthy procedure for filing appeal, can hardly be reason to condone delay, which had created substantive right in favour of respondents–Government cannot claim to be treated in any manner differently from ordinary litigant nor the same can be granted facilities other than ordinary litigants–No where either in application for condonation of delay or affidavit in support thereof, delay was stated to be due to obtaining sanction from Government–Government functionaries appeared to be un-necessarily careless, negligent and deliberately delayed filing of appeal even after obtaining copy of impugned judgment–Appeal having been filed beyond prescribed period of limitation, and no cogent reasons having been given for condonation of delay, same was dismissed being barred by time PLJ 2000 Karachi 109 Sufficient cause would differ from case to case and any action taken on advice by the counsel against any clear provision of law would not entitle the party to seek condonation of delay on the ground that he had acted bonafide on such advice–Where both the parties were legal heirs of deceased and appellant, in order to deprive respondents, took various steps to prolong the proceedings they were not entitled to claim condonation of delay for filing appeal in wrong forum–Appellant, having contested appeal emanating out of lis between them, after judgment of the same it had become clear that appeal arising from judgment of Trial Court was to be preferred before High Court and not the District Court–Appellant having filed appeal before District Court instead of High Court were adamant to claim that they had properly filed the same they were thus not entitled to claim condonation of delay in filing appeal in wrong forum and the time spent therein–Deliberate assertion of a plea, which to their knowledge was illegal/improper, could not be treated as sufficient cause for condonation of delay–Sufficient cause for delay having not been shown, appeal of appellants was rightly dismissed by the High Court. PLJ 2001 SC 248 Judgment of trial Court though appealable but no appeal filed within prescribed period of limitation instead revision filed after lapse of seven years before District Judge—Revision petition not maintainable and order of District Judge calling for record of case decided by subordinate Court, without jurisdiction. P L J 1980 Lahore 341 Whether time spent in refiling appeal after objection condonable. Combined reading of Rule 4 of High Court Rules and Rule-3 of Order XLI C.P.C.. would show that while in first appeal time for removing objections or matters connected therewith to be fixed by Court, same duty enjoined on and performed by Deputy Registrar of High Court in relation to second appeal, therefore, it can be safely concluded that time fixed by office under over alt supervision of Deputy Registrar of this court is to be strictly adhered to because limitation for filing appeal having begun to run cannot be stopped or supplemented by act of commission or omission of appellant unless be it a case of disability as envisaged under law. Appellant did not come to know of objection raised by office for period of about 2 years i.e. from 24-3.1992 to 10.1.1994. Delay is not only palpable but also contumacious and need to be re-iterated here that time for filing appeal having expired, appellant is required to explain delay of each and every day separately. Delay in filing appeal shall not be condoned unless reasonable explanation is given thereof. PLJ 1996 Lah. 1261 = PLD 1996 Lah. 702. Appellant-plaintiff filing his first appeal before District Judge which was returned for presentation to proper forum-Appellant faced with a curious order passed by trial Court which placed him in a fix and he remained in hands of Advocate who was under a bona fide mistake of law qua value of suit and determination of forum of appeal which point was not free from difficulty-Delay condoned in circumstances. 1986 C L C 126 Appellant-plaintiff filing his first appeal before District Judge which was returned for presentation to proper forum–Appellant faced with a curious order passed by trial Court which placed him in a fix and he remained in hands of Advocate who was under a bona fide mistake of law qua value of suit and determination of forum of appeal which point was not free from difficulty–Delay condoned in circumstances. 1986 C L C 126 Appellants, plea, that they had no knowledge of judgment was of no consequence in asmuch as, judgment was announced in presence of Assistant Government Pleader. Appellant’s contention that time was required for Government to get sanction and face lengthy procedure for filing appeal could hardly be the reason to condone delay, which had created substantive right in favour of respondents. Government could not claim to be treated in any manner differently from ordinary litigant nor it could be granted facilities other than the ordinary litigants. No where in memo of appeal, in application under S. 5, Limitation Act 1908, and in affidavit in support thereof, it had been stated that delay was due to obtaining sanction from Government. Government functionaries seemed to be un-necessarily careless, negligent and deliberately delayed filing of appeal even after obtaining copy of impugned judgment, for which appellants had no reply. Appeal having been filed beyond prescribed period of limitation and no cogent reason having been given for condonation of delay, the same was dismissed being barred by time. PLJ 2000 Kar., 123 = 2000 CLC 831.
18. Maintainability:- On objection raised by vendees/appellants before Trial Court that suit value fixed by pre-emptor for purposes of court-fee and jurisdiction was less pre-emptors /respondents enhanced value as claimed by vendees-Objection to valuation before High Court being totally opposed to one already taken before Trial Court, contention of appellants that appeal would lie before District Judge and not before High Court, held, could not be accepted. Effect of decision of Shariat Appellate Bench P L D 1986 SC 360-Preferential pre-emptive right on basis of co-ownership in pre-empted land is not taken away by decision of Shariat Appellate Bench of S.C P L D 1986 SC 360-Pre-emption Act, 1913 having also not so far been amended so as to apply rule of precedent with retrospective effect, decree already passed in favour of pre-emptors in suit instituted by them under law in force at time of sale on basis of better right of pre-emption than that of vendees, held, could not be re-opened in appeal even if appeal was in continuation o suit. 1987 C L C 839 P L D 1986 SC 360 ref. First appeal not competent before District Judge for lack of pecuniary jurisdiction–Regular second appeal filed against order of District Judge, held, could be treated as first appeal–No bar against such a cause as law lays emphasis on substance and not form. 1986 C L C 126 Subsequent appeal was filed by private respondents with leave of Court, which reflects that private respondents were considered to be necessary party in proceedings–Such order having not been challenged, filing of appeal by Private respondents, cannot be objected to in revisional jurisdiction–First appeal filed by official respondents was disposed off only their extent and rights of private respondents were not settled. PLJ 2004 Quetta 73
19. Nonmentioning of word ‘decree’ in the memo of appeal–Effect–Held: Requirements of O. 41, R.1 CPC were duly complied with in filing appeal that could not be invalidated by mere non-mentioning of word `decree’ as such. PLJ 2004 Peshawar 240
20. Omission by the Court—Effect—Company was arrayed as defendant in the suit by order of Trial Court but no summons in Form IV, Appendix ‘B’, C.P.C. were issued to the company—Summons issued to the Managing Director of the company were considered to be sufficient for the purposes of process and the suit was decreed ex parte against the company—Validity—Act of Court could not prejudice any of the parties to the suit—Where the Trial Court neither issued any summons to the company nor the offer whereby amended copy of the plaint was offered to the counsel for the Managing Director was considered to be enough service on the company, prejudice was caused to the company—No ex parte decree could be passed against the company—Judgment and decree passed by the Trial Court suffered from vitiative infirmity insofar as service of company was concerned and the same was not sustainable—Judgment passed by Trial Court was set aside by High Court and the case was remanded for proceedings in accordance with law. 2001 CLC 1065.
21. Order appealed against pertaining to partial rejection of plaint by Civil Judge-Order illegal on face of it and not warranted by law-Where a cause of action disclosed in plaint, plaintiff, held, had a right to have a fair trial of his case, to produce evidence and have a judicial opinion of Court on merits of his cause-Plaint can only be rejected when allegation made in plaint, when accepted in mode and form, does not entitle him to a relief-Summary guillotining of civil proceedings, held further, could hardly be approved-Order passed by Civil Judge partially rejecting plaint set aside and case remanded for decision afresh in accordance with law. 1986 C L C 126
22. Preliminary decree—Party aggrieved by preliminary decree and not satisfied by order disposing of certain objection could challenge decree in appeal for an authoritative pronouncement, but having failed to do so it would not be open for such party to criticize preliminary decree in appeal against final decree—Corrections of preliminary decree could not be subjected to appeal against final decree—Appeal could be either against preliminary decree or against, final decree—Claim in preliminary decree being barred by time, its legality could not be questioned on assumption of merging of preliminary decree into final decree. 2002 MLD 879 1983 CLC 286 and 1991 SCMR 2324 ref. Final decree to the extent of determination of accounts was, however, not proper, in that report of Local Commissioner was sketchy, therefore, the same was set aside—Trial Court was directed to appoint Local Commission in terms of judgment and decree within 15 days after receiving order—Trial Court was directed to prescribe period within which to receive report and direct parties to file objections within specified time and to decide the case in accordance with law. PLJ 2002 Lah.. 1245 1991 CLC 1526; PLD 1956 Lah.. 756; PLD 1970 SC 173 and 1991 SCMR 2324 ref.
23. Recovery of damages. Press is only medium through which disclosures about doing of leaders is possible. A duty is cast upon press to project divergent views of renowned leaders, but reports or statements published by newspapers must be devoid of inalafide or malice. Statements by political leaders against each other may cause temporary discomfort but no loss of reputation. Public officials no longer could sue for libel simply by proving that something had been printed about them was false. They would have to prove that a journalist had knowingly , printed false information. A publication cannot be deemed to be malicious unless relevant circumstances, indicate absence of bonafide. From evidence on record it has not been established that publications are tainted with actual malice. Effect of defendants to give reasonable opportunity to plaintiff to express his views or to contradict allegations is a sufficient proof of their impartiality. Due care was exercised in publishing the matter. Versions of both gentlemen were reproduced plainly to possible extent, as such, publication in question cannot be deemed to have been done with malice or due to extraneous considerations, hence, defendants newspaper are not liable for’ libel complained against them and their publications are protected under law Constitutional Appeal No. 106 of 1991 accepted. PLJ 1997 Lah. 652 = PLD 1996 Lah. 410.
24. Regular First Appeal–Appellants cannot be permitted to re-agitate same question, before Division Bench which had been effectively dealt with in their appeal filed earlier relating to same subject-matter. PLJ 2003 Lahore 1402
25. Reserve price :– Joint property being indivisible, same was ordered to be auctioned and from sale proceeds, shares of co-sharers be satisfied by giving them their share of the amount. Property in question, was auctioned and at that time no objection was raised to mode of auction. Proclamation of auction however, did not include reserve price which was necessary so that rights of judgment debtors were properly safeguarded and bid was to have started from that figure. Non-disclosure of reserve price of properly in proclamation, would render the same liable to be struck down. Even if there was no objection from either side still it was duty of Court to conduct auction in accordance with law which has not been done- Trial Court by not fixing reserve price in proclamation of auction has violated provisions contained in O.XXI. R. 66 C.P.C.. Impugned judgment/decree was set aside and Court was directed to issue fresh proclamation in accordance with law for auction of Property in question, keeping in view observations of High Court mentioned in its judgment. PLJ 2000 Lah. 1598. Compensation for acquired land. Referee Court enhanced rate of compensation awarded by Collector. Appellant not satisfied with finding of Referee Court objected to valuation fixed by that Court. Referee Court for determination of fair rate was supposed to fix rate after taking into consideration various rates of lands in relevant villages. Referee Court, however, had relied upon specified award in respect of adjacent village. High Court after taking into consideration various documents relating to land of similar nature wherein average price had been calculated enhanced price of land in question and ordered payment of same of appellants. PLJ 1999 Pesh. 33 = 1999 MLD 2107.
26. Review–Auction of mortgaged flats ordered on Execution Application before High Court on Original Side:– Confusion and uncertainty qua number of property to be auctioned:– Clerical mistake crept in by error made in application of inter-venor:– Statement giving up objection regarding certain property number:– Court competent to act on such statement:– Proceedings before High Court needed correction:– Case of clarification as well as removal of technical defect and correction of clerical error:– Order of High Court to the aforementioned effect not appealable nor merits scope for review:– Order within jurisdiction of High Court. P L J 1980 Supreme Court 35
27. Right of appeal:- Right of appeal to be exercised by these persons only in whom (such) power be vested expressly or implied by statute. PLJ 1984 SC (AJ & K) 54. Any person who was not party to suit, can also file appeal against decree by which he was adversely affected and was permitted by Appellate Court to file appeal- Appellate Court had permitted private respondents to file appeal and that order had not been objected to by petitioners–Dismissal of application under O. I, R.. 10 C.P.C. by trial Court would not curtail right of appeal allowed to private respondents by law. PLJ 2004 Quetta 73
28. Scope — No restraints on the powers of Dividion Vench such as those construed qua Single Judges having Regular First Appeals governed by High Court (Lahore) Rules and Orders, Vol. V, Chap. 3-B, R. 1, noris there any restrctive practice — Original side jurisdiction from which the High Court appeal was occasiioned , is peculiar to the High Court of Siindh and may not be saddled with the tchnicalities under kO. XLI, C.P.C. applicable stricto senso to appeals mandated by sec. 96, C.P.C. — High Court , while exercising jurisdiction under S. 3, Law Reforms , Ordinance, 1972, has to apply its mind to the controversy involved and , if and when finding necessary , have the korginal side record placed before it— principles. “Appeal lies from every decree passed by any Court exercising original jurisdiction”-Costs claimed but not awarded–L-Direction to award costs or not to award costs—Refusal of costs held, appealable—Held also that appeal can be filed against decree in its entirety or against that part of decree (refusal to award costs) which aggrieved party wishes to challenge. P L J 1980 Supreme Court 2
29. Stranger to suit. Plea of. Competency to file appeal by mortgagee. Petitioners were never vigilant in becoming party in appeals which stands even decided five years and 2 months prior to institution of revision. Moreover in case petitioners are really mortgagees and are in physical possession of disputed portion, they are never adversely affected by any judgement to which they were not a party and which was a dispute between owners alone. Petitioners are not likely to be prejudicially affected. PLJ 1996 Pesh. 187 = PLD 1995 Pesh. 96.
30. Substantive vested right- appeal being continuation of suit, parties on date of institution of suit having right of appeal, would have right to prefer same, in spite of subsequent bar to filing of such appeal Institution of suit would imply that right of appeal, then in force, would be available to parties till the end. 1986 C L C 2057
31. Talb-i-Muwitkabit :– Suit for pre-¬emption was dismissed on ground that Talb-i-Muwitkabit could not be proved Validity. Plaintiff in her plaint did not disclose time and place of talb-i-Muwathibat nor did she disclose her source of knowledge of sale in question. Perusal of statements of witnesses and assertion in plaint indica-ted that there were contradictions as to date of alleged knowledge of sale and of alleged making of talb-i-muwathibat. Evidence on record would give impression that plaintiff from day one was aware of sale but she made up story of acquiring of sale-deed on specified date and making of alleged talb-i-muwathibat on that date. Material on record did not indicate that plaintiff made talb-i-muwathibat at the spur of moment and that requirement of jumping demand was satisfactorily proved. Court below thus, rightly conclu-ded that plaintiff had failed to prove talb-i-muwathihat. Trial Court, however, had not made correct appreciation of evidence regarding question of talb-i-Ishhad in as much as neither any of witnesses nor plaintiff herself claimed that she had made talb-i-Ishhad after making talb-i-muwathibat in presence of witnesses. Plaintiff however, having failed to prove talb-i-muwathibat would be deemed to have extinguished right of pre-emption, therefore, her suit for pre-emption was rightly dismissed by Court below. PLJ 2000 Lah. 854 = 2000 MLD 1391.
32. Time-harred appeal. Appeal was filed when limitation of ninety days forfilmg the same had already expired. Appellants, had no explanation for delay. Appellants, plea, that appellant being Government, time was required for Government agencies to get sanction and face lengthy procedure for filing appal, can hardly be reason. to condone delay, which had created substantive right in favour of respondents. Government cannot claim to be treated in any manner differently from ordinary litigant nor the same can be granted facilities other than ordinary litigants. No where either in application for condonation of delay or affidavit in support thereof, delay was stated to be due to obtaining sanction from Government. Government functionaries appeared to be un-necessarily careless, negligent and deliberately delayed filing of appeal even after obtaining copy of impugned judgment. PLJ 2000 Kar. 109.
97. Appeal from final decree where no appeal from preliminary decree. Where any party aggrieved by a preliminary decree, passed after the commencement of this Code does not appeal from such decree, he shall be precluded from disputing its correctness in any appeal which may be preferred from the final decree.
1. Appellants had not preferred appeal agianst preliminary decree. Appellants were competent to question validity of final decree even if they had not preferred appeal agianst preliminary decree which otherwise was not a complete one. PLJ 1999 Kar. 246 = 1998 CLC 2023.
2. Party aggrieved by preliminary decree and not satisfied by order disposing of certain objection could challenge decree in appeal for an authoritative pronouncement, but having failed to do so it would not be open for such party to criticize preliminary decree in appeal against final decree—Corrections of preliminary decree could not be subjected to appeal against final decree—Appeal could be either against preliminary decree or against, final decree—Claim in preliminary decree being barred by time, its legality could not be questioned on assumption of merging of preliminary decree into final decree. Jamal Din v. Muhammad Yaqoob 1983 CLC 286 and Friend Engineering Corporation and others v. Government of the Punjab and 4 others 1991 SCMR 2324 ref. Respondents/judgment-debtors could not be permitted to reopen issues in appeal against preliminary decree, they could either challenge order or could await for final decision—Defendants having opted to challenge order of closing right of filing written statement in High Court and remaining unsuccessful defendants could not again attack same at the time of appeal against final decree. 2002 MLD 879
3. Pleas raised and decided prior to passing of preliminary decree could not be reagitated and re-opened by High Court in revisional jurisdiction on the same ground . PLD 2001 SC 79
98. Decision where appeal heard by two or more Judges. (1) Where an appeal is heard by a Bench of two or more Judges, the appeal shall be decided in accordance with the opinion of such Judges or of the majority (if any) of such Judges.
(2) Where there is no such majority which concurs in a judgment varying or reversing the decree appealed from, such decree shall be confirmed :
Provided that where the Bench hearing the appeal is composed of two Judges belonging to a Court consisting of more than two Judges, and the Judges composing the Bench differ in opinion on a point of law, they may state the point of law upon which they differ and the appeal shall then be heard upon that point only by one or more of the other Judges, and such point shall be decided according to the opinion of the majority (if any) of the Judges who have heard the appeal including those who first heard it.
(3) Nothing in this section shall be deemed to alter or otherwise affect any provision of the letters patent of any High Court.
Reference on account of difference of opinion in civil appeal, criminal reference and criminal appeal–Provisions for such reference are contained in S. 98, C.P.C. read with Cl. 26 of the Letters Patent (Lahore) and Ss. 378 & 429 of Cr.P.C. respectively–When said provisions are put in juxtaposition, the scope of reference in criminal matters and power/jurisdiction of referee Judge is wider than scope of reference and jurisdiction of referee Judge in civil appeals. PLJ 2003 Cr.C. (Karachi) 949
99. No decree to be reversed or modified for error or irregularity not affecting merits or jurisdiction. No decree shall be reversed or substantially varied, nor shall any case be remanded, in appeal on account of any misjoinder of parties or causes of action or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the Court.
1. Additional evidence at appellate stage
2. Irregularity not affecting merits of case
3. Issues settlement of
4. Obtaining leave of Court to sue in representative capacity—Mandatory
5. Procedural irregularity
1. Additional evidence at appellate stage–Appellate Court while admitting such evidence, did not take into account that there did not exist any case in terms of O.XLI, R.27, C.P.C: -Express provisions of S.99, Civil Procedure Code, 1908, were also disregarded in setting aside decree of Trial Court on assumed deficiency of court-fee whereby neither decision on merits made by Trial Court ‘ was affected, nor any question of jurisdiction of the Court got involved on that count–Case was remanded to Appellate Court for disposal afresh in accordance with law. 1993 M L D 30
2. Irregularity not affecting merits of case-Plaintiff deliberately filing suit for. accounts knowing that he had no cause of action for such suit-Illegality in plaint could not be said to be mere irregularity not affecting merits of case. P L D 1972 Kar. 8 Omission of one of judges of a Division Bench of a High Court to sign a judgment in a Civil appeal though authored by him for an explainable reason shall not vitiate such a judgment in view of sections 99 and 108 CPC so long as above irregularity does not affect merits of case or Jurisdiction of court provided judge concerned remains in service. PLJ 1997 SC 1202 = 1997 SCMR 209.
3. Issues settlement of—Contention that only issue of law could be tried as preliminary issue and trial Court violated R. 2 by treating first issue happening to be issue of fact as preliminary issue—Contention repelled and held even if it was defect or irregularity, it did not affect merits of case or jurisdiction of Court- P L J 1980 Lahore 713
4. Obtaining leave of Court to sue in representative capacity—Mandatory—Failure to comply with such mandatory requirement could not be condoned under S.99, C.P.C.— Proper course and stage for obtaining such permission stated. The leave to sue in a representative capacity under Order I, Rule 8, C.P.C., is mandatory. The proper course is to obtain permission before the suit is instituted, but if that is not done, the Rule does not forbid leave being granted afterwards. The Rule is mandatory and that failure to comply with its requirement cannot be condoned under section 99, nevertheless, if the suit is laid in representative character, leave can be granted under this Rule even at the stage of appeal, but even then all the formalities prescribed in the Rule should be observed. = 2003 CLC 632
5. Procedural irregularity:- Contention that documents of plaintiff having no endorsement as required under Order XIX Rule 4, same cannot be read in evidence. Failure of trial court to make endorsement on documents produced in evidence, is nothing but a procedural irregularity fully covered by Section 99 C.P.C. and decree cannot be reversed or case remanded on this account alone. Even if documents of plaintiff are excluded, still documents produced by defendants would take court to same .conclusion. Objection is liable to be over-ruled for another reasons that nobody should suffer on account of act of court. PLJ 1995 Lah. 114 = PLD 1995 Lah. 399.
APPEALS FROM APPELLATE DECREES
100. Second appeal. (1) Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to a High Court, on any of the following grounds, namely:
(a) the decision being contrary to law or to some usage having the force of law ;
(b) the decision having failed to determine some material issue of law or usage having the force of law ;
(c) a substantial error or defect in the procedure provided by this Code or by any other law for the time being in force, which may possibly have produced error or defect in the decision of the case upon the merits.
(2) 1 [Omitted]
1. Sub. Section (2) Omitted by S. ll of Ord. X of l980.
1. Allotment of land
2. Appraising of evidence
3. Concurrent findings of facts
4. Condonation of delay
5. Consent decree under family settlment
7. Defective Agreement to sell
8. Factum of gift
9. Ground on Which High Court May interfere
10. Justification for interfering
11. Misreading and non-reading of evidence
12. Oral sale through mutation.
13. Principle of Res-subjudice
14. Rejection of Plaint
15. Repugnancy to injunctions of Islam
16. Right of Appeal
18. Second Appeal treated as First Appeal
19. Second appeal
20. Whether District judge-could entrust inquiry to civil judge
21. Whether other view-point on evidence produced could be justified
1. Allotment of land-Contention that land having been confirmed to appellant same cannot be allotted to any one before setting aside allotment order-Such land already proposed to another person before allotment as such confirmation, not valid-Such order cannot be challenged in revision. 1983 C L C 580
2. Apprainsing of evidence-Evidence on record lightly touched by lower Courts-On critical examination of the record and evidence respondent not able to prove to have possession of land purchased in J947 while suit instituted by respondent in 1976-Held suit of the respondent, clearly time barred and appellant’s adverse possession by awy of prescription on the disputed land resultant-Appeal allowed. Cenorrent findings of Courts below being based upon evidence cannot be interfered with unless shown to be perverse or based misreading. norreading or misinterpretation of evidence P L J 1981 AK (HC) 129.
3. Concurrent findings of facts – when a suit was time barred, but decreed by both the lower courts High Court reversed the findings due to misreading and none reading of evidence – suit being time barred – High Court rightly reversed the concurrent finding of both the courts below PLD 2001 SC 213 Concurrent findings of two Courts below based upon appreciation of evidenoe cannot be vacated in second appeal-Challenging validity of judgment given in second appeal amounting to appreciation evidence-Not a ground for allowing leave to appeal-S. 42,AJK Interim Constitution Act (VIII of 1974) Fact that first appellate Court imported reasoning from another file in support of evidence Such fact not affecting merits of case which stood disproved by evidence of petitioner himself. P L J 1981 A 1 K (SC) Concurrent findings of fact cannot be called in question in absence of misreading or non reading of evidence—No specific ground in that behalf set forth in memo. of appeal—Appellant not allowed to urge anything regarding finding of fact—Decree of civil Court passed against two respondents—Such respondents neither challenged decree in first appeal nor filed cross objection on receiving notice of second appeal—Such respondents not allowed to argils against judgments and decrees passed by Courts below. P L J 1980 Lahore 333 Concurrent findings of fact that A was not collateral of M through S—Held that High Court was justified in interfering with concurrent finding of fact ragarding ancestry of A as that finding had been recorded on misreading and ignoring material evidence. P L J 1980 Supreme Court 103 Reappraisal of evidence in second appeal not possible hence finding of fact not disturbed PLJ 1981 Lahore 8 Finding by Courts below that J was a muslim not objected to by appellant at any stage-Objection not entertained in second appeal. P L J 1981 Lahore 519
4. Condonation of delay-Appellant-plaintiff filing his first appeal before District Judge which was returned for presentation to proper forum-Appellant faced with a curious order passed by trial Court which placed him in a fix and he remained in hands of Advocate who was under a bona fide mistake of law qua value of suit and determination of forum of appeal which point was not free from difficulty-Delay condoned in circumstances. 1986 C L C 126
5. Consent decree under family settlment–Assailing by respondents on ground of fraud and forgery and claiming adverse possession–Dismissal of suit by trial Court–Appeal failed before District Judge– Matter relating to title thereof, stood resolved and settled upon final decision by Supreme Court–Title relating to land in question, was decided by Division Court in earlier round of litigation–Divvision Bench of High Court was bound by earlier decision of another Division Bench as also by the decision of Supreme Court in terms of Arts. 189 and 190 of the Constitution. PLJ 2004 Lahore 1350
6. Court-fees:– First Appellate Court’s finding on court-fees based on misconception of provisions of Court Fees Act, 1870, was set aside by High Court in second appeal–Case remanded to first Appellate Court with direction to apply S. 7(iv)(c) instead of S. 7(iv)(a) of Act V11 of 1870 with regard to payment of court-fees. 1986 C L C 2057 Deficiency in court-fee payable on pre-emption suit filed by appellant pointed out for first time by Appellate Court on ground that a part of land was garden land–Judgment of Trial Court decreeing suit reversed by Appellate Court on question of deficient court-fee and no time allowed to appellant for making good deficiency although deficiency worked out by Appellate Court in a contentious situation in appeal-Appellant, held, could not be burdened with any negligence or contumacy-Appellant according to his own thinking paying up proper court-fee under S.7(v)(a) of Court Fees Act, 1870 was entitled to be given time for making up deficiency if any pointed out for first time by Appellate Court on account of existence of a garden in a part of land-Judgment and decree of Appellate Court set aside and suit of appellant decreed in circumstances-Case remanded to Trial Court for limited purpose of calculation of court-fee and for allowing time to pay up same. 1987 M L D 2541
7. Defective Agreement to sell. Defendant was not owner of land in question, when such agreement was executed. Defendant having subsequently acquised proprietary right, of land in question, effect of previously executed agreement to sell. Agreement to sell, by grantee of property vesting in Government would become effective after vesting of property in grantee. Such transaction was not hit by S. 19, Colonization of Government Lands (Punjab) Act 1912. Agreement of sale had to be proved or disproved on its own and previous litigation between executant and plaintiffs sons had no bearing on it. Agreement in question, has to be decided in the light of evidence brought on record as to whether such agreement was ever executed by alleged vendor in favour of plaintiff or not. Plaintiff had fully discharged onus of proving agreement to sell in his favour by producing cogent evidence. Defendants having failed to rebut such evidence, presumption has to be drawn, against them-and in favour of genuineness of such disputed documents. Only conclusion -which could be drawn from evidence available on record was, that vendor had executed agreement to sell in favour of plaintiff, therefore, wrong and illegal conclusion had been drawn by First Appellate Court Judgment and decree of First Appellate Court dismissing plaintiffs suit was set aside while, that of trial Court decreeing plaintiff’s suit was resorted. PLJ 2000 Lah. 682.
8. Factum of gift– mutation, sanctioned in favour of appellant challenged by respondent by way of suit for recovery of possession–Suit decreed by Trial Court, decision affirmed in appeal by District Judge–Appeal against–Burden of proof–Principle of–Form of suit of possession instead of declaration–Effect of–It was for appellant to have produce evidence convincing nature to prove gift by two ladies who were illiterate and had their family and children–There was no rational, motive or necessity for them to have made any such gift in favour of appellant–The controversy was fully known to parties who had full opportunity of substantiating their respective pleas–Form of suit thus would not have made any difference in facts and circumstances of case–Held concurrent findings of fact recorded by courts below and conclusion drawn by them do not suffer from any illegality–Appeal dismissed. PLJ 2001 Lahore 1056
9. Ground on Which High Court May interfeare:- High Court while exercising powers under Section 100 CPC can disturb concurrent finding of fact only when evidence is misread and finding is based on inadmissible evidence or there existed an error or defect in procedure which may possibly have introduced an error or defect in the decision on merits. PLJ 2000 Lah. 1531 = 2000 CLC 1886. It is well settled that conclusions based on evidence unless perverse or arbitrary were immune from scrutiny in appeal filed U/S. 100 C.P.C.– PLJ 2001 Lahore 573 Lapse on part of High Court to decide in appeal vital point of limitation. Constitutes a substantial error, beside showing mis-application of mind on part of High Court. NLR 1988 SCJ 230; PLD 1988 SC (AJK) 31; PLJ 1988 SCAJK33. Mixed question of law and fact can be gone into in second appeal. PLJ 1975 Lah. 222; PLD 1975 Lah. 855. Mutation attested during subsistence of status quo order–Such mutation was nullity in the eye of law and of no legal consequence. PLJ 2000 Lahore 1406 Second appeal is permissible U/S. 100 on specified grounds. Appellants have not been able to point out any ground whereby appeal could fall within mischief of section 100. Nothing has been shown to how decision given by courts below is contrary to law or any usage having force of taw or there has been failure of courts below to determine issue of law or issue of usage. Courts below have properly appreciated evidence on record and no illegality warranting interference has been pointed out in second appeal. PLJ 1996 Kar. 590 = 1996CLC1019. Appeal accepted by Addl District Judge and case remanded to trial Court for decision in accordance with law–Dismissal by trial Court on merits–Appeal accepted and case again remanded to trial Court–Dismissal of suit by trial Court as well as by appellate Court–Validity–Application of rule laid down in Sardar Ali’s case—Plea raised by petitioner that rule laid down in Sardar Ali’s case was applicable—Decree was awarded in favour of petitianer on 19.1.1978 before 31.7.1987– Petitioner was entitled to seek restoration of decree in his-favour on basis of pre-existing law–Decree passed in favour of petitioner before 1.8.1986 was protracted from judgment of Said KRamal Shah’s case–All further proceedings in connection therewith were to he governed and decided under provisions of Punjab Pre-emption Act, 1913–Judgment and decree passed by trial Court and first appellate Court set aside case remanded for fresh decision on merits according to law. PLJ 2002 Lahore 220
10. Justification for interfaring:- Appeal Fallacy in appraising evidence unless it amounts to material mistaken assumption is merely an error in coming to a finding as to that fact and such error cannot be said to be error of law justifying interference in second appeal High Court applying mind and reaching counclusion on that first appellate Court was justified in upsetting judgment of trial Court Inference drawn being finding of fact is not open to attack unless not supported by evidence or is perverse Finality attaches to decision even if it could be substituted if Court hasd power to do so Leave to appeal against order of igh Court in second appeal not granted PLJ 1981 AJK (SC) 17 Ample evidence on record to sustain findings of learned Courts below that second sale did take place Concurrent findings not open to interference in second appeal. PLJ 1988 Lah. 5.
11. Misreading and non-reading of evidence– Learned Additional District Judge has not only failed to read evidence but has acted under misconception–He has relied upon Article 79 of Qanun-e-Shahadat Order 1984 which according to him having come into force on 28.10.1984 was applicable to proceedings as evidence was recorded during period 1985 to 1987–While doing so he forgot two things; one that said Article 79 is otherwise verbatim reproduction of Section 68 of erstwhile Evidence Act, 1872 and that said dispensation speaks of document required by law to be attested–Now agreement to sell is not document required by law to be attested and as such production of second marginal witness was not obligatory–Learned District Judge has not recorded single reason for disbelieving testimony of PW 1 while High Court find no mention of PW-2 in impugned judgment–Similarly no reference has been made to testimony of appellant as PW-7–Findings of learned Additional District Judge on Issue No. 2 pertaining to limitation are also result of misconstruing law and failing to read Art. 113 of Schedule to limitation Act, 1908–It is true that it is written in Ex. P. 2 that sale-deed shall be executed and registered or mutation shall be got attested within one year of conferment of property rights–However, it cannot be said that this means that date was fixed for performance within meaning of Art. 113 of said Act–It is well settled that date fixed for purpose within meaning of said provision of law is date of calendar–No date of performance fixed for purpose of agreement and limitation would be covered by second Para of Art. 113 i.e. it shall commence from refusal to perform agreement–Held : Suit of appellant was very well within time–R.S.A. allowed PLJ 2001 Lahore 481 Rule that High Court does not interfere with concurrent findings on point of facts, has exception. PLJ 1988 Kar. 459. From perusal of grounds mentioned in S. 100 of CPC, 1908. second appeal does not lie on ground of error or question of fact. It only lies on ground of law, or error in procedure, which may have affected decision of case upon merits. Decision arrived at by two courts below was not shown to be either based on irrelevant or inadmissible evidence or further that evidence had in any way been mis-read by them. High Court had wrongly interfered with concurrent finding of facts. PLJ 1996SC 1128 = 1996 SCMR 808.
12. Oral sale through mutation. Defendants denying plaintiffs title on basis of oral sale. Quantum of proof required. Plaintiffs claiming title on basis of oral sale did not make any effort to prove transaction of oral sale. Where title was claimed on basis of oral sale reflected in mutation, such document in itself would not convey any title and transaction if denied must be established independently. Mutation by itself would not convey any title to plaintiff and they were required in law to prove oral sale by independent evidence. Plaintiffs evidence with regard to genuine and lawful transaction was lacking. Plaintiffs were not entitled to decree on basis of alleged oral sale. PLJ 1999 Lah. 185 = 1999 MLD 2302 = NLR 1999 Rev. 4 7.
13. Principle of Res-subjudice- Institution of fresh suit not barred-Only Court is restrained from proceding with trial of subsequent suit if matter directly and substantially in same parties in previous proceedings. P L J 1981 Lahore 141
14. Rejection of Plaint:- Appellate Court setting aside an order of Trial Court rejecting a plaint and remitting case to Trial Court for disposal in accordance with law. Such order of Appellate Court is not an order under O.XLI, R. 23 and is not appealable under O.XLUI, R. 1(4). PLJ 1977 Kar. 454.
15. Repugnancy to injunctions of Islam. Plea that “Ribbah” being against injunctions of Islam, plaintiffs suit could not have been decreed with interest Such plea would merit dismissal simply on the ground that in view of Art. 203-G of the Constitution, High Court has got not jurisdiction to dilate upon question of “Ribbah’ and that judgment of Federal Shariat could PLD 1992 F.S.C. 445 relied upon by appellant was pending before S.C operation whereof was in abeyance. Trial Court was thus, well within its rights to impose interest qua amount in question. Appellant having failed to point out any infirmity committed by Courts below as also misreading or non-reading being non apparent on face of record. High Court having limited jurisdiction in terms of S. 100 C.P.C. could not disturb findings recorded by those Courts. PLJ 2000 Lah. 1370
16. Right of Appeal — Right to prefer First or Second appeal, held, was not merely matter of procedure but substantive vested right- appeal being continuation of suit, parties on date of institution of suit having right of appeal, would have right to prefer same, in spite of subsequent bar to filing of such appeal Institution of suit would imply that right of appeal, then in force, would be available to parties till the end. Conversion of revision into second appeal–At time of institution of suit party having right to prefer second appeal, held, would have such right intact in spite of subsequent amendment of -S. 102, Civil Procedure Code, taking away right of second appeal–Revision filed by party under misapprehension of such right converted into second appeal by High Court. 1986 C L C 2057 Right of appeal to be exercised by these persons only in whom (such) power be vested expressly implied Iv statute. PLJ 1984 SC (AJ & K) 54.
17. Scope—High court could not disturb findings of fact even if erroneous, however, gross and inexcusable the error may be except on strong legal ground which may be held to tantamount to interference on a question of law; it would depend on the facts of each case as to whether the two courts bellows recording concurrent findings of fact had lawfully arrived at the conclusion and whether the judgments did not suffer from misreading of evidence or exclusion of material piece of evidence on record or perverse or contrary to the record. PLD 2003 SC 676 Defendant not agitating findings of Trial Court on issues of fact before First Appellate Court–Findings on those issues having become final, could not be allowed to be agitated for the first time in second appeal–Findings of Courts below on issues of fact were affirmed in circumstances. 1995 C L C 309 Second appeal before High Court—Crucial aspect of case gone unnoticed by two Courts below-High Court within its right to exercise jurisdiction, under S. 100. P L J 1980 SC 150 Plea taken in written statement but not pressed before trial Court nor was it agitated in support of decree of dismissal of suit, before lower appellate Court Appellants precluded from taking such plea in second appeal:– No misreading or ignoring of evidence:– No question of admissible document:– Held: findings of fact arrived it by lower appellate Court must hold good in second appeal. PL J 1980 Lahore 537 Second Appeal–Against decree passed in suit against Railways for recovery of excess demurrage charges–Claim based upon Goods Tariff Rules–No pleading that said Rule was ultra vires Railways Act–No issue framed by Trial Court on that question–High Court holding Rules to be ultra vires–Travels beyond pleadings–Order passed by High Court declared illegal. PLJ 2002 SC (India) 14
18. Second Appeal treated as First Appeal:- First appeal not competent before District Judge for lack of pecuniary jurisdiction-Regular second appeal filed against order of District Judge, held, could be treated as first appeal-No bar against such a cause as law lays emphasis on substance and not form. 1986 C L C 126
19. Second appeal-Finding of facts arrived at by lower appellate Court qua transaction was a gift and not sale-Such finding overlooked several circumstances apparent on record-Held : that interference by High Court, to hold that transaction was sale, was not illegal-S. 15, Preemption Act (1913). P L J 1981 Supreme Court 733 finding of fact may not be interfered with in second appeal even though may be erroneous but it must not be perverse. P L J 1981 AK (HC) 113 legal necessity for sale of laud-Concurrent findings by two Courts below-High Court could not competently set aside findings recorded in favour of ,sale transaction in disregard of ingredients of S. 100-Impugned judgment of High Court, held, not sustainable. PLJ 1981 Supreme Court 43 but in a case where requirement of tenanted premises for reconstruction were under conscideration Concurrent findings of two authorities below—Appeal allowed—S. 13(6), W. P. Urban Rent Restriction Ordinance (1959). P L J 1980 Lahore 550 Whether defendant bad tried to present written statement—Quest of fact—No enquiry possible in second appeal- PLJ 1980 Lahore 66 Concurrent findings on sale consideration were correctly arrived at and they were not against weight of evidence. Defendants stand was evasive with regard to their assertions in written statement while it was proved in evidence that litigation had concluded; that upper portion of house in question, had gone to another party; that permanent transfer deed was ready for delivery and that the same had not been collected by defendants to avoid execution of agreement in question. Nothing was brought in evidence by defendants to show that ‘transaction m question, was unconsciousable and oppressive, therefore, concurrent findings arrived at by two Courts-below were well reasoned, supported by evidence on record, and being not against law, would not call for interference. PLJ 2000 Lah. 474.
20. Whether District judge-could entrust inquiry to civil judge. Determination of question of limitation was exclusively within jurisdiction of appellate Court, therefore, matter could not have been referred to trial Court. Matters arising out of suits could legitimately be referred and not others. It amounted to delegating its powers to trial Court, which was not legally possible. PLJ 1997 Lah. 1241 = KLR 1997 Civil Cases 683.
21. Whether other view-point on evidence produced could be justified. Believing or disbelieving evidence being function of Trial Court, finding recorded in regard thereto was not open to challenge in second appeal by High Court in exercise of its jurisdiction under S. 100, C.P.C. simply because some other view-point on evidence produced could also be taken. Interference in concurrent finding of fact could be made by High Court only when evidence was misread and finding was based on surmises and conjectures; or on inadmissible evidence; or there existed error or defect in procedure which might possible have introduced error or defect in decision on merits. Interference in concurrent judgments on question of fact was not warranted- Interference drawn by High Court in modifying judgments of Courts below was erroneous and unfounded. Judgment ‘and decree of High Court was set aside while judgment and decree of Trial Court was restored. PLJ 1997 SC 2034 = 199 SCMR 1866.
101. Second appeal on no other grounds. No second appeal shall lie except on grounds mentioned in section 100.
1[102. No second appeal in certain suits. No second appeal shall lie in any suit of the nature cognizable by Courts of Small Causes, in any other suit when the amount or value of the subject-matter of the original suit does not exceed the ampunt or value as the Provincial Government may by law determine.
1. Substituted by Act VIII of 2004 .
1. Value of subject matter:- Valuation of the file by appellant admittedly below fifty thousand rupees. Second appeal to be barred by Sec. 102. CPC. PLJ 1984 Qta. 1. Value of subject matter exceeding Rs. 2003/- notwithstanding suit was for permanent injunction–Second appeal and not revision, competent. PLJ 1980 Bahawalpur 117 Suit cannot be valued at different amounts for purposes of first appeal and second appeal-Value given in decree less than Rs. 2,000, second appeal not competent being barred under S. 102, C. .’P. C.-Notional value taken as value of subject-matter of suit for purposes of S. 18 of Ordinance 1962, held, same notional value must also be taken as value for purposes of S. 102, C. P. C. 1983 C L C 580
2. Conversion of revision into second appeal–At time of institution of suit party having right to prefer second appeal, held, would have such right intact in spite of subsequent amendment of -S. 102, Civil Procedure Code, taking away right of second appeal–Revision filed by party under misapprehension of such right converted into second appeal by High Court. 1986 C L C 2057
103. Power of High Court to determine issues of fact. In any second appeal, the High Court may, if the evidence on the record is sufficient, determine any issue of fact necessary for the disposal of the appeal which has not been determined by the lower appellate Court or which has been wrongly determined by such Court by reason of any illegality, omission, error or defect such as is referred to in sub-section (1) of section 100.
APPEALS FROM ORDERS
104. Orders from which appeal lies. (1) An Appeal shall lie from the following orders, and save as otherwise expressly provided in the body of this Code or by any law for the time being in force, from no other orders: –
(f) an order under section 35A ;
(ff) an order under section 47 ;] .
(g) an order under section 95 ;
(h) an order under any of the provisions of this Code imposing a fine or directing the arrest or detention in the civil prison of any person except where such arrest or detention is in execution of a decree ;
(i) any order made under rules from which an appeal is expressly allowed by rules :
Provided that no appeal shall lie against any ‘order specified in clause (f) save on the ground that no order, or an order for the payment of a less amount, ought to have been made.
(2) No appeal shall lie from any order passed in appeal under this section.
1. Cls. (a) (e) Omitted by the Arbitration Act , 1940
1. Appeal against interlocutory order—Appellate Court in appeal against the interlocutory orders, would not substitute its own discretion for that of trial Judge except where discretion was exercised by trial Judge arbitrarily, perversely, contrary to legal principles and on the basis of assumptions not borne out by record. Khairati v. Aleemuddin PLD 1973 SC 295 and Eckhardt & CO. Marrine GMBH. West Germany and another v. Muhammad Hanif PLD 1986 Kar. 138 ref. = 2003 CLC 771
2. Appeal by a stranger to suit or proceedings—Provisions of Ss.96 and 104 do not in term say as to who was entitled to prefer appeal—Civil Procedure Code, 1908, however, provides that if decree or order appealed against adversely affects a person he can challenge the same in appeal even if he is not made a party to the original suit or proceedings—Stranger to a suit or a proceedings is not prohibited by Code of Civil Procedure, 1908 from filing an appeal against an order whereby he was aggrieved. H. M. Saya & Co. v. Wazir Ali Industries Ltd., Karachi and another PLD 1969 SC 65; Q.B.E. Insurance Limited v. The Trustees of the Port of Karachi 1992 CLC 804 and S. Musarrat Hussain Zaidi and another v. S. Salim Jawaid Zaidi and another PLD 1993 Kar. 548 ref. 2003 CLC 771
3. Competency to file appeal by mortgagee. Petitioners were never vigilant in becoming party in appeals which stands even decided five years and 2 months prior to institution of revision. Moreover in case petitioners are really mortgagees and are in physical possession of disputed portion, they are never adversely affected by any judgment to which they were not a party and which was a dispute between owners alone. Petitioners are not likely to be prejudicially affected. PLJ 1996 Pesh. 187 = PLD 1995 Pesh. 96.
4. Interim injunction, grant of—Defendant suspended supply of raw material to the plaintiff before the institution of the suit—Trial Court granted the injunction whereby the defendant was restrained from discontinuing the supply of the raw material—Validity—Where the supply had already been suspended by the defendant, the order passed by the Trial Court was not justified to direct the sale of goods to the plaintiff—Plaintiff failed to make out a prima facie case and to show that the principles of irreparable loss and balance of convenience was in their favour—Order of temporary injunction granted by the Trial Court was set aside and the application filed by the plaintiff was dismissed. 2002 CLD 77 1994 SCMR 1858; PLD 1999 Kar. 196; 1999 MLD 2670; l992 CLC 15; 1983 CLC 1695; PLD 1958 (W.P.) Lah.. 63; AIR 1958 Pat. 414; AIR 1957 Madh. Pra. 223 and 1997 SCMR 1508 ref.
5. Objection Petition:- Document purportedly creating mortgage in favour of bank was not genuine as per statement of official of C.D.A. who had appeared as witness of objector–Deposite of documents thus, did not result in the creation of mortgage in favour of respondent Bank–Objection petition filed by appellant before Executing Court ought to have been allowed–Plea that Executing Court cannot go behind the decree was repelled in as much as, rights of appellant being bonafide purchaser of property in question, for valuable consideration without notice of any encumbrance would not be affected by such mortgage which in fact was not created–Objection petition of appellant was allowed. PLJ 2002 Lahore 1289
105. Other orders. (1) Save as otherwise expressly provided, no appeal shall lie from any order made by a Court in the exercise of its original or appellate jurisdiction; but where a decree is appealed from, any error, defect or irregularity in any order, affecting the decision of the case, may be set forth as a ground of objection in the memorandum of appeal.
(2) Notwithstanding anything contained in sub-section (1), where any party aggrieved by an order of remand made after the commencement of this Code from which an appeal lies does not appeal therefrom, he shall thereafter be precluded from disputing its correctness.
Arbitrator, appointment of—Such appointment was by interlocutory/intermediary order, and the same was the subject-matter of appeal against final order—Validity-On filing of appeal against the ultimate decision of the Court below, the whole matter gets reopened and the legality and propriety of any adverse interim order can also be examined by the Court of appeal—Order appointing the arbitrators by the Trial Court can be challenged before the Court of appeal, when filed against a final order or decree in view of S.105, C.P.C.—Appeal was maintainable in circumstances,
Shah Jahan v. Inayat Shah and others AIR 1919 Lah. 38; Divisional Superintendent, P.W.R., Lahore v. Muhammad Naseer-ud-Din PLD 1972 Lah. 301; Mst. Khurshid Begum v. Ahmad Bakhsh-and another PLD 1985 SC 405 and Sewa v. Mst. Santi and others 1992 SCMR 1306 rel. 2001 CLC 613 = PLJ 2002 LAHORE 1
106. What Courts to hear appeals. Where an appeal from any order is allowed it shall lie to the Court to which an appeal would lie from the decree in the suit in which such order was made or where such order is made by a Court (not being a High Court) in the exercise of appellate jurisdiction, then to the High Court.
GENERAL PROVISIONS RELATING TO APPEALS
107. Powers of Appellate Court. (1) Subject to such conditions and limitations as may be prescribed, an Appellate Court shall have power-
(a) to determine a case finally ;
(b) to remand a case ;
(c) to frame issues and refer them for trial ;
(d) to take additional evidence or to require such evidence to be taken.
(2) Subject as aforesaid, the Appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Code on Courts of original jurisdiction in respect of suits instituted therein.
1. Powers and functions of an appellate Court. High Court is competent to pass any judgment and decree, which the lower Court is competent to do. 1993 M L D 2105
2. Scope—Appellate Court under Ss. 107(2) & 151, C.P.C. was equipped with powers to pass all such orders which would be necessary to meet ends of justice and such powers could be exercised by Appellate Court in same manner as could be exercised by the Trial Court—Inherent powers under S.151, C.P.C., however, could not be exercised when there was some other specific provision, to cater for such eventuality—Where C.P.C. specially had debarred Appellate Court from awarding costs in case of frivolous and false appeals, it would be quite inconceivable to imagine that inherent powers under C.P.C. could be resorted to for such purpose—Once Appellate Court had found appeals to be absolutely vexatious and frivolous, no costs could have been awarded for such reasons as that would amount to awarding costs under S.35-A, C.P.C. which deals with costs and vexatious and frivolous defences/claims which clearly fell outside jurisdiction of Appellate Court. N.W.F.P. Government v. Abdul Ghafoor Khan PLD 1993 SC 418; Province of Punjab v. Abdul Majid 1997 SCMR 1692; Karamatullah Khan v. Government of West Pakistan PLD 1967 Lah. 171; Conferee Ltd. v. Syed Ali Shah PLD 1977 SC 599 and Manohar Lal v. Seth Hira Lal AIR 1962 SC 527 ref 2002 MLD 1569 Original and appeal proceedings being steps in reality in one cause of process and original matter becoming subjudice on filing of appeal, plaint and memo of appeal to be treated at part in procedural respects in accordance with enabling and very wide provisions made in Sec. 107(2) in that behalf. PLJ 1984 SC 262. Without making any particular reference to particular stage of appeal or document therein is applicable to appeal proceedings-Section 107(2) applicable to memorandum of appeal. There is nothing in the language of section 107, C. P. C. to suggest that it made any specific provision of the C. P. C. in its terms, applicable to appeals. Subsection (1) of section 107 thereof no doubt relates to certain powers and functions of an appellate Court which are spelled out in Order XLI, C. P. C. also (See Order XLI, rules 4, 20, 23. 23-A, 24, 25, 27, 28 and 33); but that does not mean that for this reason the other powers and duties of the trial Court not so easily relatable to specific orders/rules of C. P. C. are not applicable to the appellate Court. Subsection (2) of section 107 would, if that were so, become by and large, redundant. Similar conclusion would be reached when examining whether the provisions specifically made for appeals in Order XLI or elsewhere (other than section 107) furnish complete procedure for the appeals. The answer is in. the negative. But for section 107 particularly subsection (2) thereof the appellate Court would not be able to process the appeal proceedings to the stage of completion for hearing. Order XLI, C. P. C. has not provided for all eventualities. Order VII, rules 11(b) and (c) amongst others by virtue of section 107(2) fill the gaps of procedure which is not directly provided as the appeals in Order XLI, C. P. C. Thus, in the relevant context section 107 without making any particular reference to a particular stage of appeal or a document therein, is applicable to appeal proceedings. The argument that the omission of the phrase `memorandum of appeal from section 107(2) supports the plea ‘that in term it would not apply to appeal and that it is applicable thus only to ‘plaint’, is without any support from the point of view of logic or practice. It is, therefore, obvious that section 107(2) is also applicable to memorandum of appeal. P L D 1984 S.C 289 A I R 1947 Lab. 210 not approved.
3. Court Fee in Appeal:- Change of law effected by Punjab Finance Act, 1973, S. 8 was of only regulatory and procedural type and no one has a vested right in any particular procedure-Court-fee leviable on first appeal in such case to be calculated in accordance with Punjab Finance Act, 1973 and not law which prevailed at time of filing of suit at a tine earlier to said amendment Court-fees paid at time of filing suit, held, deficient for appeal in circumstances. P L D 1984 S.C 289
4. Impleading of party during pendency of appeal. According to Section 22 of Limitation Act, if party is added to suit which has already been instituted, then as regards newly added partly suit shall be deemed to have been instituted when it was so made party. Here in this case, it is not suit but appeal to which respondent No. 3 was added at instance of appellant after period of limitation. Order 41, Rule 20 of Civil Procedure Code empowers appellate court to direct that man who ought to be party in appeal to be made respondent. Rule 10 of Order 1, C.P.C. when had with Section 107 C.P.C. is applicable also to appeal. Order 1, rule 10 of . C.P.C. which empowers court to add person as party who ought to have been joined or whose presense before court is necessary in order to enable court to adjudicate effectually and completely upon all questions involved in suit. According to Section 107 C.P.C. appellate court shall have same powers and to perform same duties as are conferred and imposed by C.P.C. on courts of original jurisdiction in respect of suits. By reading these provisions together, then appellate court can add party to appear, if necessary. Court even otherwise, has got sufficient powers under S. 151 C.P.C. to add any party to appeal. Respondent No. 3, has been impleaded when period of limitation has rule out for filing appeal but that would be of no consequence in view of its subsequent impleadment in appeal. Provisions of S, 22 of Limitation Act are not applicable to appeals. PLJ 1997 Pesh. 120 = 1997 CLC 1046 = NLR 1997 Civil 490.
108. Procedure in appeals from appellate decrees and orders. The provisions of this part relating to appeals from original decrees shall, so far as may be, apply to appeals-
(a) from appellate decrees, and
(b) from orders made under this Code or under any special or local law in which a different procedure is not provided.
1. Second appeal-Procedure :– Procedure for second appeal would, by and large, – have to be discovered from what is prescribed under O. XLI, C. P. C. read with other provisions of C. P. C. particularly those of Ss. 96 to 99, 107 & 108, C. P. C. P L D 1984 S.C 289
2. Judgment in appeal. Mode of. Omission of one of judges of a Division Bench of a High Court to sign a judgment in a Civil appeal though authored by him for an explainable reason shall not vitiate such a judgment in view of sections 99 and 108 CPC so long as above irregularity does not affect merits of case or Jurisdiction of court provided judge concerned remains in service. PLJ 1997 SC 1202 = 1997 SCMR 209.
APPEALS TO THE SUPREME COURT
1[109. When appeals lie to the Supreme Court. An appeal from a judgment, decree or final order of a High Court shall lie to the Supreme Court-
(a) if the amount or value of the subject-matter of the dispute in the Court of first instance was and also in appeal is (unless varied by an Act of Parliament) fifty thousand rupees or upward and the judgment, decree or final order appealed from has varied or set aside the judgment, decree or final order of the Court immediately below ; or
(b) if the judgment, decree or final order involves, directly or indirectly some claim or question respecting property of the like amount or value and the judgment, decree or final order appealed from has varied or set aside the judgment, decree or final order of the Court immediately below ; or
(c) if the High Court certifies that the case involves a substantial question of law as to the interpretation of the Constitution.]
1. Substituted by P.O. 4 of 1975.
AJ&K Interim Constitution Act 1974. Value of suit property exceeding Rs- 50.000/- filing of appeal. A bare reading of clauses (d) and (e) of Section 42(11) of Interim Constitution Act reveals that if amount or value of subject-matter in dispute is not less than Rs. 50.000/- in Court of first instance and in appeal, direct appeal is competent to this Court and it is not necessary to file a petition for leave to appeal under Section 42(12) of Interim Constitution Act. There is no such requirement -under S.C Rules either to obtain a certificate of fitness or valuation from High Court for filing an appeal in S.C . It may also be pointed out that Sections 109 and 110 ‘ C.P-C. and provisions contained in Rule of Order XLV C.P.C. were enacted when Interim Constitution Act. 1974 was not promulgated in Azad Kashmir. After enforcement of said Constitution Act. any provision which is inconsistent with provisions contained in Section 42 or for that matter with any other section of Act same cannot be given effect to. An aggrieved party has right to file direct appeal to Supreme Court. PLJ 1999 SC (AJ&K) 295.
110. Value of subject-matter. 1[Omitted]
1. Omitted by Federal Adaptation of Laws Order, 1975 (P.O. 4 of 1975.
Mode of filing appeal. Land Acquisition Act, 1894 being complete code as regards acquisition of land making of reference under Section 18 thereof in case there was dispute about adequacy of compensation to be .awarded for acquired land to owners thereof and decision/judgment passed by courts on. Such reference. Section 54, Land Acquisition Act, 1894 is also a complete code as regards remedies of aggrieved person against such judgments passed by Courts; it also provides that appeal would be to S.C against judgment of High Court passed in those proceedings with reference to S. 110 C.P.C.. Where no appeal was filed as provided in S, 54, Land Acquisition Act, 1894, legal consequence to follow would be that Judgment and decree would become final as regards, that Act and would be enforced and given effect. Perusal of S. 54, Land Acquisition Act, would however, indicate that Section 110 CPC would not override or control substantive provision of Section 54 Land Acquisition Act, 1894 as regards remedy of appeal itself but only provides that procedure to be followed for filing appeal would be same as provided in Section 110 CPC which laid down certain matters as regards value of subject-matter etc.. Section 110 C.P.C. has been legislated by way of reference in Section 54, Land Acquisition Act, 1894, therefore same would be deemed to have been incorporated in Section 54 of the Act as it was part of C.P.C, on date of its incorporation and would continue to be part of Section 54 thereof, till the section itself was amended and reference to S. 110 C.P.C. was omitted. Mere omission of Section 110 from C.P.C. would not automatically operate as its omission from Section 54, Land Acquisition Act, 1894. PLJ 1999 SC 1068 = 1999 SCMR 319 = NLR 1999 Rev. 90.
111. Bar of certain appeals. Notwithstanding anything contained in section 109 no appeal shall lie to [the Supreme Court]-
(a) from the decree or order of one Judge of a High Court [*****] or of one Judge of a Division Court, or of two or more Judges of such High Court, or of a Division Court, constituted by two or more Judges of such High Court, where such Judges are equally divided in opinion and do not amount in number to a majority of the whole of the Judges of the High Court at the time being ; or
(c) from any decree from which under section 102 no second appeal lies.
APPEALS FROM ORIGINAL DECREES
1. Form of appeal: What to accompany memorandum. (1) Every appeal shall be preferred in the form of a memorandum signed by the appellant or his pleader and presented to the Court or to such officer as it appoints in this behalf. The memorandum shall be accompanied by a copy of the decree appealed from and (unless the Appellate Court dispenses therewith) of the judgment on which it is founded.
(2) Contents of memorandum. The memorandum shall set forth concisely and under distinct heads, the grounds of objection to the decree appealed from without any argument or narrative, and such grounds shall be numbered consecutively.
1. Additional evidence During pendency of appeal
2. Cross-objections against findings of Trial Court
3. Curable irregularity
4. Dismissal of appeal on appellant’s default
5. Forum of appeal
6. Judgment in appeal
7. Judgment of Appellate Court passed in violation of provisions of O. XLI, R.31, C.P.C
8. Judgment of Appellate Court
9. No time fixed by office for re-filing
10. Non-filing of certified copy of decree sheet alongwith memorandum of appeal
11. Condonation of delay
12. Inherent powers
13. Memo of appeal is violative of R, 10–R. 11 ITAT Rules
14. Rule of practice
1. Additional evidence During pendency of appeal:- During pendency of appeal appellant moved an application seeking permission to place a specified mutation on record as additional evidence according to which appellant had inherited shares from inheritance of his real uncle who was issueless, which application was dismissed by the Appellate Court—-Mutation sought to be produced as additional evidence pertained to substantive right of appellant and had direct bearing on merit of’ the case—Validity—Appellate Court should have allowed application to produce evidence and remanded case to Trial Court for a fresh decision after allowing respondents to produce evidence in rebuttal—Order of Appellate Court refusing to grant permission to produce additional evidence had not advanced cause of justice and was illegal, in circumstances—High Court accepting revision petition against judgment of Appellate Court below, sent back the case to District Judge to entrust the same to Civil Judge for a fresh decision after admitting mutation in evidence and allowing opportunity to respondents to adduce evidence, in rebuttal. 2003 MLD 702
2. Cross-objections against findings of Trial Court:- Where neither any appeal nor cross-objections as provided under O.XLI, R.22, C.P.C. were filed against findings of Trial Court, such findings of Trial Court had become final as the same had not been challenged in any Court of law. PLD 2001 Lahore 390
3. Curable irregularity:- Aims to provide that appeal or suit should be presented by a person who is duly authorised in that behalf and making it sure that any appeal or salt which has been filed, has boos actually field on behalf of party concerned and not otherwise—Vakalatnama as well as memorandum of appeal not signed by party concerned though such party have been appearing alongwith counsel—Proceedings this conducted by counsel not invalid for want of signatures—Purpose to sign power of attorney is to eliminate possibility of confusion or fraud—Presence of party with counsel did serve the purpose in instant case and such circumstance showed that counsel acted on instructions of client in absence of authority in writing.P L J 1980 Lahore 256
4. Dismissal of appeal on appellant’s default:- If the Court does not choose to dismiss the appeal, the same has to be adjourned, but R.17, O.XLI, C.P.C. nowhere empowers the Court to render a decision on merits in the absence of the appellant—Decree on merits is envisaged by O.XLI, R.30 and hearing of both the sides is the condition precedent for such a decree. Options legally available to the Court under provisions of Rule 17 of Order XL1, C.P.C. are clear by themselves, which only enable the Court to dismiss the appeal in default. If after admission of the appeal for regular hearing, on the adjourned date of hearing, the appellant is absent, under Order XLI, Rule 17, a discretion is conferred on the Court to dismiss the appeal. The exercise of such power under Order XLI, Rule 17, C.P.C. is not intended to be imperative but is discretionary. The dismissal for want of prosecution under Order XLI, Rule 17, C.P.C. is not a decision on merits, and under Order XLI, Rule 19, on application of the appellant, the Court can re-admit the appeal on such terms as to costs or otherwise as the Court thinks fit, provided the appellant shows sufficient cause for his non-appearance. On the other hand, if the appellant appears and the respondent does not appear, the appeal may be heard ex-parte. If the Court does not choose to dismiss the appeal, it has to be adjourned, but Order XLI, Rule 17, C.P.C. nowhere empowers the Court to render a decision on merits in the absence of the appellant. A decree on merits is envisaged by Order XLI, Rule 30 and hearing of both the sides is the condition precedent for such a decree. M. Muhammad Sadiq and another v. Punjab Road Transport Board through its Managing Director 1991 SCMR 2321; Manager, Jammu and Kashmir State Property in Pakistan v. Khuda Yar and another PLD 1975 SC 678; S.M. Abdullah & Sons v. Pakistan Mercantile Corporation Ltd. and another PLD 1976 Kar. 268; Muhammad Tufail and 5 others v. Din Muhammad through his Legal Representatives PLD 1992 Lah. 152; Prince Sheikh Abdul Qadir v. Nawab Sheikh Nasiruddin and 7 others PLD 1993 Kar. 216 and Malik Muhammad Ahsan and others v. Mst. Hameeda Begum 1999 MLD 1941 ref. Barkat Ullah v. The State 1997 SCMR 274 distinguished. PLD 2003 Lahore 27
5. Forum of appeal:- Jurisdictional value given in plaint, would determine forum of appeal Jurisdictional value given in plaint of pre emption suit, held, could not unilaterally be altered by pre emptors to choose forum of appeal .1986 M L D 2885
6. Judgment in appeal:- Default by appellants—Neither the counsel for the appellants was present or heard nor the counsel for respondents was in a position to argue the case—Decision of appeal by District Judge on merits in view of direction by the Member, Inspection Team of the High Court to the effect that the appeal be decided by as of specified date—Validity—Held, remedy of appeal, in particular, the first appeal, is a right which a suitor is entitled to avail under the law i.e. Civil Procedure Code itself—When an appeal is preferred by a party an indefeasible right of hearing vests in him, which cannot be stultified or transgressed except in accordance with law—Direction of the nature, issued by the Member, Inspection Team of the High Court, which was at the most administrative in nature could not be made a basis for denying the appellants the right of hearing as envisaged by O.XLI, R.30, C.P.C.—Court which is charged with onerous duly and responsibility of administering justice is expected to maintain a balance so that neither the matter is delayed unnecessarily nor its disposal is effected in such a hasty manner as may be violative of the law and fairness—Judicial power or jurisdiction to administer justice in accordance with law cannot be abdicated merely to honour any executive or administrative instruction or directive—Court, in order to keep the streams of justice clean and unpolluted, is expected to shun every extraneous instruction/direction and act purely in accordance with law—Direction of the Member, Inspection Team of the High Court can only be regarded as directory, cabling the Court to expedite the hearing/decision, but in no case can be given supremacy over the explicit legal provisions—If the counsel for appellants was not in a position to advance arguments on the date fixed due to his engagements before High Court the case could be adjourned to the next day even on payment of costs in order to compensate the other side for any inconvenience—Appeal, thus, could not be dismissed by the District Judge on merits, which exercise undertaken by him was futile and violative of law. PLD 2003 Lahore 27
7. Judgment of Appellate Court passed in violation of provisions of O. XLI, R.31, C.P.C :- Appellate Court disposed of appeal without passing a speaking order and discussing evidence produced by respondent—Appellate Court did not give any reason for its decision as required by provisions of O.XLI, R.31, C.P.C.—High Court accepted revision petition, set aside impugned judgment and remanded case to Appellate Court for its decision afresh within specified time. Askar Ali and others v. The State PLD 1959 SC (Pak.) 251 and Muhammad Tufail v. Mst. Sardar Bibi and 2 others 1998 CLC 1969 rel. 2003 CLC 504
8. Judgment of Appellate Court:- Such judgment should state points for determination, its decision thereon and reasons for its decision. 2003 CLC 504
9. No time fixed by office for re-filing:- Appeal re-filed without unnecessary delay could not be said to have gone out of limitation—Appeal once validly instituted within prescribed time of limitation, mere technical office objection could not take away vested right of litigant. PLD 2003 Lah. 398
10. Non-filing of certified copy of decree sheet alongwith memorandum of appeal:- Appellant was required to append with memorandum of appeal two documents i.e. copy of decree appealed from and copy of judgment upon which decree was founded in terms of O.41, R. 1 C.P.C. Appellate Court although has power to dispense with copy of judgment but has no power to dispense copy of decree. Memorandum of appeal must be accompanied by copy of decree appealed from. Court has no power to dispense with provision regarding presentation of copy of decree. Appeal presented without copy of decree was not valid appeal. Position would be the same where decree has not yet been prepared or where appellant was under wrong impression that same has not been prepared. Appeal must be rejected where copy was not filed within prescribed limitation period. High Court, thus, committed no illegality in dismissing appeal as being in competent. PLJ 1999 SC (AJK) 69.
11. Condonation of delay:– Filing copy of decree sheet alongwith memorandum of appeal was mandatory requirement of O.41, R.I C.P.C.. Proper course for appellant was to have waited for preparation of copy of decree and thereafter to file appeal, in that eventuality, he was entitled to condonation of delay, if any. Appellant Court had given two adjournments to appellant for filing copy of decree sheet but the same was not filed resulting in dismissal of appeal. Copy of decree sheet filed after 147 days of order of Trial Court would not render institution of appeal before Appellate Court as valid. There being no properly instituted appeal before Appellate Court, appeal filed, thereafter, before High Court was incompetent. Appeal against order of High Court was, thus, not warranted and was dismissed in circumstances. PLJ 2000 SC (AJ&K) 325.
12. Inherent powers:- Appellate Court in slip-shod manner without holding inquiry rejected memo of appeal under 0-41, R. 3 C.P.C. which was admitted to regular hearing by him and record of trial Court had been summoned where impugned judgment and decree did exist and it could be found out from record that appellant had really applied for certified copies of judgment and decree within requirement of O.41, R. 1, C.P.C.. Court was bound to see whether party had obtained copies of judgment and decree in time and placed the same within limitation or whether appeal was filed improperly. Court in such case cannot reject memo of appeal under O.41. R. 3 C.P.C.. Placing of wrong judgment and decree on memo of appeal appeared to be bona fide mistake. Court has inherent power to do justice and to redress wrong instead of trying to dispose of case on mere technicalities. Both memo of appeals were checked by Court officials and no objection was raised that judgment and decree were wrongly placed. Appellate Court could have decided and exercised its power ex-debito justice to do that real and substantial justice for administration of which Court had power to hold inquiry into bona fides of parties and that decree-sheet of case did exist on appeal decided by Appellate Court and if it did exist then party who was not at fault should not suffer. Judgment and decree passed by Appellate Court was set aside and case was remanded to Appellate Court to summon record of relevant case and hold inquiry and on satisfaction that party was not at fault and misplacement of decree sheet was bona fide mistake, decide the appeal on merits after fulfilment of necessary legal formalities. PLJ 2000 Lah. 256 = 2000 MLD 466.
13. Memo of appeal is violative of R, 10–R. 11 ITAT Rules:- For the various reasons recorded in C.T.R. No. 89/93, in which the issue has been dealt with at length in the light of (2000) 82 Tax 67 and 2000 PTD 2903 we will allow this appeal and set aside the impugned judgment of the Tribunal–The appeal filed by the appellant shall therefore, be deemed pending before it be heard and disposed of one merits in accordance with law. 2001 PCTLR 822
14. Rule of practice:- It is not an inflexible rule of practice that the first appeal from an order should be invariably admitted which in no case can be dismissed in limine. Depending upon the facts and circumstances of each case and the statute under which an appeal is filed it is difficult to lay down an absolute rule of practice, for all cases. The dismissal of first appeal in limine is not a general rule but can be resorted to in those cases which are of such a simple nature that no question of law and facts arises for consideration. Rule 11 of Order XLI of the Code of Civil Procedure does certainly give the Appellate Court, in an appropriate case, the power to dismiss an appeal in limine. Abid Hussain v. Mst. Afsar Jehan Begum, and another PLD 1973 SC 1 and Ali Muhammad v. Commissioner Afghan Refugees, N.-W.F.P. and another 1995 SCMR 1675 ref. PLD 2002 Supreme Court 720
2. Grounds which may be taken in appeal. The appellant shall not, except by-leave of the Court, urge or be heard in support of any ground of objection not set forth in the memorandum of appeal, but the Appellate Court, in deciding the appeal, shall not be confined to the memorandum of appeal or taken by leave of the Court under this rule:
Provided that the Court shall not rest its decision on any other ground unless the party who may be affected thereby has had a sufficient opportunity of contesting the case on that ground.
Ground not set forth in memo cannot be urged—Memorandum is a concise statement and a notice of specific grounds proposed to be urged—Party cannot be allowed to urge a point which is only a bald ground—Drawing up of specific grounds and eliminating superfluous redundancies results in avoidance of inordinate delay too. P L J 1980 Lahore 333
3. Rejection or amendment of memorandum. (1) Where the memorandum of appeal is not drawn up in the manner hereinbefore prescribed, it may be rejected, or by returned to the appellant for the purpose of being amended within a time to be fixed by the Court or be amended then and there.
(2) Where the Court rejects any memorandum, it shall record the reasons for such rejection.
(3) Where a memorandum of appeal is amended, the Judge, or such officer as he appoints in this behalf, shall sign or initial the amendment.
Rule 3 of O.41 being not exhaustive, clause (c) of O.7, R- 11 relating to drawing up of plaint on properly stamped paper as essential requirement to save it from ultimate rejection for non¬payment of Court-fee, also to apply to appeals. PLJ 984 SC 262.
Order 41, rule 3, C. P. C. is to be read with the other relevant provisions of C. P. C. regarding drawing up of and processing of the `plaint’ as applicable to appeal. The expression ‘hereinbefore’ has also been used in this context in rule 3 in a wider sense as relatable in rules 1 and 2 of Order 41, and other rules in C, P. C. which would be attracted by reference to section 107(2), C. P. C. The same as discussed earlier, provides for all relevant matters which have not been specifically mentioned in rule 3 of Order 41, in this behalf. And that being so, clause (c) of Order 7, rule l l which relates to the drawing up of the plaint on a properly stamped paper as an essential requirement, to save it from ultimate rejection for nonpayment of the court-fee would also apply to the appeals. Accordingly it is held that Order 41, rule 3 is not exhaustive in this behalf.
It will not be correct to say that the `plaint’ and `memorandum of appeal’ are such documents that they cannot at all be treated at par in procedural respects in accordance with the enabling and very wide provision in that behalf made in section 107(2), C. P. C. Accordingly there is no justification for making an exception.
There is another aspect of the matter. The application of Order 7, rule 11(b)(c) to appeals in one sense at least is salutary for the progress of the appeal, for hearing. If it is applied then as would be presently shown it might not be possible to reject a memorandum of appeal on grounds of deficiency of court-fee unless in accordance therewith an opportunity is provided, to supply the required court-fee. It is also conducive for a purpose amongst others, for which Order 7, rule 11(b) and (c) were enacted namely collection of State revenue in so far as appeal stage of the Court process is concerned. It is obligatory under Order 7, rule 11(c) to afford one opportunity to supply the deficiency in court-fee, before rejection of the plaint under the said provision. There are two interpretations of section 107(2) (when read with Order 7, rule 11(c) and Order 41, rule 3) then the one favoring the saving of the appeal proceedings from rejection on ground connected with collection of public revenue by affording the said opportunity, would have to be adopted. Thus, the age old conflict on this fiscal-cum-procedural question is resolved in favour of the subject. The result is that Order 7, rules 11(b) and (c) applies to plaints as also to memoranda of appeals. P L D 1984 S.C 289
4. One of several plaintiffs or defendants may obtain reversal of whole decree where it proceeds on ground common to all. Where there are more plaintiffs or more defendants than one in a suit, and the decree appealed from proceeds on any ground common to all the plaintiffs or to all the defendants, any one of the plaintiffs or of the defendants may appeal from the whole decree, and thereupon the Appellate Court may reverse or vary the decree in favour of all the plaintiffs or defendants, as the case may be.
It has been provided under Rule 4. Order 41, that where there are more plaintiffs or more defendants than one in a suit and decree appealed from proceeds on any ground common to all plaintiffs or all defendants, any one of plaintiffs or of defendants could file an appeal from whole decree and thereupon Appellate Court could reverse or vary decree in favour of all plaintiffs or defendants as case may be even though only one of plaintiffs or defendants had appealed against said decree while Rule 33 of same Order provides that Appellate Court could pass any decree and make any order which ought to have been passed or make and could also pass and make such further or other decree or order as case may require and this power may be exercised by Appellate Court notwithstanding that appeal is as to a part only of decree and may also be exercised in favour of all or any of respondents or parties although such respondent or party may not have filed any appeal or objection. PLJ 1997 Lah. 1206 = 1997 CLC 243.
O. 41 rule 4. Rule 4 applies where decree appealed from proceeds on ground common to all plaintiff or defendants while rule 33 is wider in scope and applied even where decree does not proceed on any ground common lo all persons against whom it was passed. High Court is of the view that the provision is not mandatory but discretionary and has to be applied, if necessary in the ends of justice, with due care and caution. PLJ 1996 Lah. 856 = 1996 CLC 1403.
High Court fell into error when thinking that power under Rule 20 could be exercised only on application to be made by present appellant. PLJ 1989 SC 433.
STAY OF PROCEEDINGS AND OF EXECUTION
5. Stay by Appellate Court. (1) An appeal shall not operate as a stay of proceedings under a decree or order appealed from except so far as the Appellate Court may order, nor shall execution of a decree by stayed by reason only of an appeal having been preferred from the decree, but the Appellate Court may for sufficient cause order stay of execution of such decree.
(2) Stay by Court which passed the decree. Where an application is made for stay of execution of an appealable decree before the expiration of the time allowed for appealing therefrom, the Court which passed the decree may on sufficient cause being shown order the execution to be stayed.
(3) No order for stay of execution shall be made under sub-rule (1) or sub-rule (2) unless the Court making it is satisfied:
(a) that substantial loss may result to the party applying for stay of execution the order is made;
(b) that the application has been made without unreasonable delay; and
(c) that security has been given by the applicant for the due performance of such decree or order as may ultimately be binding upon him.
(4) Notwithstanding anything contained in sub-rule (3), the Court may make an ex parte order for stay of execution pending the hearing of the application.
Conditional Stay. Provision of rule 8-A envisages that no security would be required where a judgment debtor is Government and seeks relief as provided in O.41 rules 5 & 6 CPC. Even if appeal is dismissed, respondent could easily recover decretal amount from appellants. Maintainability of suit is also under challenge. Impugned decree was suspended without calling upon appellants to furnish security. PLJ 1997 Kar. 832 = PLD 1997 Kar. 351. Contention that appellant being Government was exempt from furnishing security of decretal amount, what to speak of its actual deposit in cash. Held: On mere filing of appeal by Government or any public officer, there cannot be automatic grant of stay of execution of decree. Held further: For making a case for stay of execution of money decree, Rule 8-A of Order 27. CPC is to be read with Rules 5 & 6 of Order 41. CPC, and when for its stay a convincing ground is made out, then stay can be ordered without furnishing of security, if appellant happened to be Government or public servant- Held further: High Court was satisfied that appellants had not been able to show sufficient cause and further they would not sustain substantial loss within meaning of Rule 5 of Order 41, CPC, if stay of execution was not ordered. High Court exercised discretion on sound principles of law governing stay of execution of money decrees, thus, no exception could be taken to it. PLJ 2001 SC 15 = 2001.SCMR377.
Inability of Company to pay its debts—Defence by the Company was that since the appeal was pending and the debts were not finally determined as the controversy before the Appellate Court would re-open the entire issue petition for winding-up should not proceed—Such proposition might be true where the matter related to the appellate proceedings for the purpose of deciding the appeal but could not be extended for other collateral proceedings, more particularly where the order appealed against had not been stayed by the Appellate Court—Merely filing of an appeal would not operate as suspension or stay of the judgment appealed against in view of O.XLI, R. 5(1), C.P.C.- Filing of appeal, in circumstances, would not render the controversy exposed open or subject to determination as the debt had been determined and prima facie was due and payable. 2003 C L D 1075
6. Security in case of order for execution of decree appealed from. (1) Where an order is made for the execution of a decree from which an appeal is pending, the Court which passed the decree shall, on sufficient cause being shown by the appellant, require security to be taken for the restitution of any property which may be or has been taken in execution of the decree or the decree or for the payment of the value of such property and for the due performance of the decree or order of the Appellate Court, or the Appellate Court may for like cause direct the Court which passed the decree to take such security.
(2) Where order has been made for the sale of immovable property in execution of a decree, and an appeal is pending from such decree, the sale shall, on the application of the judgment-debtor to the Court which made the order, be stayed on such terms as to giving security or otherwise as the Court thinks fit until the appeal is disposed of.
7. No security to be required from the Government or a Public officer in certain cases. Rep. by the A.0.. 1937.
8. Exercise of powers in appeal from order made in execution of decree. The powers conferred by Rules 5 and 6 shall be exercisable where an appeal may be or has been preferred not from the decree but from an order made in execution of such decree:
Provided that, where such appeal has been preferred by the judgment-debtor, he shall be required, unless the Court is of opinion that prima facie the appeal is one which must succeed owing to an error apparent on the face of the record:
(a) in the case of a decree for the payment of money, to deposit the decretal amount or to furnish security for its payment, and
(b) in the case of any other decree, to furnish security for the due performance of the decree].
Decree for payment of money. It is discretionary with Appellate Court to pass orders to deposit decretal amount or to furnish security for its payment. In case of any other decree, Appellate Court may direct furnishing of security for due performance of decree. Order of Appellate Court directing cash deposit of decretal amount was unexceptional in circumstances of case and even otherwise S.C ordinarily does not interfere with interlocutory orders of High Court except in exceptional circumstances. PLJ 2000 SC 329.
PROCEDURE ON ADMISSION OF APPEAL
9. Registry of memorandum of appeal. (1) Where a memorandum of appeal is admitted, the Appellate Court or the proper officer of that Court shall register the appeal in a book to be kept for the purpose.
(2) Register of Appeals. Such book shall be called the Register of Appeals.
10. Appellate Court may require appellant to furnish security for costs. (1) The Appellate Court may, in its discretion, either before the respondents is called upon to appear and answer or afterwards on the application of the respondent, demand from the appellant security for the cost of the appeal, or of the original suit, or of both.
(2) Where appellant resides out of Pakistan etc. Provided that the Court shall demand such security in all cases in which the appellant is residing out of Pakistan, and is not possessed of any sufficient immovable property within Pakistan other than the property (if any) to which the appeal relates.
(3) Where such security is not furnished within such time as the Court orders, the Court shall reject the appeal.
11. Power to dismiss appeal without sending notice to lower Court. (1) The Appellate Court, after sending for the record if it thinks fit so to do, and after fixing a day for hearing the appellant or his pleader and hearing him accordingly if he appears on that day, may dismiss the appeal without sending notice to the Court from whose decree the appeal is preferred and without serving notice on the respondent or his pleader.
(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 notified to the Court from whose decree the appeal is preferred.
1. Defects/illegalities were apparent:- Respondent filed objection petition for setting aside the arbitration awards which was accepted by the District Judge and first appeal by the petitioner against the order of the District Judge, was dismissed by the High Court—Contention of the petitioner was that dismissal of the first appeal in limine by the High Court was against the established principles of law and judgment was passed in disregard of the provisions of Arbitration Act, 1940 and was also against the evidence on record and there was no justification for the interference with the award—High Court had justifiably come to the conclusion that in the present case the defects/illegalities noted by the District Judge were apparent on the face of the record in which the decision on affidavits could be safely given without holding a detailed inquiry—Judgment of the High Court was just and fair in the facts and circumstances of the case which did not call for any interference by Supreme Court. Abid Hussain v. Mst. Afsar Jehan Begum and another PLD 1973 SC 1 and Ali Muhammad v. Commissioner Afghan Refugees, N.-W.F.P. and another 1995 SCMR 1675 refPLD 2002 Supreme Court 720
2. Dismissal of appeal in limine without summoning record of Trial Court and without considering grounds specifically taken in memo. of appeal—Appellate Court had dismissed the appeal without considering the plea of limitation taken in memo. of appeal and recording proper findings on the issue—Both such issues could not be decided without summoning record and affording opportunity of hearing to parties concerned—Both on facts and law, it was not a case, which could be dismissed in limine by final Court of facts—High Court accepted revision petition and set aside impugned judgment/decree holding that appeal would be deemed to be pending and would be decided in accordance with law. 2002 CLC 969
3. Dismissal of Appeal in Limine:- Leave to appeal was granted to consider the questions whether the High Court Appeal could be dismissed in limine wihtout sending for the record and whether O. XLI, R. 11(1), C.P.C. could be in invoked
4. Principles No restraints on the powers of Division Bench such as those construed qua Single Judges having Regular First Appeals governed by High Court (Lahore) Rules and Orders, Vol. V, Chap. 3-B, R. 1, nor is there any restrictive practice — Original side jurisdiction from which the High Court appeal was occasioned , is peculiar to the High Court of Sindh and may not be saddled with the technicalities under O. XLI, C.P.C. applicable stricto senso to appeals mandated by sec. 96, C.P.C. — High Court , while exercising jurisdiction under S. 3, Law Reforms , Ordinance, 1972, has to apply its mind to the controversy involved and , if and when finding necessary , have the original side record placed before it.
5. Rule of practice—It is not an inflexible rule of practice that the first appeal from an order should be invariably admitted which in no case can be dismissed in limine. Depending upon the facts and circumstances of each case and the statute under which an appeal is filed it is difficult to lay down an absolute rule of practice, for all cases. The dismissal of first appeal in limine is not a general rule but can be resorted to in those cases which are of such a simple nature that no question of law and facts arises for consideration. Rule 11 of Order XLI of the Code of Civil Procedure does certainly give the Appellate Court, in an appropriates case, the power to dismiss an appeal in limine. Abid Hussain v. Mst. Afsar Jehan Begum, and another PLD 1973 SC 1 and Ali Muhammad v. Commissioner Afghan Refugees, N.-W.F.P. and another 1995 SCMR 1675 ref. PLD 2002 Supreme Court 720
12. Day for hearing appeal. (1) Unless the appellate Court dismisses the appeal under rule 11, it shall fix a day for hearing the appeal,
(2) Such day shall be fixed with reference to the current business of the Court, the place of residence of the respondent, and the time necessary of for the service of the notice of appeal, so as to allow the respondent sufficient time to appear and answer the appeal or such day.
13. Appellate Court to give notice to Court whose decree appealed from. (1) Where the appeal is not dismissed under rule 11, the Appellate Court shall send notice of the appeal to the Court from whose decree the appeal is preferred.
(2) Transmission of papers to Appellate Court. Where the appeal is from the decree of a Court, the records of which are not deposited in the Appellate Court, the Court receiving such notice shall send with all practicable despatch all material papers in the suit, or such papers in the suit, or such papers as may be specially called for by the Appellate Court.
(3) Copies of exhibits in Court whose decree appealed from. Either party may apply in writing to the Court from whose decree the appeal is preferred, specifying any of the papers in such Court of which he requires copies to be made; and copies of such papers shall be made at the expense of, and given to, the applicant.
14. Publication and service of notice of day for hearing appeal. (1) Notice of the day fixed under rule 12 shall be affixed in the Appellate Court-house, and a like notice shall be sent by the Appellate Court to the Court from whose decree the appeal is preferred, and shall be served on the respondent or on his pleader in the Appellate Court in the manner provided for the service on a defendant of a summons to appear and answer, and all the provisions applicable to such summons, and to proceedings with reference to the service thereof, shall apply to the service of such notice.
(2) Appellate Court may itself cause notice to be served. Instead of sending the notice to the Court from whose decree the appeal is preferred, the Appellate Court may itself cause the notice to be served on the respondent or his pleader under the provisions above referred to.
15. Contents of notice. The notice to the respondent shall declare that, if he does not appear in the Appellate Court on the day so fixed, the appeal will be heard ex parte.
PROCEDURE ON HEARING
16. Right to begin. (1) On the day fixed or on any other day to which the hearing may be adjourned, the appellant shall be heard in support of the appeal.
(2) The Court shall then, if it does not dismiss the appeal at once, hear the respondent against the appeal, and in such case the appellant shall be entitled to reply.
17. Dismissal of appeal for appellants default. (1) Where on the day fixed, or on any other day to which the hearing may be adjourned, the appellant does not appeal is called on for hearing Court may make an order that the appeal be dismissed.
(2) Hearing appeal ex parte. Where the appellant appears and the respondent does not appear, the appeal shall be heard ex parte.
Dismissal of appeal on appellant’s default- Procedure- If the Court does not choose to dismiss the appeal, the same has to be adjourned, but R. 17, O.XLI, C.P.C nowhere empowers the court to render a decision on merits in the absence of the appellant– Decree on merits in envisaged by O.XLI, R. 30 and hearing of both the sides is the condition precedent for such a decree. PLD 2003 Lah. 27
Neither the counsel for the appellants was present or heard nor the counsel for respondents was in a position to argue the case- Decision of appeal by District judge on merits in view of direction by the Member, Inspection Team of the High Court to the effect that the appeal be decided by as of specified date-Validity- Held, remedy of appeal, in particular, the first appeal, is a right which a suitor is entitled to avail under the law i.e. Civil procedure Code itself- When an appeal in preferred by a party and indefeasible right of hearing bests in him, which cannot be stultified or transgressed except in accordance with law—Direction of the nature, issued by the Member, Inspection Team of the High court, which was at the most administrative in nature could not be made a basis for denying the appellants the right of hearing as envisaged by O. XLI, R. 30, C.P.C- Court which is charged with onerous duty and responsibility fo administering justice is expected to maintain a balance so that neither the matter is delayed unnecessarily nor its disposal is effected in such a hasty miner as may be violative f the law and fairness- Judicial power or jurisdiction to administer justice in accordance with law cannot be abdicated merely to honour any executive or administrative instruction or directive- Court, in order to keep the streams of justice clean and unpolluted, is expected to shun every extraneous instruction/direction and act purely in accordance with law- Direction of the Member, Inspection Team of the High Court can only be regarded as directory, enabling the Court to expedite the hearing/decision, but in no case can be given supremacy over the explicit legal provisions- If the counsel for appellants was not in a position to advance arguments on the date fixed due to his engagements before High Court the case Could be adjourned to the next day even on payment of costs in order to compensate the other side for any inconvenience- Appeal, thus, could not be dismissed by the District judge on merits, which exercise undertaken by him was futile and violative of law. PLD 2003 Lah. 27
Application for readmission of appeal—Appellant had contended that he failed to appear as he understood date of hearing different to the one fixed for hearing the appeal and he had told the wrong date to the counsel as well—Counsel for appellant could not explain his absence and had not filed any affidavit in support of stand taken by the appellant—Counsel for appellant neither had produced his brief nor his case diary to prove assertion made by his client/appellant in his application—Appeal was rightly dismissed in default in circumstances, 2001 MLD 1091
But Whenever appeal was admitted and it contained arguable points then Appellate Court should avoid from disposing of appeal on technical grounds especially for non-prosecution. Law favours adjudica-tion of rights of parties on merits rather than disposal of same in summary manner or on technical grounds. Where principles of natural justice were fully -ignored in passing order of dismissal of appeal, such order would be deemed to be in excess of jurisdiction. PLJ 1998 Kar. 105 = 1998 MLD 150. Pre–¬requisities. Appeal could be dismissed for default or non-prosecution when impression was created or statement was given by counsel for appellant or on his behalf that he/she had no interest in appeal. Where counsel for appellant remained absent from Court without any intimation, then it could be presumed by Court that no one. particularly appellant, was interested in appeal, thus. same could be dismissed under O.41, R. 17. C.P.C- Where, however, counsel had sent application for adjournment or intimation to Court that he/she was unable to attend Court on account of certain reasons then such counsel was constructively present. Preusmption of “no interest” would be baseless especially when reasons mentioned in request for adjournment through application, intimation or by some other means were not based on falsehood. PLJ 1998 Kar. 105 = 1998 MLD 150.
18. Dismissal of appeal where notice not served in consequence appellants failure to deposit costs. Where on the day fixed, or on any other day to which the hearing may be adjourned, it is found that the notice to the respondent has not been served in consequence of the failure of the appellant to deposit, within, the period fixed, the sum required to defray the cost of serving the notice, the Court may make an order that the appeal be dismissed:
Provided that no such order shall be made although the notice has not been served upon the respondent, if on any such day the respondent appears when the appeal is called on for hearing.
19. Re-admission of appeal dismissed for default. Where an appeal is dismissed under rule 11, sub-rule (2) of rule 17 or rule 18, the appellant may apply to the Appellate Court 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 or from depositing the sum so required, the Court shall re-admit the appeal on such terms as to costs or otherwise as it thinks fit.
1. Dismissal of Appeal on Merits in Absence of Council:- Appellate Court would have no jurisdiction to dismiss appeal on merits in absence of appellant or his counsel. PLJ 1993 Kar. 100
2. Illness of senior counsel:- Plea advanced by counsel for appellant for his absence was of his sudden illness. Counsel’s such plea was supported by his and his junior’s that he had made request for adjournment of case due to illness of senior counsel but his request was turned down. No reason was pointed out to disbelieve said affidavits. Application for restoration of appeal was allowed. Appeal was restored and re-admitted for regular hearing. PLJ 1997 Kar. 881 = 1997 CLC 689.
3. Limitation:- Re-admission of an appeal dismissed for non-appearance of appellant and his Advocate is governed by Article 168 of Limitation Act and not by Article 181. In such situation application under 0- 41 R. 19 is to be submitted within thirty days whereas, present application has been filed after about nearly 9 months. Sufficient cause has not been shown for non-appearance on the day on which appeal was called on by applicant and his advocate. PLJ 1997 Kar. 510 = 1997 MLD 2884.
4. Mistake to notify the correct date -No counter affidavit filed-Deponent also not subjected to cross examination, statement of appellant by way of affidavit remaining unchallenged. explanation for nonappearance on date of hearing by bona-fide mistake to notify the correct date sufficient Case remanded and District Judge directed to restore appeal. PLJ 1981 Karachi 82
5. Negligence of petitioner’s counsel Only reason advanced for re-admission of appeal is negligence on part of petitioner’s counsel. Negligence of counsel is never considered to be sufficient cause for restoration of appeal nor for condonation of delay in filing petition for re-admission. Obligation of appellant to be vigilant in prosecution of appeal after engaging counsel does not absolve him from bis duty to see that his appeal is properly and diligently prosecuted. Whole blame cannot be shifted only to counsel of petitioner, but he himself is also responsible for fate of appeal. There is no explanation as to why he kept silent and did not enquire about hearing of appeal for eight months. Petitioner is ginlty of positive malafides or lack of bona fides and gross negligence. Not entitled for any indulgence. PLJ 1993 Lah. 1199 = 1999 CLC 45.
6. Procedure—If the Court does not choose to dismiss the appeal, the same has to be adjourned, but R.17, O.XLI, C.P.C. nowhere empowers the Court to render a decision on merits in the absence of the appellant—Decree on merits is envisaged by O.XLI, R.30 and hearing of both the sides is the condition precedent for such a decree. Options legally available to the Court under provisions of Rule 17 of Order XL1, C.P.C. are clear by themselves, which only enable the Court to dismiss the appeal in default. If after admission of the appeal for regular hearing, on the adjourned date of hearing, the appellant is absent, under Order XLI, Rule 17, a discretion is conferred on the Court to dismiss the appeal. The exercise of such power under Order XLI, Rule 17, C.P.C. is not intended to be imperative but is discretionary. The dismissal for want of prosecution under Order XLI, Rule 17, C.P.C. is not a decision on merits, and under Order XLI, Rule 19, on application of the appellant, the Court can re-admit the appeal on such terms as to costs or otherwise as the Court thinks fit, provided the appellant shows sufficient cause for his non-appearance. On the other hand, if the appellant appears and the respondent does not appear, the appeal may be heard ex-parte. If the Court does not choose to dismiss the appeal, it has to be adjourned, but Order XLI, Rule 17, C.P.C. nowhere empowers the Court to render a decision on merits in the absence of the appellant. A decree on merits is envisaged by Order XLI, Rule 30 and hearing of both the sides is the condition precedent for such a decree. M. Muhammad Sadiq and another v. Punjab Road Transport Board through its Managing Director 1991 SCMR 2321; Manager, Jammu and Kashmir State Property in Pakistan v. Khuda Yar and another PLD 1975 SC 678; S.M. Abdullah & Sons v. Pakistan Mercantile Corporation Ltd. and another PLD 1976 Kar. 268; Muhammad Tufail and 5 others v. Din Muhammad through his Legal Representatives PLD 1992 Lah. 152; Prince Sheikh Abdul Qadir v. Nawab Sheikh Nasiruddin and 7 others PLD 1993 Kar. 216 and Malik Muhammad Ahsan and others v. Mst. Hameeda Begum 1999 MLD 1941 ref. Barkat Ullah v. The State 1997 SCMR 274 distinguished. PLD 2003 Lahore 27
7. Re-admission and condonation of delay. Earlier provisions of Section 5 of .Limitation Act were not applicable and period of limitation provided for re-admission of appeal could not be extended. Through Act, IV of 1990 amendment was made in Order 41 C.P.C. and sub-rule (2) was added to Rule-19. After said amendment, delay in filing petition for re-admission of appeal can be condoned if sufficient cause is shown for delay. Petition for re-admission is barred by 119 days. No sufficient cause existed for condonation of delay. It is well established principle of law that where valuable rights are accrued to party for lapse of time due to negligence or lack of bona fides etc. such party cannot be deprived of such rights except . where sufficient cause is shown. Court has no jurisdiction to extend time as petitioner was grossly negligent and inactive. Petition for condonation and re-admission fail and are dismissed in limine. PLJ 1998 Lah. 1199 = 1999 CLC 45.
8. Restoration of appeal. There was no delay in filing of application and quick action, was evidence of bona-fide of appellant. Application was supported by affidavit of advocate and affidavit of party. Copies of brief and diary, supporting plea was annexed, which was prima facie indicative of fact. that date was inadvertently noted. In matters of restoration of cases, generous consideration has to be given. Law always favour adjudication on merits, rather than non-suiting parties on technicalities. Wrong noting of date, has always been considered, to be good ground for restoration of suit/appeal. PLJ 1998 Lah. 1512 = 1999 MLD 2429.
20. Power to adjourn hearing and direct person appearing interested to be made respondents. Where it appears to the Court at the hearing that any person who was a party to the suit in the Court from whose decree the appeal is preferred but who has not been made a party to the appeal, is interested in the result of the appeal, the Court may adjourn the hearing to a future day to be fixed by the Court and direct that such person be made a respondent.
Whether appeal before High Court was not properly constituted for non-impleading necessary party and was fatal. Provisions of Rule 20 of order 41, C.P.C. shows that appellate court is empowered during hearing of appeal to implead any person as respondent who was party to suit’ in Court from whose decree appeal is preferred but was not made -party to appeal and that such person who is required to be joined in appeal, is interested in result of appeal. Therefore, it is left to discretion of Appellate Court to determine whether party who is required to be arrayed as one of respondent is necessary party and interested in result of appeal. It is to be seen that under Order 41, Rule 20, C.P.C, no consequences is provided for error if appeal was filed without impleading necessary or interested person. In order to determine that non-joining of Government of Sindh as one of respondent before Appellate .Court was fatal to proceedings, it would be, pertinent to see that in .that manner defendant No. 2 would have been affected as result of disposal of said appeal., In case, appeal had been allowed by District Judge, definitely it would not, have been to prejudice or to disadvantage of defendant/Government. -All relevant documents upon which’ plaintiff had based his claim were already brought on record by him- Real contest of ownership, thus appears to be between plaintiff and defendant No. 1 and Provincial Government (defendant No. 2) does not appear to be interested in decision of litigation. No claim was set up by this defendant bn suit property. It appears to be Proforma defendant. Objection has been .raised at very belated stage. Despite fact that appeal before District Judge was pending for period of nearly five years, respondent No. 1 never raised this objection. In case said Government had been interested in proceedings and had been adversely affected by any judgment or decree, it would have filed appeal. From conduct -of Government/ defendant before trial Court as well as before this Court, it is now established that Government is not interested in dispute between applicant ,and respondent No, 1. It was not shown that defendant No. 2 was necessary. party and in its absence Appellate Court was not able to effectively and properly adjudicate all issues involved in appeal. No-joinder of Government at appellate stage was not fatal. Objection over ruled. PLJ 1998 Kar. 289 = 1998 CLC 911.
21. Re-hearing on application of respondent against whom ex parte decree made. Where an appeal is heard ex parte and judgment is pronounced against the respondent he may apply to the Appellate Court to re-hear the appeal; and, if he satisfies the Court that the notice was not duly served or that he was prevented by sufficient cause from appearing when the appeal was called on for hearing the Court shall re-hear the appeal on such terms as to costs or otherwise as it thinks fit to impose upon him.
Re-hearing on application of respondent against whom ex parte decree made. Two points were to be examined, namely whether applicant (appellant) was duly served and where petition for rehearing of appeal was made within time. Transferee Court issued notice Pairui to applicant (now appellant) but he could not be served in person. Application for rehearing of appeal decreed ex parts, could not be summarily rejected without holding enquiry into question of due service of notice and also sufficiency of cause given for condoning default in appearance. Question of limitation was closely linked with and dependent upon related important question of due service of notice in appeal. Since impugned decision was arrived at without investigation of disputed issues, it could not be upheld and allowed to be maintained. Appeal accepted and case remanded for fresh decision of appeal. PLJ 1994 Lah. 119 = 1994 CLC 391.
Where No personal service was effected on defendants. Substituted service effected in local newspapers was not in accordance with law and address of defendants in publication and plaint was different. Ex parte proceedings against defendants. Learned District Judge totally lost of provisions of Order V, rule 20 C.P.C.. He did not come to definite conclusion that respondents were avoiding service” wilfully and only after observing that respondents could not be served inspite of summons having been sent through registered letters several time, he opted to proceed for getting them served through citation. Better course for him would have been first to have awaited return of process issued in names of respondents and if there was report that they were not available in given address, ask appellants/defendants to furnish their fresh and complete address, make further efforts to get their personal service effected in ordinary manner and then only after satisfying himself and verifying fact that all efforts made in this behalf for effecting their service in ordinary manner had failed than substituted service could be resorted to. Another factor which was not taken care of by Addl. District Judge was that some of respondents were shown as minors by defendants/respondents themselves in their Memo. of appeal and in case their g\iardian-a.d-litem failed to .turn up, it was duty of presiding officer to have adverted to provision of law as contained in Order 32 Rule 3 of C.P.C.. After learned Addl. District Judge had come to conclusion that plaintiffs/respondents were not turning up inspite of citation in newspaper, it was necessary for him to have asked appellants to move application for appointment of fresh guardian-ad-litem but neither appellants moved such application nor were they so directed nor order in this behalf was so passed by Addl. District Judge of his own. Appeal.accepted case remitted to Addl. District Judge for re-hearing of appeal on merits. PLJ 1998 Lah. 413 = PLD 1998 Lah. 118.
22. Upon hearing, respondent may object to decree as if he had preferred separate appeal. (1) Any respondent, though he may not have appealed from any part of the decree, may not only support the decree on any of the grounds decided against him in the Court below, but take any cross-objection to the decree which he could have taken by way of appeal, provided he has filed such objection in the Appellate Court within one month from the date of service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further time as the appellate Court may see fit to allow.
(2) Form of objection and provisions applicable thereto. Such cross-objection shall be in the form of a memorandum, and the provisions of rule 1, so far as they relate to the form and contents of the memorandum of appeal, shall apply thereto.
(3) Unless the respondent files with the objection at written acknowledgment from the party who may be affected by such objection or his pleader of having received a copy thereof, the Appellate Court shall cause a copy to be served, as soon as may be after the filing of the objection, on such party or his pleader at the expense of the respondent.
(4) Where, in any case in which any respondent has under this rule filed a memorandum of objection, the original appeal is withdrawn or is dismissed for default, the objection so filed may nevertheless be heard and determined after such notice to the other parties as the Court thinks fit.
(5) The provisions relating to pauper appeals shall, so far as they can be made applicable, apply to an objection under this rule.
Appeal against decree by defendant—Plaintiff not seeking setting aside or modification of decree—plaintiff was very mush within his right to support decree even on ground decided against him by Trial Court. PLD 2003 Lah. 413
Cross-objections against findings of Trial Court—Where neither any appeal nor cross-objections as provided under O.41, R.22, C.P.C. were filed against findings of Trial Court, such findings of Trial Court had become final as the same had not been challenged in any Court of law. PLD 2001 Lah.. 390
Respondents are competent to support impugned judgment even on grounds which were not decided in their favour, because there being no decree or order against them, it was not open to them to file any cross-objection or cross-appeal of their own. PLJ 1991 Pesh. 87.
23. Remand of case by Appellate Court. When the Court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and the decree is reversed in appeal, the Appellate Court may, if it thinks fit, by order remand the case, and may further direct what issue or issues shall be tried in the case so remanded, and shall send a copy of its judgment and order to the Court from whose decree the appeal is preferred, with directions to re-admit the suit under its original number in the register of civil suits, and proceed to determine the suit; and the evidence (if any) recorded during the original trial shall, subject to all just exceptions, be evidence during the trial after remand.
Remand of case to Trial Court for decision afresh—Plaintiff asserted to be the owner of the suit property and in his absence the property was transferred in the name of the vendor claiming to be the son of the plaintiff-defendant purchased the property from the vendor and the same was transferred in the name of the defendant—Plaintiff denied the vendor as his son and filed suit for cancellation of document and recovery of possession—Vendor was neither impleaded in the suit nor his statement was recorded as witness—Trial Court dismissed the suit but High Court in exercise of appellate jurisdiction allowed the appeal, impleaded the vendor as a party and remanded the case to the Trial Court and suo motu directed the Trial Court to record additional evidence—Contention of the defendant was that the High Court should have decided the appeal on the basis of evidence available on record—Validity—Judicial discretion exercised by the High Court as Appellate Court, in the present case, was neither unwarranted nor unjustified when valuable proprietary rights of the plaintiff (who was out of country for a long period) were extinguished without his consent and permission, it was a fit case for exercise of suo motu jurisdiction by the High Court—High Court by remanding the suit did not act arbitrarily or without jurisdiction—S.Crepelled the contention of the defendant and declined to set aside judgment and remand of case for decision afresh—Appeal was disposed of accordingly. PLD 2002 S.C 615
PLD 1992 SC 811; 1995 SCMR 1748 and 1992 SCMR 1778 ref.
If parties had led evidence and the case had been decided on merits, the Appellate Court should have re-examined the evidence and decided the same in accordance with law—If evidence was not sufficient or an issue was omitted, the Appellate Court could reframe the issue, decide it on existing evidence or by rece4ing further evidence and in any case, suit could not be remanded simply because one of the issues was not decided or some further evidence was required—Without reversing the judgment on merits, remand was not permissible in law—Frequent remands were deprecated by High Court as the same resulted in wastage of time and would create frustration in the litigants—Sufficient evidence being on record and issues having properly been framed in the case. Appellate Court, at the best, could have itself recorded further evidence and decided the appeal on merits instead of remanding the case and opening another round of litigation—Course adopted by the Appellate Court being contrary to law, order remanding the case to the Trial Court, was set aside by High Court, 2001 MLD 1285
Remand of case. Pre-requistes. Provisions of O.41. R. 23, C.P.C. deal with cases where decree of Trial Court was reversed on preliminary point and cases sent back for adjudication on merits. Appellate or revisional forums, on detecting material irregularity or omission of Trial Court on framing of issues’necessary for deciding real controversy or justifiable reasons patent on record could remand case with appropriate directions. Remand of case, not being routine matter, it should be adopted only when compelling circumstances exist. None amongst parties having pleaded remand. High Court acted with material irregularity by remanding case for additional evidence on its own motion. PLJ 1997 SC 2084 = 1997 SCMR 1849. Insufficiently of evidence on record for reaching at a conclusion. Good ground for remanding case to trial Court. PLJ 1978 SC 359. ADJ while disposing appeal remanded case with order to decide it as a fresh. Both parties interpreted order of ADJ according to their own accord. Whether remand order was defective and ambigious. Order of Appellate court is totally silent regarding specification as was required by Rule 29 of Order 41. Main Judgment was not a speaking Judgment as was required under rule 31 of order 41, Hence arising of ambiguity in such circumstances was natural. Intention of learned ADJ while remanding case, was to frame two additional issues and decide all these issues by putting parties at liberty to adduce evidence, if they choose so, before trial court. If purpose of learned additional District Judge had been to gel evidence recorded only on two additional issues then he would have specified same. as was required, under rule 28 to take such evidence and send same to appellate court. There seems no logic to believe that intention of trial court was to decide issues once again on basis of only previously recorded evidence. On remand of a matter by an appellate authority, trial court has to provide opportunities to parties, to adduce evidence on all issues including additional issues particularly when appellate court had ordered to decide matter as a fresh unless unambiguously specified as required by rule 29 of order 41 CPC. PLJ 1996 Kar. 668 = 1996 MLD 1533.
Conditions. Case could be remanded by Appellate Court in two eventualities as provided under O.41, Rr. 23 & 25. C.P.C. firstly, when suit was disposed of by Courts below on preliminary issue; and secondly, when Courts below had omitted to frame issues necessary for resolving controversy between parties. Both said eventualities or conditions were non-existent in case as suit was decided by Courts below not on preliminary issue, but on all issues framed and question of non-framing of issue was also not involved in case. Court, in extraordinary circumstances, had powers to remand case in exercise of its inherent powers under S. 151, C.P.C. in the interest of justice, but such powers should only be exercised sparingly and in unavoidable circumstances. PLJ 1999 SC (AJK) 358 = 1999 CLC 1368.
Ingredients. Most important ingredient of a valid judgment is reasons or grounds for decision because validity of judgment in higher forum is to be Been from reasoning and the same is to be challenged by aggrieved party is to attack reasoning of judgment in appeal and not narration of facts. Conclusion arrived at by court will not be binding without reasoning, therefore, courts insist that even in exparte judgments reasons should be clearly given. PLJ 1998 Lah. 401 = PLD 1998 Lah. 100. = NLR 1998 Civil 164.
24. Where evidence on record sufficient, Appellate Court may determine case finally. Where the evidence upon the record is sufficient to enable the Appellate Court to pronounce judgment, the Appellate Court may, after resettling the issues, if necessary, finally determine the suit notwithstanding that the judgment of the Court from whose decree the appeal is preferred has proceeded wholly upon some ground other than that on which the Appellate Court proceeds.
Remand of case by First Appellate Court. Where there was sufficient evidence on record, merely because certain issues had not been framed, instead of remanding such case. same could have been decided on basis of evidence already available on record. First Appellate Court did not advert to provision of O-41. R. 24 C-P.C. and remanded case without realizing . that material was available on record to help it in answering controversy between parties. Court suggested resort to provisions of O.41 Rr. 24 & 25 C.P.C. to check frequent tendency of remand. PLJ 1999 Lah. 1191.
Provision of O.41, R. 24, C.P.C. empowered Appellate Court to pronounce judgment on issues not determined by Trial Court if sufficient evidence was on record instead of remanding the same for re-trial. Order 41, R. 24 C.P.C., however, was restricted to appeals against decrees and was not applicable to appeals against orders. There being no finding on any of issues apart from question of jurisdiction by Trial Court, Appellate Court was not empowered under any provision of C.P.C. to adjudicate upon those issues. Issue of jurisdiction, however, having been decided by Trial Court finding of ‘Appellate Court on that issue that Civil Court was possessed of jurisdiction, was correct. Judgment and decree of Appellate Court relating to decision on merits was set aside and suit was remanded to Trial Court for decision on all issues. PLJ 1997 Peashawar 198 = 1997 CLC 477.
25. Where Appellate Court may frame issues and refer them for trial to Court whose decree appealed from. Where the Court from whose decree the appeal is preferred has omitted to frame or try any issue, or to determine any question of fact, which appears to the Appellate Court essential to the right decision of the suit upon the merits, the Appellate Court may, if necessary, frame issue and refer the same for the trial to the Court from whose decree the appeal is preferred, and in such case shall direct such Court to take the additional evidence required; and such Court shall proceed to try such issues, and shall return the evidence to the Appellate Court together with its findings thereon and reasons therefor.
Powers of Revisional and Appellate Courts to remand the case in terms of O. XLI, R. 25, C.P.C – Scope and extent—If the parties had led evidence with regard to the particular point and the court of first instance by giving specific finding on the said point as a pivotal question of fact decided the same in the light of evidence available on record, the remand of the case in appeal or revision for mere reason that a specific issue was not framed on such point was not proper exercise of jurisdiction—Where the case was not of the nature in which without framing issue the controversial question regarding nature of transaction whether sale or mortgage could not be decided by the Appellate Court on the basis of evidence available on record, remand of the case by the Appellate court was not proper—High Court, in revision, instead of saving the parties from unnecessary agony of litigation, committed the same mistake and remanded the case to the Trial Court with additional direction of framing of fresh issue and recording of further evidence if need be—proper course for the High court was to send to case back to the Appellate Court for decision of appeal on merits—Supreme Court, in circumstances, while setting aside the judgment of High Court directed that the Appellate court shall decide the appeal afresh on all issues on the basis of available evidence. PLD 2003 SC 271
26. Findings and evidence to be put on record: Objection to finding. (1) Such evidence and findings shall from part of the record in the suit; and either party may, within a time to be fixed by the Appellate Court, present a memorandum of objections to any finding.
(2) Determination of appeal. After the expiration of the period so fixed for presenting such memorandum the Appellate Court proceed to determine the appeal.
27. Production of additional evidence in Appellate Court. (1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court, but if:–
(a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or
(b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause;
the appellate Court may allow such evidence or document to be produced, or witness to be examined.
(2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission.
Production of additional evidence:- Petitioner moved an application for bringing on record the gift –deed and a copy of misl-e-haqiat pertain to the years 1975-76 as additional evidence, petitioner had simply pleaded in this application that he came to know about the gift-deed in question after the judgment of the trial court. explanation given and pleaded by the petitioner was not plausible and was unconvincing because the gift-deed in question was executed 30-11-1990, whereas the suit was filed on 3-7-2005 public document could not we said to have been executed and registered secretly, petitioner also did not furnish any explanation with regard to the non-production of misl-e-haqiat at the time of evidence under O. XLI R .27, CPC a document could be produced or any witness could be examined as additional evidence to enable the court to pronounce the judgment, but at the same time said provision of law had imposed the embargo that said rule would apply only where additional evidence was discretionary in nature and same could be exercised by the appellate court itself and rot, by a party to appeal impression could easily be gathered from the impugned judgment that appellate court below did not feel any necessity that in absence of documents sought to be produced as additional evidence, it could not pronounce the judgment no sufficient or good cause having been shown by the petitioner for producing the additional evidence, application for production of additional evidence, was rightly rejected by the appellate court. 2010. C. L. C. 112
Additional evidence, production of—Principles—Appellate Court can allow additional evidence under O.41, R.27, C.P.C, where the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted and, secondly where the Appellate Court requires any document to be produced or any witness to be examined to enable the Court to pronounce judgment or for any other substantial cause—Provisions of O.XI, R.27, C.P.C. are exception to the principle that Appellate Court cannot record fresh evidence and additional evidence can be recorded under O.41, R.27, C.P.C. provided the situation attracts the applicability—Power to allow additional evidence is discretionary in nature but such discretion is circumscribed by the limitations specified in the rule itself. 2002 CLC 879
Expression shows that where the Appellate Court feels any difficulty in pronouncing the judgment in absence of the solicited additional evidence, such evidence can be permitted—Word ‘it’ is further significant which makes reference to the Appellate Court in whose wisdom the judgment can only be pronounced after recording the additional evidence. 2002 CLC 879
Setting aside of judgment and decree passed by Trial Court—Appellate Court found it necessary for the just decision of the case that additional evidence was to be recorded—Judgment and decree passed by the Trial Court was set aside and the case was remanded to the Trial Court for recording of the additional evidence—Validity—Evidence, was either to be recorded by the Appellate Court itself or it might have sent the case to the Trial Court only for the purpose of recording the additional evidence and after recording the evidence the Trial Court had to remit the memorandum to the Appellate Court and the Court thereafter could pronounce its own judgment—Lower Appellate Court by setting aside the judgment and decree of the Trial Court had exercised the jurisdiction not vested in it by law—Judgment and decree passed by the Trial Court could not be set aside for the recording of additional evidence—High Court set aside the judgment and decree passed by the Appellate Court and remanded the case to the Appellate Court for recording the permitted additional evidence itself and then to pronounce the judgment in circumstances. 2002 CLC 879
PLD 1990 Lah.. 37 and AIR 1940 Mad. 511 ref.
Application for production of additional evidence at appellate stage—Documents which the applicant wanted to produce In additional evidence had been mentioned in the plaint and had nexus with the ultimate purpose for the just decision—Evidence which was sought to be adduced had direct bearing on the point in issue and the Appellate Court could require the documents to enable it to pronounce judgment and thus, there was a substantial cause—Dismissal of application for production of additional evidence by the Appellate Court in circumstances was a material illegality as the Court had not exercised its vested jurisdiction—High Court set aside the said order of Appellate Court and allowed the production of additional evidence mentioned in the application with direction that the respondent shall have the right to produce the evidence b rebuttal. 2001 CLC 1721
PLD 1992 SC 811; 1998 MLD 1622; 1996 CLC 650 and 1992 SCMR 1778 ref.
It is settled principle of law that additional evidence under Order 41. R. 27, C.P.C. can be adduced only for sufficient reasons or if it is necessary for enabling Court to pronounce judgment. Findings of District Judge do not suffer from any infirmity and appeal has no merit. PLJ 1992 SC (AJK) 201.
Where a party challenges vires of a mutation, it becomes essential for other party to prove execution of said mutation. A Court cannot pronounce a just judgment without looking at documents and without recording statements of those who wish to prove or disprove documents. PLJ 1996 Lah. 196 = 1996 CLC 650. After disposal of ejectment application, appellant’s Managing Director made enquiries in respect of whereabouts of respondent’s husband at Dubai. There is no reason shown as to why such attempt was”not made earlier. Said trip and discovery of new evidence after disposal of ejectment case, would not fall within purview of substantial cause or would not be in interest of justice no one could be permitted to fill up lacuna left by one party to disadvantage of other party. Discovery of fresh evidence at later stage is no ground for permitting additional evidence at appellate stage as such evidence was not refused by Rent Controller. High Court Would not require said photostat copies of documents to be brought as additional evidence for pronouncement ofjudgment as it would not come within purview of Rule 27 of Order 41 C.P.C. PLJ 1996 Kar. 301 = 1996 CLC 936.
High Court in second appeal can take all necessary step suo motu, can issue all necessary directions, can direct trial Court, on its own, to bring all necessary and relevant documents on record of suit as additional evidence, even without asking of either party to suit and can remand case back to Trial Court for fresh decision on merits, in the light of additional evidence to be brought on record. High Court, however, at the time of exercise of such jurisdiction, must record reasons for the same. District Judges are also vested with such authority while hearing first appeals against judgments and decrees passed by Courts of original Civil jursidiction. Appellate Court can on its own take all necessary steps for doing complete justice and such authority can be exercised by it under 0- 41, R. 33 C.P.C. or if need be in exercise of its inherent jurisdiction under Section 151 C.P.C. PLJ 2000 Lah. 1372 = 2000 CLC 744.
Two documents which were sought to be produced in additional evidence have no bearing on pleas of parties regarding identification’of properties and area underneath about which evidence bad already been produced by parties and same was thoroughly examined by trial Court and first appellate Court, therefore, said additional evidence was not at. all relevant for purpose of disposal of suit on merits. Application dismissed. PLJ 2001 SC 618.
First Appellate Court appears justified in rejecting an application for additional evidence, which was made after s9 years, during which the parties remained before trial Court. This application was also rightly found to be an attempt to prolong the proceedings inasmuch as earlier the comparison of thumb impression of Mst. Bevi also took quite some time and finally no report came forth. PLJ 2000 Lah. 1010.
Certified copies of .documents from Government Officer are public documents. Appellate Court was not justified in refusing to allow production of additional evidence of public documents. Same being relevant document is allowed. PLJ 2000 Lah. 801 = 2000 MLD 404. Petitioner, did not produce additional evidence before trial Court. Appellate Court dismissed application of production of additional evidence. There are several precedents of superior Courts that under Order 41 Rule 27 no additional evidence can be produce before appellate Court unless the trial Court refused to admit it or appellate Court itself requires so. It is held that only newly discovered evidence can be produce as an additional evidence before appellate Court while the evidence which petitioner sought to produce was already in his knowledge when case was in trial Court. PLJ 2000 Lah.: 1391.
Both Courts below have totally ignored that petitioner was seeking production of additional evidence and not evidence in rebuttal. Additional evidence can be allowed at any stage. Court had ample powers to do -needful so as to advance justice rather than injustice. Concept of bar against filling gaps was no more available-in Pakistani jurisprudence and law including precedent law on Islamic principles; which were being made applicable progressively to proceedings before Courts and other forum which are required to record/admit evidence. Petition allowed. PLJ 1999 Lah. 1071 = NLR 1999 Civil 407. Requirement—High Court was fully competent under O.41, R.27, C.P.C. to direct additional evidence for a just and proper determination of the issue even without application by the parties—Power to allow additional evidence was always discretionary in nature and the exercise of discretion would depend on the facts of each case and as a general rule parties to a lis were not entitled to produce additional evidence but if the Appellate Court required any documents to be produced or any witness to be examined to pronounce judgment or for any other substantial cause, it could always do so after recording reason. PLD 2002 S.C615
To fill up any lacuna :– Additional evidence should not be allowed to be produced to enable a party to fill up any lacuna. This principle can more aptly be applied to case of a person who has remained indolent, for years together in matter of producing oral or documentary evidence before trial court. PLJ 1996 SC i 718 = 1996 SCMR 1430.
Whether applies to trial court or not. Though rule is specifically for appellate court, but it also recognises authority and power vested in trial court as envisaged in clause (a) of above rule- Document sought to be produced is a public document and came in possession of respondents after recordings evidence. Therefore question of document being fabricated or sought to be produced to fill in lacuna in case, does not arise. Document appears to have a material bearing of suit and was. in fact, not in possession of respondent at time they had an opportunity to produce their evidence. It can safely be resolved that trial court exercised its proper jurisdiction in allowing production of additional evidence. PLJ 1997 AJK 84 = 1997 MLD 2352 = NLR 1997 Civil 379
Essentials. There is no cavil with proposition that under Order 41, Rule 27, C.P.C., parties are entitled to produce additional evidence; whether oral or documentary, if (i) court from whose decree appeal is preferred has refused to admit evidence which ought to have been admitted, or (ii) Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause. PLJ 1998 SC 1315 = 1998 SCMR 789 = NLR 1998 C4l 406.
28. Mode of taking additional evidence. Wherever additional evidence is allowed to be produced, the Appellate Court may either take such evidence or direct the Court from whose decree the appeal is preferred, or any other subordinate Court, to take such evidence and to send it when taken to the Appellate Court.
29. Points to be defined and recorded. Where additional evidence is directed or allowed to be taken, the Appellate Court shall specify the points to which evidence it to be confined, and record on its proceedings the points so specified.
JUDGMENT IN APPEAL
30. Judgment when and where pronounced. The Appellate Court, after hearing the parties or their pleaders and referring to any part of the proceedings, whether on appeal or in Court from whose decree the appeal is preferred to which reference may be considered necessary, shall pronounce judgment in open Court, either at once or on some future day of which notice shall be given to the parties or their pleaders.
Judgment in appeal- Default by appellants- Neither the counsel for the appellants was present or heard nor the counsel for respondents was in a position to argue the case- Decision of appeal by District judge on merits in view of direction by the Member, Inspection Team of the High Court to the effect that the appeal be decided by as of specified date-Validity- Held, remedy of appeal, in particular, the first appeal, is a right which a suitor is entitled to avail under the law i.e. Civil procedure Code itself- When an appeal in preferred by a party and indefeasible right of hearing bests in him, which cannot be stultified or transgressed except in accordance with law—Direction of the nature, issued by the Member, Inspection Team of the High court, which was at the most administrative in nature could not be made a basis for denying the appellants the right of hearing as envisaged by O. XLI, R. 30, C.P.C- Court which is charged with onerous duty and responsibility fo administering justice is expected to maintain a balance so that neither the matter is delayed unnecessarily nor its disposal is effected in such a hasty miner as may be violative f the law and fairness- Judicial power or jurisdiction to administer justice in accordance with law cannot be abdicated merely to honour any executive or administrative instruction or directive- Court, in order to keep the streams of justice clean and unpolluted, is expected to shun every extraneous instruction/direction and act purely in accordance with law- Direction of the Member, Inspection Team of the High Court can only be regarded as directory, enabling the Court to expedite the hearing/decision, but in no case can be given supremacy over the explicit legal provisions- If the counsel for appellants was not in a position to advance arguments on the date fixed due to his engagements before High Court the case Could be adjourned to the next day even on payment of costs in order to compensate the other side for any inconvenience- Appeal, thus, could not be dismissed by the District judge on merits, which exercise undertaken by him was futile and violative of law. PLD 2003 Lah. 27
Dismissal of appeal on appellant’s default- Procedure- If the Court does not choose to dismiss the appeal, the same has to be adjourned, but R. 17, O.XLI, C.P.C nowhere empowers the court to render a decision on merits in the absence of the appellant– Decree on merits in envisaged by O.XLI, R. 30 and hearing of both the sides is the condition precedent for such a decree. PLD 2003 Lah. 27
31. Contents, date and signature of judgment. The judgment of the Appellate Court shall be in writing and shall state: –
(a) the points for determination;
(b) and decision thereon;
(c) the reasons for the decision; and
(d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled;
and shall at the time that it is pronounced be signed and dated by the judge or the judges concurring therein.
Essentials—Such judgment should state points for determination, its decision thereon and reasons for its decision. 2003 CLC 504
Validity—Appellate Court disposed of appeal without passing a speaking order and discussing evidence produced by respondent—Appellate Court did not give any reason for its decision as required by provisions of O.XLI, R.31, C.P.C.—High Court accepted revision petition, set aside impugned judgment and remanded case to Appellate Court for its decision afresh within specified time. Askar Ali and others v. The State PLD 1959 SC (Pak.) 251 and Muhammad Tufail v. Mst. Sardar Bibi and 2 others 1998 CLC 1969 rel. 2003 CLC 504
32. What judgment may direct. The judgment may be for confirming, varying or reversing the decree from which the appeal is preferred, or, if the parties to the appeal shall take, or as to the order to be made in appeal, the Appellate Court may pass a decree or make an order accordingly.
33. Power of Court of Appeal. The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order, as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection: –
Provided that the Appellate Court shall not make any order under section 35A, in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to make such order.
A claims a sum of money as due to him from X or Y, and in a suit against both obtains a decree against X. X appeals and A and Y are respondents. The Appellate Court decides in favour of X. It has power to pass a decree against Y.
1. Findings of Trial Courts on questions of fact—First Appellate court can reverse such findings and can come to its own conclusion on the basis of evidence on record. PLD 2003 Lah. 389
2. Appropriate orders for doing complete justice-Although civil petition for leave to appeal dismissed as barred by limitation yet there was illegal deprivation of right to obtain possession of a khasra number as well by way of preemption-Decree of High Court, set aside-Art. 187, Constitution of Pakistan (1973). P L J 1981 Supreme Court 403
3. Appeal against consolidated payment–Appellant Court was vested with powers under O. XLI, R. 33 C.P.C. to pass any decree which ought to have been passed–Such power is not subject to filing appeal by a party provided that party was before Court–Where only reason for dismissing suit for partition stated in same judgment was that suit for specific performance was being decreed, First Appellate Court ought to have passed preliminary decree for partition–High Court was empowered in terms of S. 115 C.P.C. to correct such error as a result where of, preliminary decree of partition was passed in terms of respective shares of parties. PLJ 2003 Lahore 11
34. Dissent to be recorded. Where the appeal is heard by more Judges than one, any Judge dissenting from the judgment of the Court shall state in writing the decision or order which he thinks should be passed on the appeal, and he may state his reasons for the same.
DECREE IN APPEAL
35. Date and contents of decree. (1) The decree of the Appellate Court shall bear date the day on which the judgment was pronounced.
(2) The decree shall contain the number of the appeal, the names and descriptions of the appellant and respondent, and a clear specification of the relief granted or other adjudication made.
(3) The decree shall also state the amount of costs incurred in the appeal, and by whom or out of what property and in what proportions such costs and the costs in the suit are to be paid.
(4) Judge dissenting from judgment need not sign decree. The decree shall be signed and dated by the Judge or Judges who passed it:
Provided that where there are more Judges than one and there is a difference of opinion among them, it shall not be necessary for any Judge dissenting from the judgment of the Court to sign the decree.
36. Copies of judgment and decree to be furnished to parties. Certified copies of the judgment and decree in appeal shall be furnished to the parties on application to the Appellate Court and at their expense.
37. Certified copy of decree to be sent to Court whose decree appealed from. A copy of the judgment and of the decree, certified by the Appellate Court or such officer as it appoints in this behalf, shall be sent to the Court which passed the decree appealed from and shall be filed with the original proceedings in the suit, and an entry of the judgment of the Appellate Court shall be made in the register of civil suits.
HIGH COURTS AMENDMENTS
R. 1. Add the following proviso to sub-rule (1) of rule 1: –
Provided that when two or more cases are tried together and decided by the same judgment, and two or more appeals are filed against the decrees, whether by the same or different appellants, the officer appointed in this behalf may, if satisfied that the questions for decision are analogous in each appeal, dispense with the production of more than one copy of the judgment. (2-12-1942).
Add the following as sub-rule (3) of rule 14: –
(3) It shall be in the discretion of the Appellate Court to make any order, at any stage of the appeal whether on the application of any party or on its own motion, dispensing with service of such notice on any respondent who did not appear, either at the hearing in the Court whose decree is complained of or at any proceeding subsequent to the decree of that Court, or on the legal representatives of any such respondent:
Provided that: –
(a) the Court may require notice of appeal to be published in any newspaper or in such other manner as it may direct;
(b) no such order shall preclude any such respondent or legal representative from appearing to contest the appeal.
R. 23A. Add the following as Rule 23A: –
23A. Where the Court from whose decree an appeal is preferred has disposed of the case otherwise than on a preliminary point, and the decree is reversed in appeal, and a re-trial is considered necessary the Appellate Court shall have the same powers as it has under Rule 23.
R. 35. Add the following to sub-rule (4) to R. 35:-
Provided also in the case of the High Court, that the Registrar or such other officer as may be incharge of the Judicial Department from time to time, shall sign the decree on behalf of the judge or Judges who passed it; but that such Registrar, or such officer shall not sign such decree on behalf of a dissenting Judge.
R. 38. Add the following as Rule 38:-
38. (1) An address for service filed under Order 7, rule 19, or Order 8, rule 11, or subsequently altered under Order 7, rule 22 or Order 8, rule 12 shall hold good during all appellate proceedings arising out of the original suit or petition.
(2) Every memorandum of appeal shall state the addresses for service given by the opposite-parties in the Court below, and notices and processes shall issue from the appellate Court to such addresses.
(3) Rules 21 and 22 of Order 7 shall apply so far as may be to appellate proceedings.
R. 1. Add the following as proviso to sub-rule (1) of rule 1: –
Provided that when two or more cases are tried together and decided by the same judgment and two or more appeals are filed against decrees by the same appellants it shall not be necessary to produce more than one copy of the judgment.
R. 14. Add the following proviso to sub-rule (1) of rule 14: –
Provided that with permission of the Court no notice need be served upon a respondent who was & pro forma defendant in a suit which was decided ex pane against him.
R. 38. Add the following as Rule 38: –
38. (1) An address for service filed under Order 7, rule 19, or Order 1, rule 11, or subsequently altered under Order 7, rule 22, or Order 8, rule 12, shall hold good during all appellate proceedings arising out of the original suit or petition.
(2) The notice of appeal, and other processes connected with proceedings therein, shall issue to the addresses mentioned in clause (1) above, and service, effected at such addresses shall be as effective as if it had been made personally on the appellant or respondent, as the case may be.
(3) Rules 21, 22, 23, 24 and 25 of Order 7, shall apply, so far as may be, to appellate proceedings. (24-11 -1972 and 29-1 -1973).
R. 14. Add the following as sub-rule (3) of rule 14: –
(3) Appellate Court may, however, in its description, dispense with the service of notice of the appeal of interlocutory application therein on a respondent or opponent who has made no appearance at the trial Court.
-R. 14A. Add the following as Rule 14A: –
14A. Subject to the leave of the Appellate Court nothing in these rules requiring any notice to be served on or given to an opposite-party or respondent shall be deemed to require any notice to be served on or given to the legal representative of any deceased opposite-party or deceased-respondent, where such opposite-party or respondent did not appear, either at the hearing in the Court whose decree is complained of or at any proceedings subsequent to the decree of that Court.
R.38. Add the following as Rule 38: –
38. (1) An address for service filed under Order 7, rule 19, Order 8 rule 11, or subsequently altered under Order 7, rule 24, or Order 8, rule 12, shall hold good during all appellate proceedings arising out of the original suit of petition, subject to any alteration under sub-rule (3).
(2) Every memorandum of appeal shall state the address for services given by the opposite parties in the Court below and notices and processes shall issue from the Appellate Court to such addresses.
(3) Rules 21 to 25 of Order 7, shall apply, so far as may be to appellate proceedings
APPEALS FROM APPELLATE DECREES
1. Procedure. The rules of Order XLI shall apply, so far as may be, to appeals from decrees.
HIGH COURT AMENDMENT LAHORE
Add the following as Rule 2:- 2. In addition to the copies specified in Order 41, rule 1, the memorandum of appeal shall be accompanied by a copy if the judgment of the Court of first instance unless the appellate Court dispenses therewith.
APPEALS FROM ORDERS
1. Appeal from orders. An appeal shall lie from the following orders under the provisions of section 104, namely: –
(a) an order under rule 10 of Order VII returning a plaint to be presented to the proper Court;
(b) an order under rule 10 of Order VIII pronouncing judgment against a party;
(c) an order under rule 9 of Order IX rejecting an application (in a case open to appeal) for an order to set aside the dismissal of a suit;
(d) an order under rule 13 of Order IX rejecting an application (in a case open to appeal) for an order to set aside a decree passed ex parte;
(e) an order under rule 4 of Order X pronouncing judgment against a party;
(f) an order under rule 21 of Order XI;
(g) an order under rule 10 of Order XVI for the attachment of property;
(h) an order under rule 20 of Order XVI pronouncing judgment against a party;
(i) an order under rule 34 of Order XXI on an objection to the draft of a document or of an endorsement;
(ii) an order under rule 62 or rule 103 of Order XXI relating to the right, title or interest of the claimant or objector in attached property;]
(j) an order under rule 72 or rule 92 of Order XXI setting aside or refusing to set aside a sale;
(k) an order under rule 9 of Order XXII refusing to set aside the abatement or dismissal of a suit;
(l) an order under rule 10 of Order XXII giving or refusing to give leave;
(m) an order under rule 3 of Order XXIII recording or refusing to record an agreement, compromise or satisfaction;
(n) an order under rule 2 of Order XXV rejecting an application (in a case open to appeal) for an order to set aside the dismissal of a suit;
(o) an order under rule 2, rule 4 or rule 7 of Order XXXIV refusing to extend the time for the payment of mortgager-money;
(p) an order in interpleader suits under rule 3, rule 4 or rule 6 of Order XXXV;
(q) an order under rule 2, rule 3 or rule 6 of Order XXXVIII;
(r) an order under rule 1, rule 2, rule 4 or rule 10 of Order XXXIX;
(s) an order under rule 1 or rule 4 of Order XL;
(t) an order of refusal under rule 19 of Order XLI to re-admit, or under rule 21 of Order XLI to re-hear, an appeal;
(u) an order under rule 23 of Order XLI remanding a case, where an appeal would lie from the decree of the Appellate Court;
(v) an order made by any Court other than a High Court refusing the grant of a certificate under rule 6 of Order XLV;
(w) an order under rule 4 of Order XLVII granting an application for review.
1. Appeal against order of remand:- An order of remand under order 23 Rule 23A is appealable – However, the scope of such appeal is limited only on the order of remand, not against questions of facts.
2. Appeal against order under O. 17, R. 2, C.P.C. does not lie:- appropriate remedy is to seek redress under O.9, R.9 or 13, C.P.C. as the case may be. 2002 CLC 71
3. Conversion of appeal into revision or constitutional petition:- High Court has ample power to convert appeal into revision or constitutional petition in interest of justice and fair play at any stage of proceedings–It is admitted fact that respondent filed suit for permanent injunction against appellants and affixed Court fee for purpose of Court fee and jurisdiction—It is settled law that forum of appeal is to be determined not on basis of market value of land but it is to be determined on basis of value of original suit–Held: Appeal not maintainable order of Addl. District Judge set aside and appeal returned to petitioner for presentation to proper Court–Appeal accepted. PLJ 2002 Lah.. 163
4. Ground not set forth in memo cannot be urged:- Memorandum is a concise statement and a notice of specific grounds proposed to be urged—Party cannot be allowed to urge a point which is only a bald ground—Drawing up of specific grounds and eliminating superfluous redundancies results in avoidance of inordinate delay too. P L J 1980 Lahore 333
5. Jurisdiction of Appellate Court:- Trial Court did not apply its mind and decided the application for grant of interim injunction in mechanical manner without recording evidence, and without framing the issue—High Court, having ample powers to look into the subsequent events, set aside order passed by Trial Court which was not in accordance with law. 2001 CLC 1695 PLD 1970 SC 173 and 1990 CLC 1069 ref.
6. Plea that Executing Court cannot go behind the decree was repelled:- Document purportedly creating mortgage in favour of bank was not genuine as per statement of official of C.D.A. who had appeared as witness of objector–Deposite of documents thus, did not result in the creation of mortgage in favour of respondent Bank–Objection petition filed by appellant before Executing Court ought to have been allowed–Plea that Executing Court cannot go behind the decree was repelled in as much as, rights of appellant being bona-fide purchaser of property in question, for valuable consideration without notice of any encumbrance would not be affected by such mortgage which in fact was not created–Objection petition of appellant was allowed.PLJ 2002 Lahore 1289
7. Return of memorandum of appeal—Appeal against order of return of memorandum of appeal, held, was not competent–Appeal could, however, be treated as revision on prayer of party or counsel. 1986 M L D 606 A I R 1930 Lah.. 832 fol. I L R 25 All. 174 and 59 P R 1899 ref.
8. Second appeal – Second appeal is maintainable only on substantial question of law – High Court has no jurisdiction to go into the excruciating details of facts in second appeal.
9. Procedure. The rule of Order XLI shall apply, so far as may be, to appeals from orders.
3. Notice before presentation of appeal. (1) Where an appeal against an order is preferred during the pendency of a suit, the appellant shall, before presenting the appeal, give notice of such appeal to the respondent or his advocate by delivering a copy of the memorandum and grounds of appeal alongwith a copy of the order appealed against [either personally or through registered post acknowledgment due and the postal or other receipt shall be filed with the memorandum of appeal for the record of the appellate Court.
(2) On receipt of notice referred to in sub-rule (1), the respondent may, with the permission of the Court, appear before it and contest the appeal and may be awarded costs on dismissal of the appeal in limine.
Non-compliance Of Provision of Notice before presentation of appeal :– Respondents being duly represented before High Court before admission of appeal, object of serving notice on respondents under O.43. R. 3, C.P.C. before filing of appeal was fully met and. therefore, appellant could not have been non-suited in appeal on such ground. PLJ 1997 SC 1155 — 1997 SCMR 414. Failure to satisfy requirement of prescribed notice in Rule. 3 of Order 43 CPC, in appropriate cases, may be visited by dismissal of appeal whereas in like manner where justice of case so requires, party in default may be relieved of pains of dismissal by according adequate dispensation in way of costs or otherwise because costs, have been held to be panacea for all Civil wrongs. In urgent cases appellate forum need not wait for service and may act on its mere issuance.’ Serious cases where appellate court comes to conclusion that omission or avoidance is deliberate, calculated to extract undue advantage by circumventing requirement of law, may -entail penalties of dismissal. Conditionalities of Rule. 3 of Order 43 CPC appear to have been substantially complied with in this case and no mala fides have been shown C.M.A. dismissed. PLJ 1996 Kar. 8 = 1996 CLC 570. giving previous notice of filing of appeal is meant to be restricted to stage of-preliminary hearing of appeal and is not to have any further effect, once appeal has crossed that stage and has been admitted for regular hearing thereafter appeal is to be heard and decided on merits. It follows thai after its admission appeal cannot be dismissed for non-compliance with provision of Order 43 Rule 3 of Code of Civil Procedure. PLJ 1997 Lah. 1752 = 1997 MLD 1910 = 1997 Law Notes 126. Failure on part of appellant having caused prejudice to other party, no valid exception to be taken to order of Additional District Judge dismissing appeal (presented before service of notice to respondents). PLJ 1984 Lah. 398. Issuance of notice to respondent before presentation of appeal against order passed during pendency of suit to be obligatory and no appeal to be entertained without issuance of notice. PLJ 1984 SC 1. Proper place of procedure being to help and not to thwart obtaining of justice, right of party to have his appeal heard not to be allowed to be defeated for failure to comply with form in case of substance having been complied with. PLJ 1984 SC1. After admission, appeal cannot be dismissed for non-compliance with provisions of Order 43. R- 3 CPC. PLJ 1990 Lah. 266
After admission, appeal cannot be dismissed for non-compliance with provisions of Order 43. R- 3 CPC. PLJ 1990 Lah. 266 (DB). Rolling back of arbitration proceedings by compromise– Scheme of Arbitration Act, 1940 .indicated that once award was made, same could be set aside only by determining objection petition in terms of Ss. 30 & 33 of the Act or by superseding reference or by revoking authority of arbitrator or when proceedings become void under S. 19 of Act–Any other mode of decision could not be adopted unless authority of arbitrator had been revoked by Court–Case was remanded to Trial Court for decision in accordance with law. PLJ 1997 Lahore 1206
Dismissal of appeal by High Court for non-compliance of provision of O.XLIII, R. 3, C.P.C.–Respondents being duly represented before High Court before admission of appeal, object of serving notice on respondents under O.XLIII, R. 3, C.P.C. before filing of appeal was fully met and, therefore, appellant could not have been non-suited in appeal on such ground–Petition for leave to appeal was converted into appeal and remanded to High Court for decision of appeal on merits in accordance with law. PLJ 1997 SC 1155
4. Application of Rule 3. The provisions, of rule 3 shall mutatis mutandis, apply to all applications filed before an Appellate Court during the pendency of suit.
HIGH COURTS AMENDMENTS :
In clause (u) of rule 1 after the word and figure rule 22, add or rule 23A.
Substitute the words any order for the words an order under rule 23 of order XLI appearing in clause (u) of Rule 1.
1. Who may appeal as pauper; procedure on application for admission of appeal. Any person entitled to prefer an appeal, who is enable to pay the fee required for the memorandum of appeal, may present an application accompanied by a memorandum of appeal, and may be allowed to appeal as a pauper, subject, in all matters, including the presentation of such application, to the provisions relating to suit by paupers, insofar as those provisions are applicable: Provided that the Court shall reject the application unless, upon a perusal thereof and of the judgment and decree appealed from, it sees reason to think that the decree is contrary to law or to some usage having the force of law, or is otherwise erroneous or unjust.
2. Inquiry into pauperism. The inquiry into the pauperism of the applicant may be made either by the Appellate Court or under the orders of the-Appellate Court by the Court from whose decision the appeal is preferred:
Provided that, if the applicant was allowed to sue or appeal as a pauper in the Court from whose decree the appeal is preferred no further inquiry in respect of the pauperism shall be necessary, unless the Appellate Court sees cause to direct such inquiry.
APPEALS TO THE SUPREME COURT
[See Section 109 to 112]
1. Decree defined. In this Order, unless there is something repugnant in the subject or context, the expression decree shall include a judgment or final order.
2. Application to Court whose decree complained of. Whoever desires to appeal to [the Supreme Court] shall apply by petition to the Court whose decree is complained of.
3. Certificate as to value of fitness. [(1) A petition made under rule 2 shall briefly state the grounds of appeal and pray for a certificate.
(2) Upon receipt of such petition, the Court shall direct notice to be served on the apposite-party to show cause why the said certificate should not be granted: Provided that no notice shall be directed to be served on or given to the opposite-party or to the legal representative of a deceased opposite-party in a case where such opposite-party did not appear either at the hearing, in the Court whose decree is complained of or at any proceedings subsequent to the decree of that Court.
(3) the Court may, if the opposite-party in response to the notice issued under sub-rule (2) appears after hearing both the parties, or if the opposite-party does not appear in response to such notice, then after hearing the party making the petition, grant or refuse the certificate.
(4) If on the date fixed for the hearing, the party making the petition does not appear and the opposite-party appears in response to such notice or if both the parties do not appear on such date, the petition shall be dismissed.
4. Consolidation of suits. For the purposes of pecuniary valuation, suits involving substantially the same questions for determination and decided by the same judgment may be consolidated; but suits decided by separate judgments shall not be consolidated, notwithstanding that they involve substantially the same question for determination.
5. Remission of dispute to Court of first instance. In the event of any dispute arising between the parties as to the amount or value of the subject-matter of the suit in the Court of first instance, or as to the amount or value of the subject-matter in dispute on appeal to [the Supreme Court] the Court to which a petition for a certificate is made under rule 2 may, if it thinks fit, refer such dispute for report to the Court of first instance, which last-mentioned Court shall proceed to determine such amount of value and shall return its report together with the evidence to the Court by which the reference was made.
7. Security and deposit required on grant of certificate. (1) Where the certificate is granted, the applicant shall, within ninety days or such further period, not exceeding sixty days, as the Court may upon cause shown allow from the date of the decree complained of, or within six weeks from the date of the grant of the certificate, whichever is the later date: –
(a) furnish security in cash or in Government securities for the costs of the respondent, and
(b) deposit the amount required to defray the expense of translating, transcribing, indexing [printing] and transmitting to [the Supreme Court] a correct copy of the whole record of the suit, except:-
(1) formal documents directed to be excluded by [Rule of the Supreme Court] in force for the time being;
(2) papers which the parties agree to exclude;
(3) accounts, or portions of accounts, which the officer empowered by the Court for that purpose considers unnecessary, and which the parties have not specifically asked to be included; and
(4) such other documents as the High Court may direct to be excluded: Provided that the Court at the time of granting the certificate may after hearing any opposite-party who appears, order on the ground of special hardship that some other form of security may be furnished: Provided further, that no adjournment shall be granted to an opposite party to contest the nature of such security.
8. Admission of appeal and procedure thereon. Where such security has been furnished and deposit made to the satisfaction of the Court, the Court shall:-
(a) declare the appeal admitted,
(b) give notice thereof to the respondent,
(c) transmit to Supreme Court under the seal of the Court a correct copy of the said record,except as aforesaid, and
(d) give to either party one more authenticated copies of any of the papers in the suit on his applying therefor and paying the reasonable expenses incurred in preparing them.
9. Revocation or acceptance of security. At any time before the admission of the appeal the Court may, upon cause shown, revoke the acceptance of any such security, and make further directions thereon.
10. Power to order further security or payment. Where at any time after the admission of an appeal but before the transmission of the copy of the record, except as aforesaid, to [the Supreme Court] such security appears inadequate, or further payment is required for the purpose of translating, transcribing, printing, indexing or transmitting the copy of the record, except as aforesaid, the Court may order the appellant to furnish, within a time to be fixed by the Court, other and sufficient security, or to make, within like time, the required payment.
11. Effect of failure to comply with order. Where the appellant fails to comply with such order, the proceedings shall be stayed, and the appeal shall not proceed without an order in this behalf of [the Supreme Court], and in the meantime execution of the decree appealed from shall not be stayed.
12. Refund of balance deposit. When the copy of the record except as aforesaid, has been transmitted to [the Supreme Court], the appellant may obtain a refused of the balance (if any) of the amount which he has deposited under rule 7.
13. Powers of Courts pending appeal. (1) Notwithstanding the grant of a certificate for the admission of any appeal, the decree appealed from shall be unconditionally executed, unless the Court otherwise directs.
(2) The Court may, if it thinks fit on special cause shown by any party interested in the suit, or otherwise appearing to the Court, –
(a) impound any movable property in dispute or any part thereof, or
(b) allow the decree appealed from to be executed, taking such security from the respondent as the Court thinks fit for the due performance of any order which [the Supreme Court] may make on the appeal, or
(c) stay the execution of the decree appealed from, taking such security from the appellant as the Court thinks fit for the due performance of the decree appealed from, or of any order which [the Supreme Court] may make on the appeal, or
(d) place any party seeking the assistance of the Court under such conditions or give such other direction respecting the subject-matter of the appeal, as it thinks fit, by the appointment of a receiver or otherwise.
14. Increase of security fond inadequate. (1) Where at any time during the pendency of the appeal the security furnished by cither party appears inadequate, the Court may, on the application of the other party, require further security.
(2) In default of such further security being furnished as required by the Court:
(a) if the original security was furnished by the appellant, the Court may, on application of the respondent, execute the decree appealed from as if the appellant had furnished no such security;
(b) if the original security was furnished by the respondent, the Court shall, so far as may be practicable, stay the further execution of the decree, and restore the parties to the position in which they respectively were when the security which appears inadequate was furnished, or give such direction respecting the subject-matter of the appeal as it thinks fit.
15. Procedure to enforce orders of Supreme Court. Whoever desires to obtain execution of any order of [the Supreme Court] shall apply by petition, accompanied by a certified copy of the decree passed or order made in appeal and sought to be executed, to the Court from which the appeal to [the Supreme Court] was preferred.
(2) Such Court shall transmit .the order of [the Supreme Court] to the Court which passed the first decree appealed from, or to such other Court as [the Supreme Court] by such order may direct, and shall (upon the application of other party) give such directions as may be required for the execution of the same; and the Court to which the said order is so transmitted shall execute it according, in the matter and according to the provisions applicable to the execution of its original decrees.
(4) Unless [the Supreme Court] is pleased otherwise to direct, no order of [the Supreme Court] shall be inoperative on the ground that no notice has been served on or given to the legal representative of any deceased opposite-party or deceased-respondent in a case, where such opposite- party or respondent did not appear either at the hearing in the Court whose decree was complained of or at any proceedings subsequent to the decree of that Court, but such order shall have the same force and effect as if it had been made before the death took place.
16. Appeal from order relating to execution. The orders made by the Court which executes the order of [the Supreme Court], relating to such execution, shall be appealable in the same manner an subject to the same rules as the orders of such Court relating to the execution of its own decrees.
1. Omitted by the Federal Court Act, 1941 (XXI of 1941), S.I}.