Friday, 12 December 2014

Decision without properly hearing parties in an appeal

P L D 2003 Lahore 27
Before Syed Zuhid Hussain, J
SAZIA SULTANA‑‑‑Petitioner
Versus
RAZIA BEGUM‑‑‑Respondent
Civil Revision No. 1558 of 1999, decided on 12th November 2002.
 (a) Civil Procedure Code (V of 1908)‑‑‑
---O. XLI, Rr. 30 & 17‑‑‑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 cam 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 indefensible 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 duty 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, 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 tote 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.
 (b) Administration of justice‑‑
‑‑‑‑‑Justice delayed is justice denied‑‑‑Justice rushed is justice crushed‑‑‑Court which is charged with onerous duty and responsibility of administering justice is expected to maintain a balance so that neither the matter is delayed unnecessarily nor its disposal is made 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.
 (c) Constitution of Pakistan (1973)‑‑‑
‑‑‑‑Art. 203‑‑‑Object, rationale and underlying idea discernible from Art203 of the Constitution‑‑‑Word "control" occurring in Art.203‑‑‑Connotation.
The object, rationale and underlying idea discernible from the reading of Article 203 of Constitution of Islamic Republic of Pakistan, 1973 appears to be to secure judicial independence by making subordinate Courts completely free from executive and extraneous control. It has vested in the superior Court in the hierarchy i.e. High Court, the supervision and control Of the Courts subordinate to it. The word "control" is comprehensive enough to include the general superintendence of the working and administrative control over the members of the subordinate judiciary. Such a control and supervision should be aimed at the advancement of the judicial independence and by no means to impede or frustrate the very object and purpose. 
Article 203 of the Constitution merely empowers the High Courts to supervise and control all Courts subordinate to it. The power is meant to enable the High Court to discharge its duties as a superior Curt towards fair and proper administration of justice. The High Court has the authority to check and prevent dereliction of duty and to stop as well as correct violations of law. "Superintendence" includes the power to guide, advise and encourage Judges of the subordinate Courts. Supervision and control is for making and keeping the administration of justice pure and not to help any particular party. It is not contemplated in the terms of the Article that the High Court should issue an order against a party to a cause as such. 
The High Court under this Article is concerned with its lower Courts only and has to keep an eye on them so that they may not fail to do their own duties apart from the problems and interests of the parties, such duties are to attend the Courts regularly and punctually; to hear and decide those cases only which fall within their jurisdiction and not to hear and decide those which may be ousting their jurisdiction; to obey legitimate directions of their superior authorities; to know the law and to conduct themselves like judicial officers. Their judicial orders and judgments are subject to scrutiny, on appeal or revision, in accordance with the provisions that confer those jurisdictions on Courts of various grades.
Karim Bakhsh v. Mst. Mubarik Jan PLD 1970 Pesh. 169; Emperor v. Tarapore AIR 1940 Sindh 230; Abdul Rehman v. Mst. Chaman Ara PLD 1972 Kar. 164; Sharafat Afaridi and 3 others v. The Federation of Islamic Republic of Pakistan through Prime Minister of Pakistan and another PLD 1989 Kar. 404 and Government of Sindh through Chef Secretary to Government of Sindh, Karachi and others v. Sharaf Faridi and others PLD 1994 SC 105 ref.
 (d) Civil Procedure Code (V of 1908)‑‑‑
‑‑‑‑O. XLI, Rr.17, 19 & 30‑‑‑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 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 XLI, 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 readmit the appeal on such terms as to costs or otherwise as the Court thinks tit, provided the appellant shows sufficient cause for his nonappearance. On the other hand, if the appellant appears and the respondent does not appear, the appeal may be heard ex pane. 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.
Qazi Zahid Hussain for Petitioner.
Syed Kazim Bokhari for Respondent.
Date of hearing: 12th November, 2002.
JUDGMENT
A suit instituted by respondent No. 1 under section 39 of the Specific Relief Act, 1877 for the cancellation of saledeed dated 1031979 was decreed by the learned Civil Judge, Lahore on 2841998, where against the appeal preferred by the petitioners was dismissed by the learned Additional. District Judge, Lahore on 3091999. This is revision petition there against.
2. The judgment of the learned Appellate. Court is sought to be assail inter alia on the ground that on 3091999 the same was rendered without hearing the petitioners/appellants as their counsel was not available at that time due to engagements before the High Court and request for adjournment was declined by the Court in view of a directive issued by the Member Inspection Team of this Court dated 2671999. The learned counsel for the petitioners had referred to certain portions of the judgment of the learned appellate Court to demonstrate that as a consequence of such a hasty decision by the learned Additional District Judge, the petitioners have been condemned unheard. It is contended that in any case the appeal could not be dismissed on merits and course open to the Court under Order 41, Rule 17, C.P.C. could at the most be adopted. Reference has also been made to Rule 30 of Order 41, C.P.C. to contend that the learned Appellate Court acted illegally in the matter. In support of his contentions reference has been made to M. Muhammad Sadiq and another v. Punjab Road Transport Board through its Managing Director (1991 SCMR 2321). Thakur Sukhpal Singh v. Thakur Kalyan Singh and another (AIR) 963 SC 146) and Karim Bakhsh v. Mst. Mubarik Jan (PLD 1970 Peshawar 169). The learned counsel for the respondents supports the judgment of the learned Additional District Judge and contends that number of adjournments had been sought by the petitioners and it was thus necessary for the Appellate Court to decide the appeal to avoid further prolongation thereof. It, is contended that the instructions issued by the Member, Inspection Team of this Court could not be ignored by the Court below who thus acted legally in deciding the appeal before the target date i.e. the end September of 1999. He has relied upon Jeewan Bakhsh and others v. Fazal Ahmad and 52 others (1996 CLC 2016), Barak Ullah v. The State (1997 SCMR 274), Abdullah and another v. Mian Tafa2zul Hussain and another (PLD 1961 BaghdadulJadid 58) and Babu Ram v. Bhagwan Din and another (AIR 1966 Allahabad 1).
3. In order to comprehend the circumstances in which the appeal was decided by the learned Appellate Court paragraph 6 of the judgment of the learned Additional District Judge, which in itself contains the events of that date may be reproduced hereunder:‑‑
"In this appeal Hon'ble High Court was pleased to issue a direction that the appeal be disposed of up till 3091999. The respondents in this appeal avoided to argue the case and soughtfor adjournments on one pretext or the other, as the order sheet would show in this regard. I adjourned the matter with the warning of last opportunity for arguments but even on the said date learned counsel for the appellants could not appear due to his occupation in other Courts. Another opportunity was granted but in vain. Ultimately respondent filed an application for transfer of this case to the learned District Judge, Lahore. This application was dismissed vide order dated 2891999 and parties were directed to appear before this Court at 200 p.m. on the same date, keeping in view the direction of the Hon'ble High Court for disposal of this appeal up till 3091999. Learned counsel for the respondent was present, but original counsel for the appellant was not present. However, Mr. Muhammad Afzal Loan appeared on his behalf: The case was adjourned for 2991999 and a it was specified that the arguments would be heard at 1130 p.m. On 2991999 counsel for the respondent was present but none appeared from the appellants side at 1130 a.m. The case was kept in waiting with the direction that would come up at 1230 p.m. At 130 p.m. Mr. Afzal Loan appeared on behalf of counsel for the appellants. Counsel for the respondent was also present, it was requested by Mr. Afzal Loan that an adjournment may be granted for filing a transfer application before the Hon'ble High Court. As there is direction of the Hon'ble High Court for disposal of this case up till 3091999 hence the request was turned down. Mr. Afzal Loan was intimated accordingly and he was intimated that the arguments would be heard at 130 p.m. therefore, original counsel for the appellant should appear. At 130 p.m. Mr. Afzal Loan stated that counsel for the appellant was busy in the High Court and requested for adjournment. Learned counsel for the respondent stated that he was unable to argue in this case as he had to reply to the arguments of the appellant which were not being advanced. In the circumstances of the case as the target date for disposal of this peal is 3091999, the case was adjourned for 3091999 for Perusal of the appeal and for orders." (Portions underlined in view of their relevance in the context of the controversy).
The perusal of above shows that neither the learned counsel for the appellants was present or heard nor the learned counsel for the respondents was in a position to argue the case, yet the learned Additional District Judge proceeded to decide the same by himself on merits. This was understandably in view of the direction by the Member, Inspection Team that the appeal be decided before the end of September, 1999.
4. Two points of some importance arise as to whether the direction issued by the Member, Inspection Team was of such a mandatory nature that the case could not be adjourned even for a day to enable the learned counsel for the appellants to argue the same; and could the appeal be dismissed on merits. It may be stated at the outset that the remedy of appeal, in particular the first appeal, is as of right which a suitor is entitled to avail under the law i.e. the Code of Civil Procedure 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. A direction of the nature issued by the Member, Inspection Team of this Court, which was at the most administrative in nature could not be made a basis for denying the appellant the right of hearing as envisaged by Rule 30 of Order 41 C.P.C. Needless to observe that judicial power or jurisdiction to administer justice in accordance with law cannot be abdicated merely to honour any executive or administrative instruction or directive. In order to keep the streams of justice clean and unpolluted the Court is expected to shun every extraneous instruction/direction and act purely in accordance with law. Such a direction of the Member, Inspection Team could only be regarded as directory, enabling the Court to expedite the hearing/decision, but in no case could be given supremacy over the explicit legal provisions. The possible source for the issuance of such a direction by the Member, Inspection Team of the Court is Article 203 of the Constitution of Islamic Republic of Pakistan, 1973, which reads as under:‑‑
"203. High Court to superintend subordinate Courts.‑‑‑Each High Court shall supervise and control all Courts subordinate to it."
There were identical provisions in the predecessor Constitutions as, well. Article 102 of the Constitution of 1962 was similarly worded, which had received judicial interpretation. In Karim Bakhsh v. Mst. Mubarik Jan (PLD 1970 Peshawar 169), a Division Bench of the West Pakistan High Court while considering the same observed "Article 102 of the Constitution on the contrary merely empowers the High Courts to supervise and control all Courts subordinate to it. The power is meant to enable the High Court to discharge its duties as a superior Court towards fair and proper administration of justice. The High Court has the authority to check and prevent dereliction of duty and to stop as well as correct violations of law. As observed in Emperor v. Tarapore (AIR 1940 Sindh 230) "superintendence" includes the power to guide, advise and encourage Judges of the subordinate Courts". It was observed that "supervision and control is for making and keeping the administration of justice pure and not to help any particular party." It was further observed that: "It is not contemplated in the terms of Article 102, that the High Court should issue an order against a party to a cause as such. "In Abdul Rehmati v. Mst. Chaman Ara (PLD 1972 Karachi 164), the Full Bench of the High Court of Sindh while considering Article 102 of the 1962 Constitution, observed that "The High Court is under this Article concerned with its lower Courts only and has to keep an eye on them so that they may not fail to do their own duties apart from the problems and interests of the parties. Such duties are to attend the Courts regularly and punctually; to hear and decide those cases only which fall within their jurisdiction and not to hear and decide those which may be; ousting their jurisdiction; to obey legitimate directions of their superior authorities; to know the law and to conduct themselves like judicial officer. Their judicial orders and judgments are subject to scrutiny, on appeal or revision, in accordance with the provisions that confer those jurisdictions on Courts of various grades". The view taken in the above cases was adopted in a later Full 'Bench case Sharafat Faridi and 3 others v. The Federation of Islamic Republic of Pakistan through Prime Minister of Pakistan and another (PLD 1989 Karachi 404) which was upheld by the Hon'ble Supreme Court in Government of Sindh through Chief Secretary to Government of Sindh, Karachi and others v. Sharaf Faridi and others (PLD 1994 SC 105). That is the import of .Article 203 and extent of supervisory control as highlighted in the above precedents.
5. The object, rationale and underlying idea discernible from the reading of Article 203 of Constitution of Islamic Republic of Pakistan, 1973 appears to be to secure judicial independence by making subordinate Courts completely free from executive and extraneous control. It has vested in the superior Court in the hierarchy i.e. High Court, the supervision and control of the Courts subordinate to it. The word "control" is comprehensive enough to include the general superintendence of the working and administrative control over the members of the subordinate judiciary. Such a control and supervision should be aimed at to advance the judicial independence and by no means impede or frustrate the very object and purpose.
6. As to the options legally available to the Court it may be mentioned that provisions of Rule 17 of Order 41 are clear by themselves, which only enable the Court to dismiss the appeal in default. The legal position in this respect is quite consistent. In M. Muhammad Sadiq and another (supra), it was clearly laid down by their Lordships that "if after admission of the appeal for regular hearing, on the adjourned date of hearing, the appellant is absent, under Order 41, rule 17, a discretion is conferred on the Court to dismiss the appeal. The exercise of such power under Order 41, rule 17, C.P.C. is not intended to the imperative but is discretionary. The dismissal for want of prosecution under this rule is not a decision on merits, and under Order 41, rule 19 on application of the appellant the Court can readmit the appeal on such terms as to costs or otherwise as the Court thinks fit, provided the appellant shows sufficient cause for his nonappearance. 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 this rule nowhere empowers the Court to render a decision on merits in the absence of the appellant. A decree on merits is envisaged by Order 41, rule 30 and hearing of both the sides is the condition precedent for such a decree. "The same had been the position in the past and also till now. Reference may be made to 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 Lahore 152)., Prince Sheikh Abdul Qadir v. Nawab Sheikh Nasiruddin and 7 others (PLD 1993 Karachi 216) and Malik Muhammad Ahsan and others v. Mst. Hameeda Begum (1999 MLD 1941). Reference made to Barkat Ullah v. The State (1997 SCMR 274) by the learned counsel for the respondents is inapt inasmuch as the precedent case related to a criminal appeal and it was section 423 of Criminal Procedure Code; that was considered by the Court, which in view of its scope and content had totally different ramifications.
7. Now adverting to the facts of the instant case if the learned counsel for the petitioners/appellants was not in a position of advance arguments on 2991999 due to his engagements before this 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. The contents of paragraph 6 of the judgment of the learned Appellate Court, however, indicate that even the learned counsel for the respondents had expressed his inability to argue the case. A day's adjournment would not have made much difference but in a zeal to dispose of the appeal the same day, the relevant provisions of law were overlooked which has certainly resulted in not only inconvenience to the parties but also has delayed the disposal of the matter. There is no cavil nor there can be two opinions that "justice delayed is justice dented", but, at the same time it is also to be kept in view that some times "justice rushed is justice crushed". The Court which is charged with onerous duty and responsibility of administering justice is expected to maintain a balance so that neither the matter is delayed unnecessarily nor its disposal is, in such a hasty manner as may be violative of the law and fairness. In view of the preponderance of the view taken in number of precedents the appeal could not have been dismissed by the learned Additional District Judge, Lahore on merits, which exercise undertaken by him was futile and violative of the law on the subject.
As a result, the judgment dated 3091999 is not sustainable in law and is set aside. The apl.4al filed by the petitioners shall be deemed pending before the learned District Judge, Lahore, who may if possible hear and decide the same by himself in accordance with law. In order to avoid further delay in disposal of the same the learned Appellate Court may endeavour to decide the same expeditiously.
Let the parties cause appearance before the learned. District Judge, Lahore on 2122002. The petition is disposed of accordingly. No order as to costs.          

M.B.A./S550/L                                                                                  Order accordingly.

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