Law:

Section:

Civil Procedure Code (V of 1908), O. XLI, r. 11 read with High Court Rules and Orders (Lahore), Vol. V, Chap. 3-B, r. 1(i) and Sind Chief Court Rules (A. S.), Chap. VI, r. 46-Regular First Appeal- Dismissal in limine--Consistent practice of both the Lahore High Court and the Sind Chief Court that Regular First Appeal be not dismissed in limine. A Single Judge of the High Court of West Pakistan (Karachi Bench) dismissed a Regular First Appeal in limine. In appeal before the Supreme Court the contention was that a High Court Judge sitting alone can only hear a motion for the admission of a First Appeal and that he has no power to dismiss a First Appeal as, according to rule 4 of Chapter 3-B, Vol. V of the Lahore High Court Rules and Orders, all other matters have to be heard and disposed of by a Bench of two Judges. It was urged that the consistent practice of the High Court was not to dismiss a Regular First Appeal in limine. Held: The language of rule 1, Chapter 3-B, Vol. V, of the High Court Rules and Orders (Lahore) does indicate that a Judge of the High Court sitting alone has the power "to hear and dispose of a motion for the admission of a first appeal"; but according to the practice followed by the Lahore High Court and all other' Judges of the Karachi seat of the West Pakistan High Court, the "disposal" has been restricted to "admission" or "reference to a Division Bench" for prelimi­nary hearing under Order XLI, rule 11 of the Code of Civil Procedure. The language of this rule could certainly have been: more specific; but since it does not clearly exclude the possibility of a restricted interpretation being put upon it in the manner in which it has been done by the consistent practice of the Court itself which framed the Rule, it would not be proper to depart now from this practice. If this practice is not intended to be followed, then the rule should be amended suitably to make the intention clear. A Judge sitting alone should not, in any event, depart from the consistent practice of his own Court. If he felt that the practice should be changed he should have the matter referred to the Chief Justice for being placed before the Full Court. Begum Humayun…

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