Law: Civil Procedure Code (V of 1908)

Section: O.XLI,R.17

Civil Procedure Code (V of 1908)--- ----O. XLI, R. 17---Dismissal of appeal in default---Scope---Appellate Court had erred while discussing the merits of the case in the impugned order where appeal was dismissed in default---High Court observed that courts were required to decide cases on merits by affording adequate opportunities to the parties to put across their viewpoints rather resorting to disposal of cases through dismissal---Impugned order was set aside and case was remanded for final disposal---Revision was accepted in circumstances. JUDGMENT QAISER RASHID KHAN, J.---Through the petition in hand, the petitioner has challenged the impugned judgment and order dated 8-3-2012 of the learned Additional District Judge-I, Peshawar whereby his appeal preferred against the judgment and order dated 10-11-2010 of the learned Civil Judge-II, Peshawar was dismissed. 2. Learned counsel for the petitioner argued that the learned appellate court was not within its legal right to dismiss the appeal by discussing the merits of the case in detail and could have dismissed the same in default in case the same was to be dismissed on account of the absence of the appellant and his counsel. 3. Learned counsel for the respondents Nos.1 to 5 in a lukewarm manner resisted the arguments submitted by the learned counsel for the petitioner albeit with the submission that the petitioner wilfully absented himself from appearance before the learned appellate court and resultantly the learned appellate court was left with little choice but to dismiss the appeal. However, as far as discussing the merits of the case, learned counsel candidly conceded that the learned appellate court had legally erred while doing so. 4. The learned D.A.G. on his turn supported the arguments of the learned counsel for the petitioner and stated that an opportunity should have been afforded to the appellant to present their viewpoint before the appellate court. Arguments heard and record perused. 5. No doubt, the appeal of…

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