Law: Civil Procedure Code (V of 1908)

Section:

Civil Procedure Code (V of 1908)-- ---- 0. XLI, Rr.19 & 17 --- High Court (Lahore) Rules and Orders, Vol. V, Chap. 3-A, R. 8 --- Petition for restoration of appeal dismissed in default -- Expression "called on for hearing" as used in OXLI, R. 17, C.P.C. presumed the completion of all earlier steps envisaged by Rr. 11 to 16 of O.XLI, C.P.C---Advocate who prosecuted the appeal died during pendency of appeal and appellant had no knowledge of fixation of appeal - -- Appellant who was an uneducated female from a village filed an affidavit sufficiently showing the non receipt of the intimation respecting date of hearing fixed for appeal and there was no sound material for holding against her on this point ---Except for a mere presumption raised in R. 8, Chap. 3A, VoI.V of High Court (Lahore) Rules and Orders, there was no evidence about actual service of the registered post card upon the appeHant-------------------------------- HQld, in presence of affidavit of appellant it was not difficult to conclude that appellant was not served with any intimation regarding fixation of her appeal and Court passed the order of dismissal in default without notice of the appeal to the appellant--------------------------- Order of the Court, therefore, was a nullity and dismissal of appeal for default in appearance without notice or intimation to the appellant may eventually turn out to be an unjust and illegal act. [pp. 216,217,2181 A, B, C, D, E & F Khushi Muhammad v. Shaha etc. PLD 1967 Lah. 151; Muhammad Ali v. Governor-General-in-Council AIR 1949 All. 36 and Bhagwati Prasad and another v. Ram Roop Tewari and others AIR 1962 All. 622 rel. Khushi Muhammad. v. Shaha etc. PLD 1967 Lah. 151; Malik Muhammad Nazir v. Mian Abdur Rahim and another PLD 1968 Lah. 792; National Bank of Pakistan v. The Additional District Judge, Lahore and 2 others PLD 1985 Lah. 326; Haji Ghulam Sarwar v. Daya Ram 1975 SCMR 199; Lal Dino and others v. Deputy Commissioner and others 1982 SCMR 201; Syed Muhammad Siddique Shah and others. v. Sh. Muhammad Afzal and others 1984 CLC 349; Muhammad Ali v. Govemor-General-in-Council AIR 1949 All. 36 and Bhagwati Prasad and another v. Ram Roop…