Law: Civil Procedure Code (V of 1908)

Section:

  Civil Procedure Code (V of 1908)-- ---0. XLI, R.12---Once an appeal is admitted to regular hearing under O.XLI, R.12, C.P.C. it becomes incapable of being disposed of on merits without hearing the appellant and the Court has no escape therefrom for deciding it on merits, it may, of course, dismiss it in default of appearance of the appellant but cannot proceed to decide it on merits, just behind his back. Civil Procedure Code (V of 1908)-- ---0. XL1, Rr.12 & 16---When counsel for the appellant had been elevated to the Bench, appellant was entitled to be notified the date of hearing as stated in O.XLI Rr.12 & 16, C.P.C.---Where no such notice was issued to the appellant before the appeal was taken up and dismissed without explicit order, such a dealing of appeal had to be regarded a mere coram-nonjudice to become liable to be simply ignored. Civil Procedure Code (V of 1908)-- ---0. XLI, Rr.16 & 31---Provisions of O.XLI, Rr.16 & 31, C.P.C. call for passing of clear orders of acceptance or dismissal of appeals and because of absence of a specific order of dismissal in the Regular Second Appeal, office had to treat it as still pending and awaiting to be decided. Sardar Muhammad Hussain Khan for Appellant. ORDER Learned counsel has rightly urged in para.5 of the application that there is no explicit order dismissing the appeal and a mere observation stands made in the order dated 16-1-1989 to the effect that in view of the Supreme Court judgment of 1988 suit cannot be decreed at this stage. Even the Supreme Court has changed its view in the   latest judgment reported as Ahmad v. Abdul Aziz PLD 1989 SC 771 and this, in itself, is a reason for this case being accordingly reconsidered and, if need be there, the R.S.A. has to become entitled to be restored for that purpose. This R.SA. had crossed limine stage of consideration on 3-10-1987 when it was admitted to regular hearing. After crossing that stage, a civil appeal comes to be dealt with in the manner provided for in Order XLI, Rule 16 et seq which clearly enjoins hearing of the appellant in support of his appeal so that a…