Law:

Section:

Restoration-- —Civil appeal-Dismissal for non-prosecution of-Restoration of--Prayer for~It is evident from Order XLI Rule 17 of C.P.C. that an appeal can be dismissed in default on date fixed for hearing but it is discretionary with appellate Court to dismiss it or adjourn it to another date-In this case, appeal was not fixed for hearing for 5.1.1973, and it could not be dismissed in default-Held: by rejecting application of appellants for restoration of appeal, Additional District Judge committed an illegality and as such his order is not sustainable—Appeal accepted.                                       [Pp.266267]A,BC PLD 1964 Baghdadul Jadid 8, PLD 1970 Lahore 412, PLD 1971 Lahore 746,1973 SCMR 103 and PLD 1990 SC 285 rel. PLD 1975 SC 678 distinguished. JUDGMENT This appeal has arisen out of order, dated the 2nd November, 1974, passed by an Additional District Judge of Gujranwala. By the impugned order the learned Additional District Judge had declined to restore an appeal filed by the appellants, Muhammad Tufail and others, against one Din Muhammad, which had been dismissed by him in default. 2. Before the appeal was so dismissed, it was pending before the District Judge, Gujranwala. On 23rd December, 1972, the learned District Judge transferred the appeal to the learned Additional District Judge and directed the parties to appear before him (Additional District Judge) on 5lh January, 1973. No one entered appearance before the learned Additional District Judge on the last mentioned date and, therefore, the appeal was dismissed for want of prosecution. The appellants made an application for restoration of the appeal stating that the said date, namely, 5th January, 1973 was not notified by the learned District Judge while making order, in the presence of the parties, with regard to the transfer of the appeal to the learned Additional District Judge and that the direction in respect of appearance of parties before the learned Additional District Judge was added subsequently. The said Din Muhammad, who was respondent in the instant appeal, died during the pendency…

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