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Regular Second Appeal No. 24 and Civil Miscellaneous No. 91 of 1970, decided on 14th June 1971.

S. 96‑Appeal‑Record bearing out of appellant as well as his counsel all along having prior knowledge of date of hearing and also of appellant in person participating in proceedings‑Appeal dismissed as being hopelessly time‑barred‑Appellant, in circumstances, held, can have no grievance of appeal having been decided without proper notice.

Muhammad Swaleh and another v. Messrs United Grain and Fodder Agencies P L D 1964 S C 97 distinguished.

Sultan v. Haji Niamat P L D 1965 Pesh. 219 ref.

S. Zafar for Appellant.

Karam Elahi for Respondent.

Date of hearing: 14th June 1971.

Through this appeal under section 100, C. P. C. one Mulla Sayed Ali challenges the judgment and decree passed by Majlis‑e -Shoora, Kalat Division dated 21st October 1970, by which the appellant's pending appeal against an ex parte order of Qazi of Pasni dated 20th March 1970, was dismissed.

2. I have heard Mr. S. Zafar learned counsel for the appellant and Malik Karam Elahi Awan, Advocate for the respondent. The main contention raised before me by the counsel for the appellant is that the learned First Appellate Court could not legally hear and dismiss his appeal on 21st of October 1970, because the case was fixed for 15th of October 1970 and a notice of the same effect was served on his client, this hearing according to him was without notice to the appellant, therefore, a grave irregularity has been committed by the learned First Appellate Court.

3. From the perusal of the record before me it appears that the appellant in fact has notice of the hearing of his appeal for 21st of October 1970, at Pasni as well and in fact he participated in the proceedings and argued his case himself. The order‑sheet of the Majlis‑e‑Shoora dated 21‑10‑1970 as well as para. 3 of the judgment which is reproduced below clearly shows that the contention raised by the appellant that he is unaware and notice is necessary before a matter could be heard has no bearing whatsoever to the facts of the case:

Order‑Sheet dated 21‑10‑70:

Para. 3 of the judgment dated 21‑10‑70:

4. At page 14 of the file of Majlis‑e‑Shoora there is an application filed by the learned Advocate for the appellant dated 19th October 1971, presented to the Court on the 21st of October 1970 by appellant in person wherein a prayer has been made to the Court for adjournment of the case to some other date either on a Monday or a Tuesday to enable the Advocate to avail the facilities of the P. I. A. flights to Pasni from Karachi. In this application it is admitted that the Advocate has telegra phically been intimated on 10‑10‑1970, for hearing of the appeal on 15‑10‑1970 at Pasni and a request for adjournment through Registered A. D. has been made by the said Advocate to some other date as according to him he was busy before the High Court of Sind and Baluchistan. It is further admitted in this very application by the Advocate that he was informed by the learned Tehsildar that the next date fixed for appeal is 21‑10‑1970, which date according to the Advocate falling on a Wednesday and no flight was available and he having a previous engagement, was unable to attend the hearing. When these facts were brought to the notice of the learned Advocate for the appellant that how he can say that he or his client had no knowledge of the appeal being fixed for 21st of October 1970, particularly when the appellant in person participated in the proceedings and his appeal was dismissed on the question of limitation as is shown by the judgment. The learned Advocate failed to give any satisfactory reply, all he said was that in spite of his knowledge it was necessary that the notice should have been served upon him for 21st of October 1970, by the Court. When it was pointed out to him that according to his own showing he was intimated by the Tehsildar about the fixation of the appeal for 21st of October 1970 and he moved an application stated above for adjournment to a next date how he can say that he had no knowledge or no proper notice under C. P. C. has been served upon him. He again could not make any satisfactory submission.

5. It was further pointed out to him that in case as accord ing to him he or his client had no proper service of the summons for hearing of appeal for 21st of October 1970, the appellant could simply move an application raising objection to that effect before the Court but on the contrary he argued his own case and participated in the proceedings, and on top of it the appeal was hopelessly time‑barred, the Court therefore, rightly dismissed it.

6. The learned counsel for the appellant however relied on Muhammad Swaleh and another v. Messrs United Grain and Fodder Agencies (P L D 1964 S C 97). In this case it was held that:‑

"Day, fixed for hearing, subsequently declared Court holi day‑---Court, taking up proceedings on following day, without notice to defendant, and, on his failure to appear, ordering ex parte proceedings‑Order, held, not valid‑Order and decree, passed ex parte, set aside."

This case is quite distinguishable from the case before me. Here the appellant as well as the counsel as is borne out from the record and all along prior knowledge not only of the date of hearing i.e. the 21st of October 1970, but also the appellant in person participated in the proceedings therefore, in my opinion, this case relied upon by the learned counsel for the appellant is of no help to him at all.

7. Malik Karam Elahi Awan the learned counsel for the respondent in reply relied on Sultan v. Haji Niamat (P L D 1965 Pesh. 219). This case was cited in reply to the objection of the counsel for the appellant that it is a legal necessity that the appellant must be assisted by his counsel. This contention of the learned counsel for the appellant holds no water as it has been laid down in this case that‑

"I do not find myself in agreement with the contention of the learned counsel for the appellant, because the law nowhere provides that litigants must be represented by counsel. Furthermore, the lower appellate Court had offered to adjourn the case on payment of costs, with a view to enable the appellant to engage a counsel, but this offer was declined by the appellant. Besides this, appellant was present all along in the Court during the hearing of the appeal and so it cannot be said that the appellant was not beard. In these circum, stances, I am of the opinion that the Additional District Judge was, perfectly right in hearing the appeal."

8. In view of the above facts and legal position I am of the opinion that the appellant having proper notice under the law and having participated in the proceedings can have no grievance in this case. The result is the appeal is dismissed with costs.

Appeal dismissed.

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