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‑‑‑ O. XLI, r. 17 (I)‑Appeal‑Ex parte dismissal on merits‑Word "may" occurring in r. 17 (1)‑Gives discretion to appellate Court to dismiss appeal in default or adjourn it to another date for hearing Rule, however, held, does not empower appellate Court to dismiss appeal on merits in such eventuality‑Dismissal of appeal on ground of limitation, held further, tantamounts to its disposal on merits . [Appeal (civil)‑Interpretation of statutes‑Words and phrases].

Messrs S. M. Abdullah & Sons v. Messrs Pakistan Mercanttle Corpora tion Ltd., Karachi and another P L D 1976 Karl, 268 ref.

M. A. Gauhar for Petitioners.

C. R. Aslam for Respondents Nos. 1 to 16.

S. M. Naqi for Respondent No. 17.

Date of hearing : 24th March 1982.

The petitioners M. Saeed Ahmad Dar and others, filed an appeal before Additional District Judge. against the judgment and decree, dated 25th May, 1977, passed by a Civil Judge. The decree was in favour of the respondents Shahab‑ud‑Din and others. The appeal came up before the learned Additional District Judge on 10th August 1981 for hearing when none appeared before him to prosecute the appeal. It was, therefore, dismissed by the learned Additional District. Judge for being time‑barred. Feeling aggrieved by the order of the learned Additional District Judge, the petitioners have come up in revision to this Court.

2. It was contended by learned counsel for the petitioners that since nobody had appeared before the learned Additional District Judge on 10th August 1981 it was discretionary with him to either dismiss the appeal in default or adjourn it to another date for hearing but he had no jurisdiction to decide the appeal on merits. In this connection, he invited my attention to Messrs S. M. Abdullah & Sons v. Messrs Pakistan Mercantile Corporation Ltd. Karachi and another P L D 1976 Kar. 268.

3. In reply, it was urged by learned counsel for the respondents that the learned Additional District Judge could dismiss the appeal for being time‑barred even in the absence of the petitioners and their counsel. He did not cite any authority to support his argument. It was maintained by learned counsel for the respondents that In view of the word "may" used in sub- rule (1) of rule 17 of Order XLI of the Code of Civil Procedure the learned Additional District Judge had the jurisdiction to dismiss the appeal on merits.

4. To my mind, the word "may" occurring in sub‑rule (1) of rule 1 gives a discretion to the appellate Court to dismiss the appeal in default o adjourn it to another date for hearing but it does not empower that Court to dismiss the appeal on merits. This view is supported by the case of Messrs S. M. Abdullah & Sons relied upon by learned counsel for the peti tioners. The dismissal of the appeal on the ground of limitation was also its disposal on merits. Since the learned Additional District Judge could not hear and decide the appeal on merits in the absence of the petitioners or their counsel, the order made by him was without jurisdiction.

5. Accordingly, I accept this revision petition with costs, set aside the impugned order dated 10th August 1981, and. remand the appeal to the learned Additional District Judge for fresh decision in the light of the above observa tions and according to law. Needless to say that while deciding the appeal again, he will re-determine the question of limitation along with other questions involved in the appeal.

6. The parties are directed to appear before the learned Additional District Judge on 17th April, 1982.

7. Since the parties have been litigating for a long time the learned Additional District Judge shall re‑decide the appeal expeditiously and in any case within six months.

S.A.H. Revision allowed.

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