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Civil Petition No. 392 of 1980, decided on 4th March, 1985.

(Against the judgment and order, dated 19th December, 1979 of the Lahore High Court, Lahore, in L.P.A. No. 4/C of 1975).

‑‑Art. 185(3)‑‑Civil Procedure Code (V of 1908), O. III, r. 4‑‑Non compliance of provisions of O. III, r. 4, C.P.C.‑‑Competency of appeal‑‑Defect only in not properly completing power‑of‑attorney, excusable‑‑Power‑of‑attorney unsigned by appellant‑‑ Counsel presenting appeal died‑‑Successor counsel filed proper Vakalatnama after limitation‑‑Appeal dismissed as not having been properly presented within period of limitation‑‑Order set aside in Second/Letters Patent Appeals‑ Leave to appeal refused on ground that decision was based on findings of fact recorded in first appeal and was in conformity with law laid down by Supreme Court.

Toor Gul v. Mst. Mumtaz Begum P L D 1972 S C 9 and Ismail and others v. Mst. Razia Begum 1981 S C M R 687 rel.

Ch. Ghulam Mujtaba, Advocate‑on‑Record for Petitioners.

C. A. Rehman, Advocate Supreme Court with Hamid Aslam Qureshi.

Advocate‑on‑Record for Respondent No. 1.

Date of hearing: 4th March, 1985.

The petitioners who are the defendants seek leave to appeal against the judgment of the Lahore High Court, dated 19th December, 1979 whereby the non‑compliance with provisions of Order III , rule 4, C . P. C . in filing the first appeal was held to be an irregularity excusable on the facts of the case.

2. The plaintiff‑respondents filed an appeal before the first appellate Court on 16th May, 1958. It was filed by late Mr. M.A. Rehman. The power‑of‑attorney did not bear the signature of the plaintiff‑respondent but it bore the acceptance of Mr. M.A. Rehman. Subsequently, Mr. M.A. Rehman died and was succeeded by another lawyer who had alone a proper power‑of‑attorney on behalf of the plaintiff‑respondent. An objection was taken to the very competence of the appeal as there was no proper presentation of it and due execution of the power‑of‑attorney had taken place after the period of limitation had expired. This objection prevailed with the District Judge who held that there was no proper presentation of the appeal within the period of limitation. He based this finding on the following observations:‑

"A reference to the power‑of‑attorney, dated 15th May, 1958 attached to the memorandum of appeal shows that it is not signed or thumb‑marked by Muhammad Sarwar alias Feroze Ali appellant. The appeal was presented by Mr. M.A. Rahman on behalf of the appellant on 15th May, 1958 and the appellant himself was not present at that time. The present petition (presentation) is not therefore, proper. The power‑of‑attorney dated 17th October, 1958 which is duly signed by Feroze Ali appellant in favour of Mian Abdul Hamid Pleader was produced long after the expiry of the period of limitation for the appeal.

3. A regular second appeal was filed by the plaintiff‑respondent which succeeded partially. The learned Judge in the High Court held as follows:‑

"I have no doubt in my mind that the appeal had been filed by Ch. M.A. Rehman under instructions from the appellant although. I am unable to say from the material at present before me whether the appellant had, in fact, signed a Vakalatnama in favour Ch. M.A. Rehman, which was stated to have been subsequently misplaced by the clerk. In the circumstances the learned District Judge ought to have considered before dismissing the appeal whether the appellant should be allowed to make a proper presentation of the memorandum and if there are sufficient reason for the condonation the delay in the filing of a proper appeal."

4. The Letter Patent Bench allowed to the plaintiff‑respondent concluding as follows:‑

"Consequently it is held that the appeal filed by the plaintiff -appellant, Muhammad Sarwar before the District Judge, Gujranwala, was presented lawfully and in a proper manner and was liable to be disposed of on merits in accordance with law. The judgment of the learned Single Judge is modified to that extent."

5. The learned counsel for the petitioner contended before us that there was in fact no compliance with the requirements of Order III, rule 4, C.P.C. that there was no proper presentation of the appeal and that the right which had come to vest in the petitioner could not be nullified by showing such an indulgence as was shown to the appellant. The learned, counsel attempted to distinguish the cases on which reliance was placed by the High Court.

6. We find that in granting the relief to the plaintiff‑respondents who were appellants before the first appellate Court certain finding of fact had been recorded and they formed the basis of the decision. For example, the finding that the appeal had been filed by Mr. M.A.Rehman under instructions from the appellant and the defect was only in not properly completion the power‑of‑attorney. On such a finding the decisions of this Court in Toor Gul v. Mst. Mumtaz Begum P L D 1972 S C 9; Ghulam Qadir and others v. Abdul Sattar and others, PLD 1984 S C 12 and Ismail and others v. Mst. Razia Begum 1981 SCMR 687, would be attracted and justify the treatment afforded by the Letters Patent Bench of the High Court. We do not find any merit in the petition and leave to appeal is refused.

M.I. Leave to appeal refused.

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