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Regular Second Appeal No. 2 of 1985, decided on 4th November,
‑‑‑O. XXXIII, r. 1‑‑Dastur‑ul‑Amal Diwani, Kalat, S. 12‑‑Formf pauperis‑‑Suit for separate application other than plaint, held, would not be required for suing as pauperis‑‑Petition to sue in forma pauperis, would be a composite document containing all that plaint could contain and annexed therewith schedule of movable, immovable assets and debts alongwith an application for being excused from the payment of court‑fee.
P L D 1977 Quetta 39; P L D 1971 S C 184; P L D 1976 Kar. 1075; P L D 1973 Quetta 43; P L D 1973 Quetta 43; 1985 S C M R 1692; and A I R 1949 Mad. 162 ref.
‑‑‑O. XXXIII, r. 1‑‑Dastur‑ul‑Amal Diwani, Kalat, S. 12‑‑Subject‑matter under S. 12 of Dastur‑ul‑Amal Diwani, and 0. XXXIII, r. 1 being same, former (Dastur‑ul‑Amal), held, would stand repealed and substituted by latter (Civil Procedure Code)‑‑Object of O. XXXIII, r.l, C.P.C. is to help needy person in order to foster justice which otherwise on account of poverty could not be availed of in absence of payment of required court‑fee and not to trap a deserving litigant merely on technicalities.
P L D 1973 Quetta 43; 1985 S C M R 16; 1985 C L C 663 and A I R 1932 Lah. 328 ref.
‑‑‑O. XXXIII, r. 1‑‑Forma pauperis‑‑Procedure not strictly followed‑ Effect‑‑Once permission to sue as pauperis having been granted, such permission, held, would remain intact for all intents and purposes unless, same had been legally reversed at proper stage.
Siddique Khan and 2 others v. Abdul Shakur Khan and another P L D 1984 S C 289ref.
‑‑‑O. XXXIII, rr. 6 a 9‑‑Forma pa uperis‑‑Dispute‑‑Right of defendant to be heard, illustrated‑‑Payment of court‑fee particularly in forma pauperis though a matter between Government and pauperis subject, yet defendant, held would have right to be heard on such matter‑ However, if such defendant could not be called at initial stage, right to object would remain intact while taking defence in suit‑‑Defendant, if felt aggrieved by order of paupering plaintiff, could move for dispaupering plaintiff under O. XXXIII, r. 9, Civil Procedure Code, 1908‑‑Failing to move such objection at proper stage before trial Court, would not entitle defendant to challenge same for first time before appellate Court in appeal, alongwith judgment and decree.
‑‑‑Ss. 96, 100 & 104 and O. XLIII, r. 1‑‑Forma pauperis‑‑Order of‑ Remedy pertaining to‑‑Order of forma pauperis not being "decree", held, would not be appealable under S.96, Civil Procedure Code, 1908‑ 8‑uch order was not appealable under Ss.100 &104 or O. XLIII, r. 1, C.P.C.
‑‑‑Art. 114‑‑Estoppel‑‑Effect of‑‑Where defendant voluntarily admitted claim of plaintiff in witness‑box, whereon decree was passed, such defendant, held, would not be allowed subsequently to challenge same‑ Conduct and‑acquiescence of such plaintiff would operate as estoppel in circumstances. ‑‑[Estoppel].
‑‑‑Ss. 2(2) a 12(6)‑‑Decree‑‑Mode of passing‑‑Decree, held, could be passed by Court either deciding dispute on merits or with consent of parties or on admission of parties‑‑Consent decree would always be passed with agreement of parties‑‑Admission of claim by itself could not be deemed to be a consent decree.
‑‑‑O XLI, rr. 17 & 19‑‑Word 'may'‑‑Meaning and scope‑‑By using word 'may' in r. 17 of O. XLI, Civil Procedure Code, 1908, discretion, held, would vest in Court to dismiss appeal, where appellant on date hearing of appeal absented himself‑‑However, Court would have discretion to adjourn same to some other date‑‑Court's dismissal of appeal on merit, in such case, would be treated to be a dismissal in default, but not on merit‑‑Such dismissal could not be deemed to be a decree‑‑Decree of trial Court would not merge in order passed by appellate Court in default‑‑Original decree would remain intact.
A I R 1962 Pu. 82; A I R 1921 Pat. 325; A I R 1938 All. 548; A I R 1923 Mad. 13; A I R 1925 Rang. 96; A I R 1929 Cal. 475; AIR 1929 Rang. 11(2); A I R 1953 Assam 191; I L R 3 Raj. 578; A I R 1924 All. 144; P L D 1976 Kar. 268 and P L D 1976 Kar. 268 ref.
Tahir Muhammad Khan for Appellant.
Iftikhar Muhammad for Respondent.
Dates of hearing: 3rd and 4th November, 1985.
.‑‑This appeal under section 100 of the Code of Civil Procedure (hereinafter referred to as the Code) read with section 24 of Dastur‑ul‑Amal Diwani, Kalat (hereinafter referred to as dastoor) is directed against the order, dated 7th November, 1984 of the Majlis‑e‑Shoora, Khuzdar whereby the first appeal filed by the appellant, against the judgment and decree, dated 29‑4‑1984 passed by Kazi, Turbat in favour of respondent was dismissed in default for absence of the appellant.
2. The facts giving rise to this appeal are that on 15‑4‑1984 the respondent (plaintiff‑decree‑holder in the suit and hereinafter referred to as the respondent) on basis of written agreement, dated 15‑3‑1984 filed an application against the appellant defendant‑judgment‑Debtor, (hereinafter referred to as the appellant) before the Deputy commissioner under Dastoor praying for recovery of Rs.1,28,000 as forma pauperis. After having a detailed enquiry through Tehsildar, obtaining securities admitting the plaint and written statement, the Deputy Commissioner under the provisions of section 11 of Dastoor referred the suit to Kazi, Turbat for adjudication.
3. The learned Kazi framed only one issue for determination of the dispute on 29‑4‑1984. On the same day it seems that the appellant entered the witness‑box, admitted the contents of the document executed by him on 15‑3‑1984 and the claim of the respondent. On basis of which the learned Kazi passed judgment and decree in favour of the respondent on the same day i.e. 29‑11‑1984 in the words as follows:‑‑---
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4. Being aggrieved against the above said judgment and decree of the learned Kazi, the appellant challenged it before Majlis‑e‑Shoora in a revision petition which on objection of the office was corrected by him as appeal and sought for permission of the Court to prosecute it as a pauper. No action appears to have been taken on his application but the Court on 12‑5‑1984 admitted it and ordered for issuance of notice against the respondent. The appeal came for hearing on 7‑10‑1984, when neither the appellant nor his counsel attended the Court but on telephonic request of the appellant's counsel the appeal was adjourned to 7‑11‑1984, when again both of them remained absent and sent a telegram requesting for adjournment of the appeal; but the learned appellate Court did not accede to their request and dismissed the appeal in default for their non‑appearance as under:‑‑
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The same have been assailed in this second appeal before this Court.
5. Mr. Tahir Muhammad Khan, Advocate appeared for the appellant, whereas Mr. Iftakhar Muhammad, Advocate represented the respondent.
6. On behalf of the appellant his counsel Mr. Tahir Muhammad Khan raised the following grounds in support of the appeal:‑‑
(i) Forma pauperis proceedings were conducted in a manner other than provided either under Order XXXIII of the Code or section 12 of the Dastoor, hence admission of the plaint being illegal; all subsequent actions taken thereon were void and of no legal effect.
(ii) That decree based on admission is not consent decree hence first appeal under subsection of section 96 of the Code was not barred.
(iii) In dismissal of appeal or non‑appearance under Order XLI, rule 17, the decree of the trial Court merged in that of the appellate Court; remedy lay in filing second appeal under section 100 not application under Order XLI, rule 19 of the Code for its restoration.
(iv) Technicalities of law not to defeat ends of justice.
7. On the other hand while repudiating the contentions of the learned counsel for the appellant Mr. Iftakhar Muhammad in support of the impugned orders contended that:‑‑
(i) Forma pauperis petition was disposed of according to law;
(ii) Consent decree passed; appeal barred under subsection (3) of section 96 of the Code;‑
(iii) Court‑fee not paid on first appeal as well as second appeal incompetent.
(iv) First appeal dismissed under Order XLI, rule 17 for default, second appeal under section 100 not competent; remedy lay under Order XLI, rule 19 of the Code for restoration of appeal.
(v) Court‑fee a fiscal matter dispute between a plaintiff and Govern ment; Court allowing petition pauperis; a defendant has no locus standi to challenge it.
8. Strenuously high‑lighting on his first ground Mr. Tahir Muhammad Khan the learned counsel for the appellant urged:‑
(i) That for seeking permission to sue as a pauper a separate application besides the plaint ought to have been moved by the respondent whose such intention by mere averment in the body of the plaint itself was not sufficient so that the plaint could have been entertained legally.
(ii) The Deputy Commissioner whose function under Dastoor is not more than that of a post office, after entertaining the plaint without taking decision on forma pauperis permission, had to refer it to the Kazi who being a civil Court competent enough to take action and could have taken decision thereon under the provisions of Order XXXIII of the Code which by enforcement of Ordinance of 1960, had impliedly repealed section 12 of Dastoor and had taken its place on the subject.
(iii)That the Deputy Commissioner himself neither followed procedure laid down under section 12 of the Dastoor nor that of Order XXXIII of the Code while deciding the application and referred the matter to Tehsildar for enquiry and report; and acted thereon his report;
(iv) Without affording opportunity of hearing to the appellant, the Deputy Commissioner in flagrant violation of the law of land and natural justice admitted the plaint;
(v) Proper presentation and admission of the plaint having not been made in accordance with law, all subsequent proceedings and action based thereon are illegal, void and without jurisdiction;
(vi) Without payment of court‑fee, there was no proper presentation of suit.
9. In support of his above said contention the learned counsel drew our attention to section 12 of Dastoor, Order XXXIII of Code and section 4 of the Ordinance of 1960. In addition thereto he relied upon the authorities referred to hereinunder.
(1) P L D 1977 Quetta 39, which reads as under:‑‑
"(d) Civil Procedure (Special Provisions) Ordinance (I of 1968), Ss. 3, 4 s 5‑‑Deputy Commissioner, duty of, to examine case. Examination of case by Deputy Commissioner before referring it to Tribunal. Necessary to find out .if a legally referable case existed or not. Disputes covered by meaning assigned to word‑ Alone to be referred to Tribunal for decision and not all disputes.
Deputy Commissioner, held, bound to determine by preliminary examination if dispute fell within category of "disputes" or‑not. Courts could not be required to adjudicate upon cases basically frivolous."
2. P L D 1971 S C 184 which reads as under:‑‑
"Order of a Tribunal found to be without jurisdiction. All successive orders based upon it illegal and liable to be quashed in writ jurisdiction."
3. P L D 1976 Kar. 1075 which reads as under:‑‑--
"Judicial order.‑‑Not to be passed without hearing parties or their counsel. Order passed by successor Judge without deciding pending application and hearing arguments set aside."
4. P L D 1973 Quetta 43 which reads as under:‑‑
"10. My conclusion, therefore, is that Dastur‑ul‑Amal Diwani to the extent that there are provisions on the same subject in the Code of Civil Procedure, 1908, though not identical stood repealed, and accordingly section 24 of the Dastur‑ul‑Amal Diwani stood repealed by section 100 of the Code of Civil Procedure, 1908 being the provisions contained in the C.P.C. on the same subject, notwithstanding the fact that while in the former Second Appeals would lie both on questions of fact a law in the latter they would be confined to law only."
10. Repudiating the above‑said contentions of the learned counsel for the appellant Mr. Iftakhar Muhammad submitted (i) that separate application for suing as pauper was not necessary, (ii) the Deputy Commissioner under Dastoor was not a post office as contended by the learned counsel for the appellant but fully competent under the provisions of sections 4 and 12 of Dastoor on Order XXXIII of the Code to enquire into correctness of the plaint including permission to sue as pauperis. However to depart from the effect of the ratio enunciated in case of PLD 1973 Quetta 43 relied upon by the learned counsel for the appellant, the learned counsel stressed that section 12 and Order XXXIII were not identical provisions hence did not fall under the mischief of Ordinance of 1960 in result whereof obviously it remained intact in field, the later neither repealed the former nor took its place and the Deputy Commissioner was justified in holding enquiry thereunder and admitting the plaint. He relied on a case reported in 1985 S C M R 1692. When his attention was drawn to the fact that both items covered the same subject and that was the ratio enunciated in the abovesaid authorities which was in four with the facts of the case; he half‑heartedly accepted the same. The learned counsel, however, further stressed hat as the appellant had not challenged the disposal of the forma pauperis application before the Kazi in his written statement or otherwise but on the contrary admitted the claim of the respondent whereon decree was passed against him, hence by his conduct, waiver and acquiescence he is estopped to challenge it subsequently at any stage of proceedings in appeal, revision or otherwise. To dilate upon the contentions raised by both the counsel of the parties it would profitable to reproduce the provisions of the relevant law referred to:‑‑---
1. O.XXXIII(1)---------------------------------------------------
2. Contents of application.‑‑Every application for permission to sue a pauper shall contain the particulars required in regard to plaints in suits; a schedule of any movable or immovable property belonging to the applicant, with the estimated value thereof, shall be annexed thereto; and it shall be signed and verified in the manner prescribed for the signing and verification of pleadings.
2. Section 4 of Dastoor‑‑--
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3. Section 12 of Dastoor.
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4. Section 4 of Ordinance, 1960.
"4. Repeal and re‑enactment of certain laws in force in certain Acceding States before their incorporation into West Pakistan. (1) Subject always to the provisions of subsection (2) of section 3, where the operation of any Central Act, or Ordinance has been extended by an amendment indicated in the Second Schedule to any area which, before the fourteenth day of October, 1955, formed part of the territories of an Acceding State, any law in force in that area before that date and corresponding to the provisions of such Act or Ordinance shall stand repealed, and shall be deemed to have been re‑enacted by such Act or Ordinance, as amended by this Ordinance, as if such law were a Central Act, and the provisions of the General Clauses Act, 1897 (X of 1897), shall apply accordingly.
"(2) Notwithstanding the provisions of subsection (1), anything done, action taken, right accrued, or liability, penalty, forfeiture or punishment incurred, under any such law as aforesaid during the period commencing on the fourteenth day of October, 1955, and ending with the commencement of this Ordinance, shall be deemed to have been validly done, taken, accrued or incurred, as the case may be, and the Central Act or Ordinance by which such law is deemed to have been re‑enacted shall, to that extent, be deemed not to have come into force during the said period in the area to which such law applied immediately before the commencement of this Ordinance."
Nowhere in the Order XXXIII(1) nor in section 12 any provision is made requiring moving of a separate application other than the plaint for suing as pauperis but that required is that a petition to sue in forma pauperis has to contain all that a plaint is required to have and annexed therewith a schedule of movable, immovable properties, assets and debts any and nothing beyond that., On that consensus view of the Courts has been that forma pauperis application is a. composite document consisting of an application to sue pauperis and a plaint. Our views get support from the case reported in A I R 1949 Mad. 162 wherein it has been held "An application under Order XXXIII (1) is a composite document consisting of plaint and an application for being excused from the payment of court‑fee."
11. Reverting to effect of Ordinance of 1960 on section 12 of Dastoor and Order XXXIII of Code it may be observed that the proposition has already been squarely dealt with in case P L D 1973 Quetta 43. In such event it would certainly be a futile effort on our part to elucidate the proposition which has already been settled by this Court and not disturbed by the Supreme Court in case reported in 1985 S C M R 16. Manifestly the proposition laid down in the abovesaid citation of Supreme Court and ratio enunciated in the abovesaid authority of Division Bench of this Court is on all fours with the proposition under discussion in the instant case before us. No material was placed before us as discussed hereinabove to depart from the well‑considered view already taken by the Supreme Court and Division Bench of this Court in the abovesaid citation, we, therefore, adhere to the same interpretation of the law and hold that the subject under section 12 of Dastoor and Order XXXIII of the Code being same; the former stood repealed and substituted by the latter. It may be further observed that though the Deputy Commissioner did not in fact follow the procedure laid down under Order XXXIII of the Code or that of Dastoor yet he took full precautions, held enquiry regarding pauperis of the respondent and admitted suit by exempting him from paying the court‑fee for the time being till disposal of the suit or otherwise before allowing the application forma pauperis. No doubt the State derives a revenue from court‑fee stamps from plaintiffs who approach the civil Courts. Under Court Fees Act they are bound to pay the court‑fee prescribed under it at the filing of the plaint but there may be persons for reason of their poverty unable to pay the court‑fee, for such deserving persons /provision under section 12 of Dastoor and Order XXXIII has been made exempting them from paying at the first instance the court‑fee and present their suits as forma pauperis.
12. Obviously the object of this order is to help the needy in getting justice from the Courts which otherwise on account of their poverty they could not avail of in absence of payment of the required court‑fee. The purpose of law is to help a deserving person in order to foster justice not to trap a deserving litigant on mere technicalities as laid down in cases:‑‑
(i) 1985 C L C 663.
(ii) I R 1932 Lah. 328.
13. Admittedly as seen earlier hereinabove that procedure laid down in the relevant laws had not been strictly followed by the Deputy Commissioner while admitting the forma pauperis suit. However, that only would no affect the decree in appeal. Once such permission had been granted and suit registered by the Deputy Commissioner its presentation remains intact for all purposes and intents. Unless the same had been legally reversed at the proper stage. Objection regarding its proprietary cannot be allowed to be raised for the first time at the appellate stage before the appellate Court by a person who in the suit was himself the defendant and had sufficient notice thereof to dispute it at that stage before the trial Court where the appellant seems to have waived the objection and acquiesced therein. In such case it cannot lie in mouth of the defendant in appeal to say that the suit was illegally admitted and that all subsequent proceedings taken thereof or order or decree based thereon had been passed illegally. The proposition has been fairly dilated‑in case of Siddique Khan and 2 others v. Abdul Shakur Khan and another P L D 1984 S C 289 wherein it has bee held:‑‑--
"This Court has also held though in a different context that the institution of the suit is by presentation of the plaint when it is accepted by the presiding officer "any defects notwithstanding". See Muhammad Siddique v . Zawar Hussain Abidi. To the similar effect namely that valid for limitation is not affected by deficient court‑fee, are Gavaranga Sahu v. Botokrishna Pat No.(2) and Hari Ram v. Akbar Hussain wherein it was held that the plaint is a plaint even if it is not properly stamped. See also Ramgopal Chunilal v. Ramsarup Baldevdas and others, George Benjamin Hampson v . Jeewanmall Bros. and Stuart Skineer alias Nawab Mirza v. William Orde and others.
It is also appropriate here to state the well‑accepted rule about Courts' attitude toward the collection of court‑fee as agent of State. It is to the effect that the Court Fee Act like the other fiscal statutes is to be construed strictly and in favour of the subject; and that it was passed with the object of securing, revenue for the benefit of the State and not to arm a litigant with a weapon of technicality to harass his opponent."
14. It may be observed that dispute regarding payment of court‑fee particularly in forma pauperis a matter between the Government and its Paupris subject though a defendant too under rule 6 of Order XXXIIII is one of the necessary party to be heard but if for some reasons, he is not called at the initial stage but in that case while taking defence of the suit if still defendant feels actually aggrieved against the order may avail the opportunity to move for dispaupering the suit under rule 9 of the Order. Failing to move such objection at the proper stage before the trial Court he cannot be allowed to challenge it for the first time before the appellate Court in appeal alongwith the judgment and decree. It may be pertinent to observe further that while challenging a decree in fact, it is not open to the appellate Court to entertain such plea that the plaint had not been legally allowed to sue as pauperis as the matter at such initial stage is one affecting the institution of the suit itself and not affecting any decision of the trial Court, that is why it has not been made appealable. To have not only proper appreciation but better understanding of the proposition it would be certainly useful to reproduce the relevant provisions of the Code dealing with the subject, which are sections:
Section 96.‑‑
"96. Appeal from original decree.‑‑(1) Save where otherwise expressly provided in the body of .this Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorised to hear appeals from the decisions of such Court.
(2) An appeal may lie from an original decree passed ex parte.
(3) No appeal shall lie from a decree passed by the Court with consent of parties. .
Section 104.‑ --
"104. Orders from which appeal lies.‑‑(1) An appeal shall lie from the following orders, and save as otherwise expressly provided in the body of this Code or by any law for the time being in force, from no other orders.
(1)**********************************
(2) (f) an order under section 35‑A;
(ff) an order under section 47;)
(g) an order under section 95;
(h) an order under any of the provision of this Code imposing a fine or directing the arrest or detention in the civil prison of any person except where such arrest or detention is in execution of a decree;
(i) any order made under rules from which an appeal is expressly allowed by rules:
(3)(Provided that no appeal shall lie against any order specified in clause (f) save on the ground that. no order, or an order for the payment of a less amount, ought to have been made).
(2) No appeal shall lie from any order passed in appeal under this section."
"Order XLIII, rule 1.‑‑
"43.1. Appeals from orders.‑‑An appeal shall lie from the following orders under the provisions of section 104, namely:‑
(a) an order under rule 10 of Order VII returning a plaint to be presented to the proper Court;
(b) an order under rule 10 of Order VIII pronouncing judgment against a party;
(c) an order under rule 9 of Order IX rejecting an application (in a case open to appeal) for an order to set aside the dismissal of a suit;
(d) an order under rule 13 of Order IX rejecting an application (in a case open to appeal) for an order to set aside a decree passed ex parte;
(e) an order under rule 4 of Order X pronouncing judgment against a party;
(f) an order under rule 21 of Order XI;
(g) an order under rule 10 of Order XVI for the attachment of property;
(h) an order under rule 20 of Order XVI pronouncing judgment against a party;
(i) an order under rule 34 of Order XXI on an objection to the draft of a document or of a endorsement;
(ii) an order under rule 62 or rule 103 of Order XXI relating to the right title or interest of the claimant or objector in attached property;)
(j) an order under rule 72 or rule 92 of Order XXI setting aside or refusing to set aside a sale;
(k) an order under rule 9 of Order XXII refusing to set aside the abatement or dismissal of a suit;
(1) an order under rule 10 of Order XXII giving or refusing to give leave;
(m) an order under rule 3 of Order XXIII recording or refusing to record an agreement, compromise or satisfaction;
(n) an order under rule 2 of Order XXV rejecting an application (in a case open to appeal) for an order to set aside the dismissal of a suit;
(o) an order 2 under rule 2, rule 4 or rule of Order XXXIV refusing to extend the time for the payment of mortgage‑money;
(p) orders in inter-pleader‑suits under rule 3, rule 4 or rule 6 of Order XXXV;
(q) an order under rule 2, rule 3 or rule 6 of Order XXXVIII;
(r) an order under rule 1, rule 2, rule 4 or rule 10 of Order XXXIX;
(s) an order under rule 1 or rule 4 of Order XL;
(t) an order of refusal under rule 19 of Order XLI to re‑admit, or under rule 21 of Order XLI to re‑hear, an appeal;
(u) an order under rule 23 of Order XLI remanding a case, where an appeal would lie from the decree of the Appellate Court;
(v) an order made by any Court other than a High Court refusing the grant of a certificate under rule 6 of Order XLV;
(w) an order under rule 4 of Order XLVII granting an application for review. "
15. Manifestly the order not being a 'Decree' is not appealable under section 96 of the Code. It too have not been made appealable under section 104 or Order XLIII, rule 1 of the Code. In the event we have no hesitation to hold that an order allowing forma pauperis, application is not appealable order under the Code. The first appeal filed the appellant before Majlis‑e‑Shoora challenging the order of the Deputy Commissioner admitting the plaint, hence was misconceived and not tenable.
16. In support of his second contention Mr. Tahir Muhammad Khan, the learned counsel for the appellant vehemently urged that in written statement the appellant had questioned the genuineness of the agreement and seriously contested the suit. After framing of the issue by the learned Kazi it was for the respondent to have lead evidence to prove his claim and there was no stage for the Court to have examined the appellant whose such statement recorded at premature stage by the Court had no legal value to be binding on him, which as such be ruled out of consideration for all purposes including taking it as his admission in respect of the claim of the respondent. The learned counsel further contended that even otherwise decree based on his so‑called admission cannot be said to be a consent decree so as not to be appealable under the Code.
17. On the other hand Mr. Iftakhar Muhammad, the learned counsel for the respondent vehemently repudiating his contention submitted that on face of it, it was a consent decree on all four hence not appealable under section 100 of the Code.
18. Nowhere it has been the case of the appellant that he was coerced to give such statement but on the contrary it appears that he put himself voluntarily in the witness‑box and admitted the claim of the respondent whereon decree was passed. Evidently he could not be allowed to challenge his own fault for his own benefit. His conduct and acquiescence would operate as estoppel against him. Having himself, chosen a peculiar mode of his choice before the trial Court, the appellant cannot in either way challenge its proprietary in appeal. This view has already been taken by Division Bench of this Court in Civil Petition No. 232/1983 and Civil Petition No. 10/1984.
19. It may be further observed that a decree can be passed in either ways by a Court:
(i) by deciding the dispute on merits.
(ii) with consent of the parties.
(iii) on admission of the parties.
There is no fourth mode of doing it. In no way it could be said that this decree has been passed on merits as no evidence was led before the trial Court. On admission of the appellant the Court passed the decree which is evident from the order and the decree of the Court itself. It may be pertinent to observe that a consent decree is always passed with agreement of the parties. Admission of the claim by itself cannot be deemed to be a consent decree, which is evident from the working of Order XII, rule 6, C.P.C. itself; which .reads as under:‑
"6. Judgment on admissions.‑‑Any party may, at any stage of a suit, where admissions of fact have been made, either on the pleadings, or otherwise, apply to the Court for such judgment or order as upon such admissions he may be entitled to, without waiting for the determination of any other question between the parties: and the Court may upon such application make such order, or give such judgment, as the Court may think just." On such view of the facts, the decree undisputedly is not a consent decree, so as be barred under subsection (3) of section 96 of the Code.
20. To support his last contention Mr. Tahir Muhammad Khan at the first instance drew our attention to the wording of section 100 of the Code whereby tried to convince us to make out a case that every decree or order including appeal dismissed for default passed by the first appellate Court is appealable under this section before the second appellate Court. In addition thereto the counsel reiterated that though the first appellate Court dismissed the appeal in default yet the decree of the trial Court merged in its decree particularly when the decree of the first appellate Court indicates so.
21. In reply the learned counsel for the respondent submitted that having the appeal been dismissed in default, the remedy available to the appellant before the appellate Court was to file application for restoration of the appeal under rule 19 of Order XLI but not appeal under section 100 of the Code.
22. To dilate upon the contention of the learned counsel it would be pertinent to examine rules 17 and 19 of Order XLI, which for sake of convenience are reproduced as under:‑‑
17.(1)Dismissal of appeal for appellant's default.‑‑Where on the day fixed, or on any other day to which the hearing may be adjourned, the appellant does not appear when the appeal is called on for hearing, the Court may make an order that the appeal be dismissed.
(2) Hearing appeal ex parte‑‑Where the appellant appears and the respondent does not appear, the appeal shall be heard ex parte."
"19. Re‑admission of appeal dismissed for default.‑‑Where an appeal is dismissed under rule 11, sub rule (2) or rule 17 or rule 18, the appellant may apply to the appellate Court for the re‑admission of , the appeal; and where it is proved that he was prevented by any sufficient cause from appearing when the appeal was called on for hearing or from depositing the sum so required, the Court shall re‑admit the appeal on such terms as to costs or otherwise as it thinks fit."
By using word 'may in rule 17 discretion has been given to the Court to dismiss the appeal when appellant on the date of hearing of the appeal remains absent or its discretion, the Court may adjourn the appeal for some other date. Nowhere from the wording of the rule it indicates that appeal can be decided on merits. Even if in such case the Court dismisses the appeal on merits, its disposal shall be treated to be a dismissal in default but not on merits.
23. In any case, when appeal is dismissed in default the order cannot be deemed to be a decree. The decree of the trial Court will not merge in the order passed by the appellate Court. The original decree shall remain intact in its own field.
24. Additionally to have proper meaning of the word 'Decree' we shall fall on its definition given in section 2(2) of the Code. It would be more useful to reproduce it here. It reads as under:‑---
"2(2)"Decree" means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of plaint (the determination of any question within section 144, and an order under rules 60,98,99,101 or 103 of Order XXI) but shall not include:‑
(a) any adjudication from which an appeal lies as an appeal from an order, or
(b) any order of dismissal for default."
It may be pertinent to observe that an order dismissing appeal for default has been excluded from definition of word 'decree' nor it falls ; in any other part of its definition.
25. Our views get support from the cases reported in:
"(i) A. I R 1962 Pu. 82 which reads as under:‑ .
Under the provision of Order XLI, rule 17, a Judge is not entitled to dismiss an appeal on merits if the appellant is not present on the date of the hearing. An appeal can be dismissed on merits only under rule 30 of Order XLI, after hearing both the parties.
Under the rule the appellate Court has a discretion to dismiss the appeal in default or to adjourn it to some future date. But it is not authorised to dismiss the same on merits in the absence of the appellant. A I R 1921 Pat. 325 and A I R 1938 All. 548, Dissented from A I R 1923 Mad. 13 and A I R 1925 Rang. 96 and A I R 1929 Cal. 475 and A I R 1929 Rang. 11(2) and A I R 1953 Assam 191 and ILR (1953) 3 Raj. 578 Ref. (Para. 10).
Where instead of dismissing the appeal for default the appellate Court dismisses it on merits, the order dismissing the appeal on merits in the absence of the appellant would be treated as an order of dismissal for default; such an order cannot come within the definition of the word 'decree' as given in S. 2(2). Therefore, no appeal lies from such an order and the only remedy of the aggrieved party is to move an application under 0. XLI, r. 19, A I R 1924 All. 144, relied on:"
(ii) P L D 1976 Kar. 268 which reads as under:‑
7. There is yet another aspect of the matter that is that, the language of Order XLI, rule 17, C.P.C. which is a specific provision dealing with the procedure in case of non‑appearance of the appellant, empowers the Court to dismiss the appeal. On the other hand, if the contrary view, as mentioned above is accepted and it is held that the Court would be competent to consider the merits of the appeal, it would follow that in such a situation the Court would further be competent to decide the appeal, despite the absence of the appellant in his favour. The consequence could be that the appellate Court may accept the appeal. But the plain language of the rule does not make a provision for such a judgment, the only power being to dismiss the appeal.
8. For all these reasons I am very clearly of the opinion that the absence of the appellant at the time of hearing does not empower the appellate Court under rule 17, Order XLI, C.P.C. to dismiss the appeal on merits."
(iii) P L D 1976 Kar. 268 which reads as under:‑---
O. XLI, r. 17 read with rr. 11,19,21 & 30.‑‑Appeal‑Default of appearance. Dismissal on merits. Absence of appellant at time of hearing of appeal. Does not empower appellate Court to dismiss appeal on merits."
26. Obviously the order not being a decree is not appealable either under section 94 or Order XLIII, rule 1 or section 100 of the Code; the only remedy against such order is to approach the appellate Court for its restoration.
27. For the foregoing reasons we see no merits in the appeal which as such stands dismissed but in peculiar circumstances of the case the appellant shall bear the costs of the proceedings throughout.
A . A . Appeal dismissed.
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