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Petitioner: FAKHRA SULEMAN BEGUM VS Respondent: MUHAMMAD SULEMAN KHAN
1988 C L C 499
1988 C L C 499
[Lahore]
Before Muhammad Ilyas and
Muhammad Afzal Lone, JJ
Syeda FAKHRA SULEMAN BEGUM‑‑Petitioner
versus
Maj. MUHAMMAD SULEMAN KHAN‑‑Respondent
Revision Application No. 33/C of 1980, decided on 1st November,1980.
Civil Procedure Code (V of 1908)‑‑
‑‑‑S. 114 & 0. XLI, R. 22‑‑Filing of cross‑objections in appeal‑‑Review petition‑‑Cross‑objections in appeal were to be filed by petitioner within one month from date of service on him‑‑There being nothing on record to show that petitioner was served with any such notice, High Court accepted review petition against earlier order whereby cross‑objections of petitioner had been dismissed on ground that same were not filed within time.
Ch. A. Waheed Saleem for Petitioner.
Jahangir A. Jhuja for Respondent.
Date of hearing: 1st November, 1980.
JUDGMENT
MUHAMMAD AFZAL LONE, J.‑‑By order, dated 21‑5‑1980, the cross‑objections filed by the petitioner were dismissed by us on the ground that he was served on 7‑6‑1975, and the objections not having
been filed within one month from the date of service of notice, were barred by time.
2. The order is sought to be reviewed through the instant application, ‑ on the plea that 7‑6‑1975, was only Farzi Peshi; the period of limitation was to commence from the date of service of notice of the day fixed for hearing the appeal, but no such notice was given to him. In the submission of the learned counsel, since the appeal was enlisted for hearing for the first time on 10‑6‑1978, at the most the period of limitation would commence from that date.
3. We have heard the learned counsel for the parties and examined the record with their assistance. The learned counsel for the petitioner is not wrong in contending that t le notice sent to him for 7‑6‑1975, was only in respect of Farzi Peshi and not for the date of hearing the appeal, while hearing the C.M. No. 437‑C of 1975 and C.M, No. 1908‑C of 1979, this fact was not brought to our notice by either of the learned counsel for the parties. Under Order XLI, Rule 22, C.P.C. the cross‑objections were to be filed within one month from the date of service on the petitioner of the notice of the date of hearing the appeal. There is, however, nothing on the record to show that the petitioner was served with any such notice. Under the circumstances of the case we feel that there are sufficient grounds to recall the order, dated 21‑5‑1980.
This review petition is, therefore, accepted and the impugned order recalled. The cross‑objections shall be treated to have been filed within time and set down for hearing. The parties are left to bear their own costs.
H . B . T . /F‑51 / L Petition accepted.