1. This petition is filed by the appellant under rule 12 of the Procedure Rules, for restoration of the appeal, which was dismissed on March 12, 1999.
2. The appeal came up for hearing on February 2, 1999, and was adjourned to February 22, 1999, as no one appeared for the appellant.
The Registry received a letter dated February 13, 1999, from counsel for the appellant, Shri J. Feroze Khan, stating that neither the appellant nor himself is in a position to appear on that date and requested that the memorandum of grounds of appeal and the affidavit may be treated as arguments and that the appeal may be considered on merits and leniency may be shown and justice rendered.
3. In the light of the specific stand taken by counsel for the appellant by his letter dated February 13, 1999, that the appeal may be disposed of on merits while considering the grounds of appeal and affidavit as his arguments, the Tribunal went through the records and the grounds of appeal and disposed of the appeal on merits on March 12, 1999.
4. Learned counsel for the appellant, Pavan Chaudhry, who was subsequently engaged for the appellant, contended that the appellant could not give proper instructions to his then counsel who made the request contained in the letter dated February 13, 1999, without consulting the appellant, and hence the order dated March 12, 1999, may be set aside and the appeal be re-heard. He further submitted that the appellant has now filed additional evidence together with a petition in M.P. No. 102/MDS of 1999 for receiving additional evidence.
5. At the outset, it has to be observed that the order dated March 12, 1999, is not an ex-parte order but was an order on the merits, based on the memorandum of grounds of appeal and the records as requested by learned counsel for the appellant. We have treated the grounds of appeal as the written arguments of counsel, taking into consideration the letter dated February 13, 1999.
6. Rule 12 of the Appellate Tribunal for Forfeited Property (Procedure) Rules, 1986, under which the petition has been filed is not applicable, as it deals with the effect of death, insolvency, etc., on appeal.
Perhaps, the appellant wanted to invoke rule 11 which deals with dismissal of appeal for the appellant's default. Rule 11 is as follows : "Where on the day fixed for hearing 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 Tribunal may either dismiss the appeal for default or proceed ex parte : Provided that where the appeal has been dismissed for default or proceeded with ex parte and the appellant appears thereafter and satisfies the Tribunal that there was sufficient cause for his non-appearance when the appeal was called on for hearing, the Tribunal shall, after giving notice to the respondent, make an order setting aside the dismissal order or the ex parte proceedings and restoring the appeal to its original number." 7. The proviso to rule 11 makes it clear that the said provision is applicable only when the appeal has been dismissed for default or proceeded with ex parte and not when the appeal is dismissed on merits.
The Tribunal did not dismiss the appeal for default and did not set the appellant ex parte. It was at the request of counsel to consider the appeal on merits, based on the grounds of appeal, that the Tribunal decided the appeal on the merits. Counsel was competent either to submit his arguments in person or request the Tribunal to dispose of the appeal after considering the grounds of appeal as his arguments. We are, therefore, of the view that rule 11 is not applicable and the order being an order on the merits, cannot be set aside.
For all the aforesaid reasons the petition is dismissed that consequently M.P.A. No. 102/MDS of 1999 also stands rejected.