P L D 1989 Lahore 255 (PLP)

The question which arises for determination in this petition under section 115, C.P.C. is, as to whether notice under Order 43, rule 3, C.P.C. is required to be served upon a respondent in an appeal against an interlocutory order, who was proceeded against ex parte by the Trial Court.

2. The circumstances in which this question has arisen are that on 24th of August, 1987 a suit for cancellation of certain documents and for a permanent injunction was filed by the petitioners against the respondents. Alongwith this suit, an application under Order 39, rules 1 & 2 and section 151, C.P.C. was also filed in which it was prayed that the respondents be restrained during the pendency of the suit from alienating the suit property or changing its nature or character. During the course of trial defendants Nos.2 and 6 to 10 were proceeded against ex parte on 9th of February, 1988. The application for temporary injunction filed by the petitioners was rejected by the Trial Court on 29-2-1988. 3. - On 21st of March, 1988 the petitioners filed an appeal in the District Court against the order of the trial Court refusing temporary injunction. Out of the eleven respondents impleaded in the appeal, notices in terms of Order 43, rule 3, C . P . C . were sent only to respondents Nos. 1,3, 5 and 11 but not to the other respondents. During the course of hearing of the appeal, an objection was raised that the petitioners had failed to comply with the provisions of Order 43 rule 3, C.P.C. by not serving notices nn the other respondents and the appeal was as such incompetent. This objection prevailed with the learned Additional District Judge, Lahore who dismissed the appeal of the petitioners on this ground on 23rd of April, 1988. This order has been challenged in the present revision petition.

4. Dr. A. Basit, Advocate, learned counsel appearing for the petitioners has contended that Order 43 rule 3, C .P. C . contemplates service of notices only on those respondents who had appeared and contested the matter before the trial Court and no notice need be issued to the persons who were proceeded against ex parte on account of their absence, by the trial Court. The learned counsel in this respect has laid great emphasis on the fact that this provision allows the service of notice on the Advocate and as such it applies to those persons who were contesting the case before the trial Court, as the question of any Advocate appearing on behalf of a person proceeded against ex parte does not arise. Mr. S.M. Masood, Advocate, learned counsel appearing for respondents Nos. 1 and 11, on the other hand, has submitted that Order 43, rule 3, C.P.C. makes no distinction between a respondent who had been contesting the, matter before the trial Court and a respondent who was proceeded against ex parte.

5. The provisions of Order 43, rule 3, C.P.C. as held by the Supreme Court in Mrs. Dino Manekji Chinoy and 8 others v. Muhammad Matin PLD 1983 SC 693 are mandatory in character and the observance thereof, is a condition precedent to the filing of the appeal which would otherwise be incompetent and liable to dismissal. Order 43 rule 3, C.P.C. on its plain reading does not make any distinction between a respondent who had appeared and contested the suit and the one who was proceeded against ex parte by the trial Court in the suit. The provisions require the service on the respondent in the appeal, without making any exception in case of ex parte defendant. It is, therefore, difficult for me to accept the contention of the learned counsel for the petitioner, that only those respondents who had contested the suit before the trial Court need be served with the requisite notice. The effect of ex parte proceedings as against a defendant was considered by this Court in Habib Ismail Bajwa v. Khawaja Ghulam Mohy-ud-Din P L D 1970 Lah. 428 wherein it was observed by Karam Elahi Chauhan, J. (as he then was) that a defendant who was proceeded against ex parte under Order 9 rule 6, C.P.C. was not dead for the purpose of the suit. Similarly in Krishan Lal Malhotra v. Madan Lal and others P L D 1950 Lah. 82 it was pointed out that such a defendant does not become an outlaw.

6. This question was also examined by this Court in two cases namely Azmat Begum and others v. Chief Settlement and Rehabilitation Commissioner, Pakistan and others P L D 1962 Lah. 1041 and Azizullah Khan and 4 others v. Arshad Hussain and 2 others P L D 1975 Lah. 879 in the context of entitlement of an ex parte defendant to receive notice after the transfer of the suit from the transferee Court. Section 24-A of the C.P.C. as also paragraph 6 of Volume I Chapter 13 of Lahore High Court Rules and Orders provide that the transferee Court shall serve a notice upon the parties to the suit. In the two precedent cases referred to above, the word "parties" was interpreted to include a defendant who has been proceeded against ex parte. Despite being proceeded against ex parte a defendant remains for all practical purposes a party to the proceedings; his name remains on the record of the case and he is entitled as of right to appear before the Court and join proceedings at any time. There can be no dispute with the proposition that defendant who was proceeded against ex parte has a right to file an appea against any order or decision of the trial Court passed in a suit and is similarly entitled as of right to defend an appeal which may be; filed against him arising out of the same. The ex parte proceedings taken by the trial Court against such a defendant do not enure for the appellate proceedings. For this reason also it is difficult for me to accept the contention of the learned counsel for the petitioners.

7. It is important to note that the Code of Civil Procedure itself visualises situations where it is not necessary to serve a notice on e person who had chosen not to contest the proceedings before the lower Court. Reference in this connection may be made to Order 41 rule 14, C.P.C. to which sub-rule 3 was added by the Lahore High Court on 24th of November, 1943 and also similar amendments made by the other High Courts. Sub-rule (1) of this provision requires the appellate Court to serve the notice in the appeal on the respondent or his Pleader. Sub-rule (3), however, gives the discretion to the appellate Court to dispense with the service of such a notice on any respondent who did not appear before the Court whose decree is complained of. There is, however, no such exception made in Order 43 rule 3 of the C.P.C. I am, therefore, unable to agree with the learned counsel and give a restricted meaning to the expression "respondent" as used in Order 43 rule 3, C.P. C. so as to confine its applicability to those persons who had contested the proceedings before the trial Court. Such an artificial constraint cannot be imposed while interpreting this rule which has been held to be salutary in Mrs. Dino Manekp Chinoy and 8 others v. Muhammad Matin PLD 1983 SC 693.

8. I am not impressed by the contention of the learned counsel that as Order 43, rule 3, C.P.C. permits the service of a notice on the Advocate of a party, it contemplates giving of such a notice only to those who had contested the proceedings. It will be seen that this provision does not require mandatorily that the notice must be served on the Advocate alone but also permits the service on a party. Order 43 rule 3, C.P.C. speaks of service on the respondent or his counsel. The word or has been used disjunctively and is destructive of this submission o` the learned counsel. The other flaw in this D argument is, that if a person chooses to contest the proceedings personally and does not engage an Advocate, can it still be contended that a notice to such a person is also not necessary. The answer to this question has to. be in the negative.

9. It is not denied by the learned counsel for the petitioners that the respondents to whom no notices were issued were necessary parties to the appeal. From the perusal of the plaint, it appears that respondents Nos. 6 to 11 were impleaded as being purchasers of the property in dispute from respondent No.l before filing of the suit. These alienations were being challenged by the petitioners in the F suit. In the application under Order 39, Rules 1 and 2, C.P. C. , temporary injunction was also sought in respect of these properties. It is, therefore, obvious that they were necessary parties to the appeal and had a right to be heard. In this view of the matter, I do not find any force in this revision petition. It is dismissed with no order as to costs. A . A . /A-558/L Revision dismissed.