1997SCMR414 (PLP)

Laws Cited

Representation

• ‑‑‑‑O.XLIII, R. 3‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Dismissal of appeal by High Court for non‑compliance of provision of O.XLIII, R.3, C.P.C.‑‑‑Order‑sheet of High Court showed that respondents were represented by counsel before appeal was admitted for full hearing‑‑‑Counsel for respondents admitted such factual position and he did not oppose acceptance of petition for leave to appeal and sending case back to High Court for decision on merits in accordance with law‑‑‑Respondents being duly represented before High Court before admission of appeal, object of serving notice on respondents under O.XLIII, R.3, C.P.C. before filing of appeal was fully met and, therefore, appellant could not have been non‑suited in appeal on such ground‑‑‑Petition for leave to appeal was converted into appeal in circumstances and case was remanded to High Court for decision of appeal on merits in accordance with law.
• Abdul Aziz Kundi, Advocate Supreme Court for Petitioner. Respondent No. l in person. Ch. Akhtar Ali, Advocate‑on‑Record for Respondents Nos.2 to 6.
• Date of hearing: 24th January, 1996.
• The grant of leave is opposed in the case by the caveator and we have heard the learned counsel for the petitioner as well as caveator at length. The learned counsel for the petitioner has pointed out that although it was not mentioned in the memo. of appeal filed before the High Court that a notice as required under Order 43, Rule 3, C.P.C. has been served on the respondents in the matter but it is admitted position on record that the learned counsel for respondents had been appearing before the learned Division Bench after filing of the appeal. The learned counsel has invited our intention to the order‑sheet dated 10‑4‑1995 and 26‑4‑1995 which show that Mr. Nisar Ahmed, Advocate, appeared in the appeal before the learned Judges of the Division Bench on behalf of respondents Nos. l and 2 in the case. The appeal was admitted for full hearing on 29‑5‑1995 and before that date appearance was put in on behalf of respondents in the case' before the learned Division Bench. In these circumstances, it is contended by the learned counsel for the petitioner that the object of serving notice under Order 43, Rule 3, C.P.C. was fully served and achieved. The learned counsel for respondents concedes that respondents Nos. l and 2 were represented in the appeal filed by the petitioner before the learned Division Bench which was admitted to regular hearing by the Court. In these circumstances, the learned counsel for the respondents does not oppose acceptance of this petition and sending the case back to the High Court for decision on merits in accordance with the law. We are, otherwise, satisfied that as the respondents were duly represented before the learned Judges of the Division Bench before admission of the appeal, the object of serving a notice on the respondents under Order 43, Rule 3, C.P.C. before filing of the appeal was fully met in the case and, therefore, the appellant could not be non‑suited in the appeal on this ground. We, accordingly, convert this petition into appeal, accept the same and set aside the impugned judgment. The case is sent back to the learned Judges of Division Bench of Peshawar High Court for decision of the appeal on merits in accordance with the law. Both the learned counsel pray that the appeal may be directed to be disposed at an early date as the litigation between the parties is going on for quite some time. We hope that the learned Judges of. Division Bench of Peshawar High Court will make every effort to dispose of this appeal as expeditiously as possible. There will, however, be no order as to costs in the circumstances of the case.

Headnotes / Summary

Judgment & Decree