1986 PLP 1644 (MLD)

S. Mukhtar Hussain Naqvi for Respondents. Date of hearing: 18th May, 1986. MUHAMMAD ZAHOORUL HAQ, J:‑ This appeal is directed against the order passed by the Hon'ble Single Judge on 26‑10‑1982 appointing Receiver in respect of the property constructed by the appellant. 2. The other side was served in February, 1986 and we had hear this matter partly on 12‑3‑1986 in the absence of the respondent No.1' counsel. The respondent No.1 moved this application on 25‑3‑1986, Reliance has been placed upon P ‑L D 1983 S C 693 where it was observed that the provisions of Order XLIII, rule 3, C.P.C. are obligatory and their purpose is to avoid delay in the hearing of the appeals against interlocutory orders. Mr.. Abdul Rashid Mirza had also relied upon the same Supreme Court authority but he relied upon portion where it has been observed that in the cited case since the High Court had itself issued pre‑admission notice to the respondent, therefore, the Supreme Court thought that the substance of the provisions of Order XLIII, rule 3, C.P.C. had been complied with and hence the ends of justice should not be defeated at the altar o procedure. 3. However, in this case, the admitted position is that there was not pre‑admission notice issued by this Court for this appeal to the respondent No.1. It is further admitted position that the respondent No.1 was never served with any notice by the appellant under order XLIII, rule 3, C.P.C. 4. The most important factor in this case is that the impugned order by the Hon'ble Single Judge was passed on 26‑10‑1982 and the appellant went on pursuing this appeal he had filed on 16‑11‑1982 without any notice to the respondent No.1. 5. For some reason or the other the respondent No. l was not served till February, 1986. The lack of notice to respondent No.1 under order XLIII, rule 3, C.P.C. has, therefore, resulted in the actual service of the notice by this Court in this appeal to the respondent after 31 years of the filing of the appeal. The very purpose of Order XLIII, rule 3, C.P.C. has, therefore, been defeated. 6. We may note that Mr. Abdul Rashid had argued that it was a belated application filed after the hearing of arguments. This objection is hardly justified in view of the fact that the respondent No.1 was served in February, 1986 and he made this application in March, 1986. The arguments that had been heard by us partly were without the assistance of .the counsel for respondent and, therefore, the respondent can hardly be blamed for that partial hearing. 7. In these circumstances, we have no option but to dismiss this appeal as being incompetent. H.B.T. ‑‑‑‑‑ Appeal dismissed.