1986 CLC 2044 (PLP)

2. Facts giving rise to these civil revisions are that the respondents Messrs Habib Sugar Mills Limited, filed two suits against the petitioners, Managing Director, Punjab Industrial Development Board and another. During the pendency of the suits, two applications under sections 21 and 34 of the Arbitration Act 1940, were filed in each suit. Orders passed on the said application by the Civil Judge, who was seized of the suits were challenged by the petitioners by taking appeals to an Additional District Judge. Appeals were, however, dismissed in limine by the learned Additional District Judge on the ground that the appellants (petitioners) did not issue notices under Order XLIII, rule 3 of the Code of Civil Procedure, before filing appeals. Feeling aggrieved by the orders of learned Additional District Judge, the petitioners have come up in revision to this Court.

3. It was contended by learned counsel for the petitioners that since the appeals were filed by the petitioner under section 39 of the Arbitration Ash alit 11ut ~4~of rule 3 of order KLIII of the said Code had nothing to do with their appeals. In this connection, reliance was placed by him on the opening line of section 41 of the Arbitration Act which reads as follows:- "Section

41. Procedure and power of Court.-- Subject to the provisions of this Act and of rules made thereunder:- (a) the provisions of the Code of Civil Procedure, 1908, shall apply to all proceedings before the Court, and to all appeals, under this Act, and (b) the Court shall have, for the purpose of, and in relation to arbitration proceedings, the same power of making orders in respect of any of the matters set out in the Second Schedule as it has for the purpose of and in relation to, any proceedings before the Court: Provided that nothing in clause W shall be taken to prejudice any power which may be vested in an arbitrator or empire for making orders with respect to any such matters."

4. Section 39 of the Arbitration Act gives right of appeal but does not lay down procedure for presentation hearing and disposal of appeals filed thereunder. This procedure has not been spelt out anywhere else also, in the said Act. It has, however, been provided in section 41 of the said Act that procedure regarding appeals filed under section 39 of the said Act shall, subject to the provisions of the said Act and the rules made thereunder, be the same as given in the Code of Civil Procedure for appeals filed under the said Code. This means that in view of section 41 of the said Act, provisions of the Code of Civil Procedure relating to appeals shall apply to appeals under section 39 of the said Act except to the extent of conflict, if any, between provisions of the said Code and those of the said Act or the rules framed thereounder. Learned counsel did not point out any such conflict in regard to procedure for presentation of appeals. Rule 3 of Order XLIII of the Code of Civil Procedure will, therefore, be fully attracted to appeals filed under section 39 of the said Act. In this view of the matter, I am unable to agree with the learned counsel that rule 3 of Order XLIII of the said Code has nothing to do with the appealsi preferred by the petitioner.

5. It was also urged by the learned counsel for the petitioners that provisions of rule 3 of Order XLIII are directory in nature and as such petitioners' appeals could not be dismissed for the simple reason that notices thereof were not issued by the appellants (petitioners) to the respondents before filing the appeals. It was held by the Supreme Court in the case of Mrs. Dino Manekhi Chinoy and others v. Muhammad Matin P L D 1983 S C 693 "that issuance of the notice to the respondent before presentation of an appeal preferred against an order passed during the pendency of the suit is obligatory and no appeal can be entertained without issuance of the requisite notice. It was thus ruled by the Supreme Court that the provisions of rule 3 of Order XLIII are mandatory. Learned counsel is, therefore, not correct in saying that they are directory in nature.

6. No other point was agitated by the learned counsel.

7. Resultantly, both the aforementioned civil revisions fail They are, accordingly, dismissed in limine. S. A. Revisions dismissed in limine,