P L D 1988 Quetta 9 (PLP)

This petition is directed against order dated 15‑7‑1987 passed by learned District Judge, Quetta.

2. Facts leading to this petition are very brief and simple. On 25‑5‑1987 respondents filed a suit for declaration and permanent injunction for restraining petitioners from excavating well or carry out boring within specified customer distance. Alongwith main suit, an application under Order XLIII, Rules 1 and 2, C.P.C. for interim injunction was also filed. Petitioners submitted detailed reply to said application on 13‑6‑1987, challenging maintainability as well as locus standi of respondents to institute the suit. Request for interim injunction was vehemently opposed on legal and factual ground. It seems that interim injunction was granted by learned Civil Judge, Quetta on 26‑5‑1987 which was ultimately confirmed vide order dated 4‑7‑1987. Petitioners feeling dissatisfied preferred an appeal under Order XXXIX Rule 1, C.P.C. before the District Judge, Quetta on 13‑7‑1987 which was not entertained by means of order dated 15‑7‑198?, reproduced below:‑ "This appeal has been presented against the order, dated 4‑7‑1987 passed by the learned Civil Judge‑I, Quetta by which the application filed under Order XXXIX, Rules 1 & 2, C.P.C. by the respondent /plaintiff has been accepted. The appeal is not accompanied by the acknowledgement receipt and an affidavit as required under the provisions of Order XLIII, Rule 3, C.P.C. The said rule reads as under:‑ 'Where an appeal against an order is preferred during the pendency of the suit, the appellant shall, before presenting the appeal, sent notice of such appeal to the respondent or advocate by delivering a copy of memorandum and grounds of appeal alongwith a copy of the order appealed against and obtain an acknowledgement of receipt thereof for‑the information of the appellate Court.' An appeal which is not accompanied by such an affidavit and copy of acknowledgement receipt is not entertainable. Reliance is placed on the authority reported in P L D 1983 SC

693. For the reasons given above the appeal is not entertainable." Present petition was filed on 16‑7‑1987 challenging aforesaid order.

3. Mr. Tahir Muhammad Khan, learned counsel for petitioner vehemently urged that impugned order is illegal, because notices were despatched through registered post therefore formalities contemplated by law should be deemed to have been complied with, therefore, according to him dismissal of appeal merely on technicalities was not warranted. He emphasised that primary object of introducing Order XLII I, Rule 3, C . P. C . , was to ensure expeditious disposal of controversy in respect of interim order when main suit is still pending: To supplement his arguments reliance has been placed on the observations of following reported judgments:‑ (i) Abdul Ghani v . Settlement and Rehabilitation Commissioner and others (1984 C L C 901 at page 903). (ii) Messrs Haji Suleman Gowawala & Sons Ltd. v. Usman and 13 others (1985 C L C 168 at page 176). It is pleaded that attempt was made to deliver notice for filing appeal to counsel for respondent who declined to receive the same which according to him was proper compliance.

4. Where Mr.Ehsanul Haq, learned counsel for respondents strenously argued that requirements contained in Order XLIII, Rule 3, C.P.C. are mandatory in nature, therefore, petitioners were bound to give notice to respondents alongwith memo of appeal in the specified manner. He has relied on the observations of following reported judgment. (i) Mrs.Dino Manekji Chinoy and others v. Muhammad Matin (P L D 1983 S C 693), (ii) Muhammad Siddique and 6 others v. Boota (P L D 1985 Lahore 243), (iii) Managing Director Punjab Industrial Development Board and another v . Messrs Habib Sugar Mills Ltd. (1986 C L C 2044) and (iv) Ghulam Rasul v. Mst. Fatima (1987 C L C 1177).

5. Learned counsel has refuted attempt about service notice of appeal on the counsel for respondent. On the contrary it is argued that said plea was raised for the first time in memo of Revision which therefore is not entertainable.

6. I have carefully examined arguments advanced by learned counsel for parties. In the instant case petitioners had filed appeal under Order XLIII, Rule 1, C.P.C. before District Judge, Quetta on 13‑7‑1987. It is case of petitioners that requisite notices were despatched to respondents through registered post on or about 12‑7‑1987 prior to institution of said appeal. Admittedly acknowledge ment of notices was not available till then. Evidently on the date when the appeal was filed or it came up for hearing before appellate Court on 15‑7‑1987 neither respondents were present nor acknowledgement about service of notices had been received. Therefore, question arises whether in the given circumstances appeal was entertainable or not. Provisions of Rules 3 and 4 of Order XLIII, C.P.C. have been introduced through Ordinance of 1980. It appears that legislature intended to adopt ways and means for securing expeditious disposal of appeals, particularly instituted during the pendency of main suit in respect of interlocutory orders. Rule 3 of Order XLIII, C.P.C. however expressly requires delivery of memorandum of appeal and impugned orders to the opposite side besides acknowledgement of its receipt, for the information of appellate Court; as a condition precedent for presentation of appeal. The requirement of prior intimation is analogous to caveate system. In this procedure, opposite party gets prior intimation about intended filing of appeal, enabling it to appear as of right for effective defence even at the preliminary stage. Evidently without complying with required formalities appeal would not be deemed to have been validly presented. Learned counsel for petitioner attempted to argue that aforementioned provision of law are merely directory. But I am afraid there is no substance in the said contention. Principle of law in this behalf has been elaborately enunciated in case Mrs. Dino Manekji Chinoy and others v. Muhammad Matain PLD 1983 S C

693. It is profitable to reproduce below relevant observations: ‑ "

15. Coming now to the nature of the provisions of the newly inserted rule 3 of Order XLIII C . P.C . we observe that sub‑rule (1) of rule 3 requires that the party preferring an appeal against any order made during the pendency of the suit must give notice of such appeal to the respondent or his Advocate before presenting the appeal by delivering a copy of the memorandum and grounds of appeal alongwith a copy of the order appealed against. In order to satisfy the appellate Court that this has been done, he should obtain an acknowledgement receipt to the effect that a copy of the grounds of appeal alongwith the other documents has, indeed, been received by the respondent or his Advocate. 16 The purpose of this provision obviously is to avoid the delay that is occasioned in issuance of notices to and having service effected on the respondent in a case where the main suit is still pending adjudication and only the legality or correctness of some interlocutory order is under question. Hence intimation to the respondent of the fact that an appeal is being preferred and on the grounds on which this is being done, to avoid taking him by any surprise, has been prescribed as a condition precedent to the entertainability of the appeal.

17. Sub‑rule (2) of rule 3 provides that on receipt of the notice referred to in sub‑rule (1), the respondent may, with the permission of the Court, appear before it and contest the appeal with a view to getting it dismissed in limini, in case he succeeds in doing so he may even be awarded costs.

18. The above provision highlights the fundamental importance of issuance of the notice to the respondent by the appellant before presentation of the appeal. Not only does he become aware of the fact that an interlocutory order issued in his favour has been challenged by an appeal but a right has been conferred on him to contest the appeal at the limini stage with the permission of the Court, with a view to getting the appeal dismissed at that very stage and, thus, bring to a close the litigation directed against an order passed pendente lite favourable to him. This would not be possible unless notice before presentation of the appeal was given to the respondent, the said valuable right conferred upon him would be lost and resultantly the provisions of sub‑rule (2) of rule 3 would be rendered futile and nugatory. Hence we think that issuance of a notice to the respondent before presentation of an appeal preferred against an order passed during the pendency of a suit is obligatory and no appeal can be entertained without issuance of the requisite notice. It would, therefore, be entirely appropriate, with a view to ensuring that the provisions of this beneficial rule are given effect to in letter and spirit that the officers responsible for inter alia receiving and scrutinising appeals preferred against the interlocutory orders made during the pendency of a suit of all the Courts concerned, do require the appellant or his Advocate to submit, alongwith the other document required for filing an appeal, an affidavit that he has given notice of such appeal to the respondent or his Advocate by delivering him a copy of the memorandum and grounds of appeal alongwith a copy of the order appealed against and shall also attach with the said affidavit a copy of the acknowledgement receipt obtained from the respondent or his Advocate, as the case may be. Any appeal, which is not accompanied by such an affidavit and a copy of the acknowledgement receipt should not be entertained.

19. In the instant case we observe that the learned Division Bench had issued a pre‑admission notice to Advocate of the respondent (the petitioners herein) and their Advocate Mr. Akhtar Mahmood was present on pre‑admission notice. Thus, he could contest the admission of the appeal and seek its dismissal in limini. No grievance, furthermore, was made by him to the effect that any document to which reference was being made during the hearing of the appeal had not been supplied to him or that he was otherwise taken by surprise. Thus, in this case all the objects for which rule 3 was inserted in Order XLIII of the C.P.C. were satisfied in substance. Since the proper place of procedure is to help and not to thwart the obtaining of justice and procedural laws, as pointed out by Mr. Sharifuddin Pirzada, should be utilised as "stepping stones" rather than we might add, as stumbling blocks; the right of a party in this case to have his appeal heard, cannot be allowed to be defeated for failure to comply with the form where the substance has, in fact, been complied with. See Imtiaz Ahmad v. Ghulam Ali and others P L D 1963 S C 382 and Manager, J & K State Property in Pakistan v. Khuda Yar, P L D 1975 S C 678." Thus taking into consideration, aforequoted observations which have been consistently followed and reported judgments relied upon by the B parties, I have no hesitation in holding that appeal is not entertainable without complying with requirements contained in Order XLIII, Rule 3 C.P.C. as rightly determined in the impugned order. It is well settled that revisional powers are exerciseable only, in cases involving illegal assumption, non‑exercise or unlawful exercise of jurisdiction, obviously revisional jurisdiction cannot be normally invoked against conclusions of law or fact which otherwise do not involve question of jurisdiction or patent illegality, even if procedural or technical errors are reflected from the record. Similarly factual controversy, which is seriously contested by the parties needing thorough inquiry and specially when same was not raised before subordinate court cannot be allowed to be raised for the first time revisional stage. Careful examination of legal and factual position discussed above leads to a directed inference that impugned order is prima facie proper, as such it does not warrant interference in the exercise of revisional jurisdiction of this Court. There are two other aspects concerning points involved in the petition which are of considerable importance. Firstly, as already discussed, provisions of Order XLIII, Rule 3 are obviously mandatory. However, same appear to have been introduced merely for the benefit of opposite party against whom appeal is filed for facilitating his participation to defend the proceedings at very initial stage. Since: said provisions are apparently aimed at individual benefit, therefore opposite party in my opinion has option to waive the requirements by I coming forward in its own interest to put up defence at preliminary hearing. Therefore, if opposite party voluntarily opts to appear and contest the proceedings in such circumstances practically purpose of law would be adequately served, thus mere technical non‑compliance would not be detrimental. In such particular circumstances opposite party would be estopped from raising objection concerning defect of required notice, as also observed in case Abdul Ghani v. Settlement and Rehabilitation Commissioner and another 1984 C L C 901 at 903 and M/s Haji Suleman Gowawala & Sons Ltd. v. Usman and 13 others 1985 C L C 168 at 176 &

177. Secondly, determination of appellate Court that appeal is not entertainable on account of failure to comply with requirement of law shall have effect of rejection on the principles contained in Order XLI, Rule 3(1), C.P.C. for not drawing up the same in prescribed manner. However, for said reasons, with utmost respect I am inclined to differ with conclusion that such eventuality would entail dismissal of appeal, as held in case (i) Muhammad Shafi v. Sh. Muhammad Amin and another 1984 C L C 1528 and Ghulam Rasool v. Mst. FatimRi 1987 C L C 1177. Consequently I have no hesitation in holding that fresh memorandum of appeal can be legitimately filed by the aggrieved party after complying with specified formalities provided same otherwise is not barred by limitation or any other law. In this view observation in the following reported judgments are relied. (i) Jhanadasundari Shaha v. Madhabchandra Mala A I R 1932 Cal. 482. (ii) Siddique Khan and 2 others v. Abdul Shakur Khan and another P L D 1984 S C

289. Thus subject to above observations, for the foregoing reasons this petition is dismissed. Parties are left to bear their own costs. A.A. /296/Q Revision dismissed.