1984 PLP 1287 (CLC)

(a) Civil Procedure Code (V of 1908)‑ ‑‑ O.XLIII, r. 3‑Issuance of notice under O. XLIII, r. 3 before filing an appeal is mandatory and non‑service of such notice can entail dismissal of appeal.‑[Notice‑Appeal (civil)]. Mrs. Dino Manekji Chinoy and 8 others v. Muhammad Malin P L D 1983 S C 693 fol. (b) Civil Procedure Code (V of 1908)‑ ‑‑O. XLIII, r. 3‑Neither appellate Court nor appellant giving notice to respondent of institution of appeal before admission‑Mandatory requirement of O. XL1I1, r. 3, C. P. C., held, not strictly or substan tially satisfied‑Appellate Court was, therefore, justified in dismiss ing appeal.‑[Appeal (civil)]. Mrs. Dino Manekji Chinoy and 8 others v. Muhammad Malin P L D 1983 S C 693 distinguished. (c) Civil Procedure Code (V of 1908)‑ ‑‑ O. XJ.III, r. 3‑Non‑observance of obligatory provisions of O. XLIII, r. 3‑Admission of appeal‑Contention that appellate Court can throw away an appeal on any ground at stage of admis sion but if Court omits to do so, it cannot, after admission dismiss on that ground‑Held, what an appellate Court can do at time of motion hearing can also be done by it at time of regular hearing Powers of appellate Court cannot be restricted without any legal justification‑‑Order XLIII, r. 3 confers a right on respondent to oppose admission if appeal and claim costs in event of its dismissal in limine‑Such valuable right is denied to respondent due to peti tioner's failure to send notice under O. XLIII, r. 3, C. P. C.‑‑Such appeal being incompetent, therefore, can be dismissed not only at limine stage but also after admission.‑[Appeal (civil)]. Mrs. Dino Manekji Chinoy and 8 others v. Muhammad Malin P L D 1983 S C 693 ref. This order shall dispose of the present civil revision (C. R. No. 1942‑D/ 83/BWP) as well as C. R. No. 1943‑D/83/BWP.

2. The facts giving rise to the said two revision petitions are that the petitioners in the civil revision in hand, namely, Siraj Din and others, brought a suit against the respondent, Province of the Punjab, for a declara tion with permanent injunction. Similar suit was instituted by Abdul Ghaffar and another, who are petitioners in the other civil revision, against the Province of the Punjab. In both the suits, the plaintiffs has prayed for temporary injunctions which were refused by a Civil Judge. They, therefore, preferred separate appeals before an Additional District Judge without giving notices to the respondent as required by rule 3 of order XLIII of the Code of Civil Procedure. The appeals were admitted to regular hearing but after that hearing the appeals were dismissed by the learned Additional District Judge, by his order, dated the 14th December, 1983 on the ground that notices under rule 3 had not been served. While dismissing the appeals, the learner' appellate Court did not examine the merits thereof. Feeling aggrieved by the order of the learned Additional District Judge, the petitioners have come up in revision to this Court.

3. Rule 3 reads as follows :‑‑‑ "

3. Notice before presentation of appeal‑(1) Where an appeal against an order is preferred during the pendency ‑of a suit, the appellant shall, before presenting the appeal, give notice of such appeal to the respondent or his Advocate by delivering a copy of the memorandum and grounds of appeal alongwith a copy of the order appealed against and obtain an acknowledgment; of receipt thereof for the information of the Appellate Court. (2) On receipt of notice referred to in sub‑rule (1), the respondent may, with the permission of the‑ Court, appear before it and contest the appeal and may be awarded costs on dismissal of the appeal in limine".

4. It was conceded by learned counsel for the petitioners that the petitioners had not given notices as required by rule 3 before filing their respective appeals. It was, however, urged by him that the provisions of rule 3 were directory' and not mandatory in nature and, therefore, non compliance therewith was not fatal to the appeals. It was also maintained by him that even if the said provisions were obligatory, their non‑obser vance could constitute a ground for dismissal of the appeals in limine but not after their admission for regular hearing.

5. The question whether rule 3 is mandatory or it is only ‑ a rule of convenience and expediency was considered by the Supreme Court in Mrs. Dino Manekji Chinoy and 8 others v. Muhammad Matin (P L D 1983 S C 693) and it was held that the issuance of a notice is a condition precedent to entertain ability of an appeal and if no such notice is given, the appeal should not be entertained. Relevant observations made in this behalf are to the following effect :‑ "

16. The purpose of this provision obviously is to avoid the delay that is occasioned in issuance of notice 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 entertamability 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 limine, 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 challen ged by an appeal but a right has been conferred on him to contest the appeal at the limine 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 pen dente 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, infutile 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 order made during the pendency of a suit of all the Courts, con cerned, do require the appellant or his Advocate to submit, along with the other documents 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 a of appeal alongwith a copy of the order appealed against' and shall also attach with the said affidavit a copy of the acknowledgment '1 obtained from the respondent or his Advocate, as the case may a be. Any appeal, which is not accompanied by such an affidavit and 1 a copy of the acknowledgment receipt should not be entertained." Respectfully following the view taken by the Supreme Court, I hold that issuance of notice under rule 3 before filing an appeal is mandatory and non‑service of such notice can entail dismissal of the appeal.

6. In the cited case, the appellant had not given notice under rule 3 but this lapse on his part was condoned by the Supreme Court for the reason that the appellate Court had itself issued a pre‑admission notice to the Advocate of the respondents and that Advocate was present when the appeal was admitted to a regular hearing. This is evident from paragraph 19 of the judgment under report which makes the following reading :‑ "In the instant case, we agree that the learned Division Bench had issued a pre‑admission notice to Advocate of the respondents (the petitioners herein) and their Advocate Mr. Akhtar Mahmood was present on pre‑admission notice. Thus, he could contest the admis sion of the appeal and seek its dismissal in limine. 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. Sharif‑ud‑Din Pirzada, should be utilized as "stepping stones" rather than we might add, as stumbling block; 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 Ahmed 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). Admittedly, in the cases before me the appellate Court had not issued notice to the respondent for the dates on which the appeals of the petitioners were admitted to regular bearing nor any functionary of the res pondent or its counsel bad otherwise entered appearance before the appellate Court on the said dates. The cases in hand are, therefore distinguishable on facts.

7. It has been seen that in the appeals in question neither the appellate, Court nor the petitioners, who were appellants therein, had given notices to the respondent of the institution of the appeals before their admission and thus the mandatory requirement of rule 3 was not strictly or substantially satisfied. The learned appellate Court was, therefore, justified in dismissing) the appeals.

8. This brings me to the argument of the learned counsel for the petitioners that even if the provisions of rule 3 were obligatory, the learned appellate Court could dismiss the appeals in limine but not after their admission. By raising the above argument, what learned counsel for the petitioners wanted to stress was that if an appellate Court can throw away an appeal on any ground at the stage of admission but it omits to do so, i cannot, after its admission, dismiss the appeal on that ground. Hz did no cite any authority for the point canvassed by him. To my mind, what a appellate Court can do at the time of motion hearing can also be done by it at the time of regular hearing. To hold otherwise, will amount to restricting the powers of appellate Court without any legal justification. As pointed out by the Supreme Court in the case of Mrs. Dino Narekji Chinoy and others, rule 3 confers a right on the respondent to oppose the admission of an appeal and claim costs in the event of its dismissal in limine. That valuable right was. undoubtedly, denied to the respondent due to petitioners' failure to send notices under rule

3. Their appeals were, therefore, no competent and could be dismissed not only at the limine stage but also after admission. In this view of the matter, admission of the appeals is of no avail to the petitioners.

9. What emerges from the above discussion is that the orders impugned herein are unexceptionable. Both the revision petitions are, accordingly, dismissed in limine. M. Z. M. Revision petitions dismissed.