1990 PLP 929 (CLC)

Rafiq Javed Butt for Respondent. This application has been filed by the respondent for dismissal of the appeal on the‑ground that the mandatory provisions of Order 43 Rule 2 C.P.C. have not been complied with.

2. The learned counsel for the applicant/respondent urged that the object of Order 43 Rule 3 was to afford an opportunity of being heard to the respondent at the pre‑admission stage. In the present case, the appeal was filed in the High Court on 7‑11‑1989 and the notice was posted to the applicant on the same date which was received by him on 9‑11‑1989 while the appeal was admitted to regular hearing on 8‑11‑1989. Thus the applicant's valuable right of entering appearance and opposing admission of the appeal was infringed. He further contends that Noor Muhammad etc. appellants had obtained the copy of the impugned order on 1‑11‑1989 and had sufficient time to serve a notice on the respondent but they deliberately avoided to do so and issued notice on the same date when the appeal was actually filed in the High Court. He further contends that even otherwise the notice was not accompanied by a copy of the memorandum of appeal or the impugned order and was no notice in the eye of law. He seeks dismissal of the appeal by placing reliance on Mrs. Dino Manekji Chinoy and 8 others v. Muhammad Matin (P L D 1983 S C 693), Siraj Din and others v. Province of Punjab (1984 C L C 1287), Muhammad Siddique and 6 others v. Boota (P L D 1985 Lahore 243) and Haji Muhammad Naeem and another v. Malik Ghulam Nabi and 5 others (P L D 1988 Quetta 9). On the other hand, the learned counsel for the appellants submits that the notice was issued to the respondent on his correct address and would be deemed to have been received by him. In this connection, he relied on Muhammad Ramzan and another v. Haji Karim Bakhsh and 5 others (1988 C L C 448). He further submits that there is nothing to show that any prejudice was caused to the respondent. He prays that the appeal having been admitted for regular hearing be disposed of on merits. Lastly, he submits that the consequence of dismissal of the appeal for non‑compliance of the provisions of Order 43 Rule 3 of the C.P.C. is not contemplated under the law. In this connection, he places reliance on Messrs Haji Suleman Gowawala & Sons Ltd v. Usman and 13 others (1985 C L C 168), Ghulam Rasul v. Mst. Fatima (1987 C L C 1177) and Muhammad Ramzan and another v. Haji Karim Bakhsh and 5 others (1988 C L C 448).

3. Admittedly, the notice in the present appeal was issued on the same date when the appeal was filed in the High Court and was actually received by the respondent on 9‑11‑1.988, one day after admission of the appeal for regular hearing. Thus, the respondent was deprived of an opportunity to appear and contest admission of the appeal. The law secures to the respondent, the right of ' being heard at the pre‑admission stage under Order 43 Rule 3 of the C.P.C. If the said right is infringed, it would amount to a legal injury and prejudice would be presumed. The appellants not only filed the appeal without complying with the prerequisites for presentation of an appeal but also succeeded in obtaining a stay order against the sale of the disputed property. Thus, the right and interest of the respondent were definitely prejudiced. Now, the question is as to what should be the fate of the appeal which was filed and entertained without compliance of the provisions of order 43 Rule 3 of the C.P.C. I am of the considered opinion that the right of appeal which has been provided under Order 43 of the C.P.C. cannot be defeated merely because of the non‑compliance of the provisions of Order 43 Rule 3 of the C.P.C. The technicalities of law, as held in the case of Mrs Dino Manekji Chinoy and 8 others v. Muhammad Matin (P L D 1983 S C 693), are not meant to be a stumbling block in the way of enforcement of rights of the parties. Admittedly, the respondent received the notice on 9‑11‑1988, though, as claimed by him, without a copy of the impugned order and the grounds of appeal. The admission of appeal ends of justice would be adequately met if the admission order was recalled and the appeal refixed for motion hearing in the presence of counsel of parties. Mrs. Dino Manekji Chinoy and 8 others v. Muhammad Matin PLD 1983 SC 693 rel. PLD 1983 Kar. 387 ref. (c) Civil Procedure Code (V tit' 1908)‑‑‑ ‑‑‑O.XLIII, R.3‑‑‑Notice to respondent before filing appeal‑‑‑Essential requirements‑‑‑Although service of notice is the responsibility of postal authorities yet the law requires that acknowledgement receipt be annexed to the appeal in proof of the service having been effected‑‑‑Appellant has, thus, ordinarily to wait till the service of notice as contemplated had been effected‑‑‑In cases involving great urgency a party may rile appeal with an affidavit for having sent a notice to respondent‑‑‑Without compliance of such requirement of law, appeal cannot be entertained‑‑‑After admission, however, appeal cannot be dismissed on the sole ground of mere technical non‑compliance of the provisions of O.XLIII,R.3, C.P:C: In such a situation, adverse orders passed in the absence of respondent should be eliminated from the field and status quo ante, be restored for affording an opportunity of being heard to respondent‑‑‑Where however, objection to non‑compliance of the provisions of O.XLIII, R.3, C.P.C. was waived by a party, or no adverse order was passed, or no interim relief granted or a case was thoroughly heard on merits then the same should be heard on merits. (d) Civil Procedure Code (V of 1908)‑‑‑ ‑‑‑O.XLIII, R.3‑‑‑No notice served on respondent, before admission of appeal‑‑ Effect‑‑‑High Court recalled the admission order as also the interim order and ordered the appeal to be refixed for motion hearing. Mian Munawar Hussain for Appellants. Rafiq Javed Butt for Respondent. This application has been filed by the respondent for dismissal of the appeal on the‑ground that the mandatory provisions of Order 43 Rule 2 C.P.C. have not been complied with.

2. The learned counsel for the applicant/respondent urged that the object of Order 43 Rule 3 was to afford an opportunity of being heard to the respondent at the pre‑admission stage. In the present case, the appeal was filed in the High Court on 7‑11‑1989 and the notice was posted to the applicant on the same date which was received by him on 9‑11‑1989 while the appeal was admitted to regular hearing on 8‑11‑1989. Thus the applicant's valuable right of entering appearance and opposing admission of the appeal was infringed. He further contends that Noor Muhammad etc. appellants had obtained the copy of the impugned order on 1‑11‑1989 and had sufficient time to serve a notice on the respondent but they deliberately avoided to do so and issued notice on the same date when the appeal was actually filed in the High Court. He further contends that even otherwise the notice was not accompanied by a copy of the memorandum of appeal or the impugned order and was no notice in the eye of law. He seeks dismissal of the appeal by placing reliance on Mrs. Dino Manekji Chinoy and 8 others v. Muhammad Matin (P L D 1983 S C 693), Siraj Din and others v. Province of Punjab (1984 C L C 1287), Muhammad Siddique and 6 others v. Boota (P L D 1985 Lahore 243) and Haji Muhammad Naeem and another v. Malik Ghulam Nabi and 5 others (P L D 1988 Quetta 9). On the other hand, the learned counsel for the appellants submits that the notice was issued to the respondent on his correct address and would be deemed to have been received by him. In this connection, he relied on Muhammad Ramzan and another v. Haji Karim Bakhsh and 5 others (1988 C L C 448). He further submits that there is nothing to show that any prejudice was caused to the respondent. He prays that the appeal having been admitted for regular hearing be disposed of on merits. Lastly, he submits that the consequence of dismissal of the appeal for non‑compliance of the provisions of Order 43 Rule 3 of the C.P.C. is not contemplated under the law. In this connection, he places reliance on Messrs Haji Suleman Gowawala & Sons Ltd v. Usman and 13 others (1985 C L C 168), Ghulam Rasul v. Mst. Fatima (1987 C L C 1177) and Muhammad Ramzan and another v. Haji Karim Bakhsh and 5 others (1988 C L C 448).

3. Admittedly, the notice in the present appeal was issued on the same date when the appeal was filed in the High Court and was actually received by the respondent on 9‑11‑1.988, one day after admission of the appeal for regular hearing. Thus, the respondent was deprived of an opportunity to appear and contest admission of the appeal. The law secures to the respondent, the right of ' being heard at the pre‑admission stage under Order 43 Rule 3 of the C.P.C. If the said right is infringed, it would amount to a legal injury and prejudice would be presumed. The appellants not only filed the appeal without complying with the prerequisites for presentation of an appeal but also succeeded in obtaining a stay order against the sale of the disputed property. Thus, the right and interest of the respondent were definitely prejudiced. Now, the question is as to what should be the fate of the appeal which was filed and entertained without compliance of the provisions of order 43 Rule 3 of the C.P.C. I am of the considered opinion that the right of appeal which has been provided under Order 43 of the C.P.C. cannot be defeated merely because of the non‑compliance of the provisions of Order 43 Rule 3 of the C.P.C. The technicalities of law, as held in the case of Mrs Dino Manekji Chinoy and 8 others v. Muhammad Matin (P L D 1983 S C 693), are not B meant to be a stumbling block in the way of enforcement of rights of the parties. Admittedly, the respondent received the notice on 9‑11‑1988, though, as claimed by him, without a copy of the impugned order and the grounds of appeal. The learned counsel for the respondent states that he has himself obtained a copy of the impugned order and the memorandum of appeal and has gone through the same. Thus, the ends of justice can be adequately met if the admission order dated 8‑11‑1989 is recalled and the appeal re‑fixed for motion hearing in the presence of the learned counsel for the parties.

4. The judgments relied upon by the learned counsel for the applicant respondent with a prayer for dismissal of the appeal are distinguishable on facts. In Boota's case, the very issuance of notice was considered to be doubtful and otherwise there was no evidence to show that the notice was at all received by the respondent. In these circumstances, it was held that the provisions of Order 43 were not followed at all. In Haji Muhammad Naeem's case, it was held that mere technical non‑compliance of rules was not detrimental to the appeal. In that case the notice to the opposite party was despatched through registered post on 12‑7 1987 and the appeal was filed on 13‑7‑1987, it was actually heard on 15‑7‑1987. The appeal was not entertained by the learned District Judge, Quetta, vide his order dated 15‑7‑1987. The said order was maintained by the High Court on the ground that the provisions of Order 43 had not been complied with. Obviously, this case does not deal with a situation in which an appeal has been admitted to regular hearing and thereafter its dismissal is sought for non‑compliance of the provisions of Order 43 Rule 3 of the C.P.C. In Mrs. Dino Manekji's case, the Hon'ble Supreme Court did not insist upon the technical compliance of the rule where the respondent had voluntarily appeared at the pre‑admission stage and was heard. Thus, the object of the law was fulfilled. Hence, the preliminary objection against the judgment of the High Court was rejected by the Supreme Court. The question as to what should be done in a case in which the appeal was inadvertently admitted to regular hearing without full compliance of the provisions of Order 43 was not examined in Mrs. Dino Manekj's case. This question was directly dealt with by a Division Bench of the Karachi High Court in the case of Haji Suleman Gowawala and Sons Ltd. v. Usman and 13 others (1985 C L C 168). In that case, the appeal was heard on merits for five days after the admission without there being any interim order. The learned counsel for the respondent pointed out that the mandatory notice under Order 43, Rule 3, C.P.C. was not served and prayed for dismissal of the appeal. It was held "the first note put in this connection is that the rule itself does not provide for a penal action if the appellant proceeds to file an appeal bye‑passing the preliminary requirement of informing the respondents of the intended action, nor the language of the rule is capable of spelling a bar to the riling of the appeal without such a notice as, was the case with section 80 C.P.C." It was further held, "The prohibitive concept attached to the right of filing a suit without notice is not there. While the right to file an appeal is preserved intact, it is subject to a rider of additional duty to be fulfilled before the right is exercised. But if the rider is shaken of and the appellant relying on the dictum laid down in the judgment of the High Court (P L D 1983 Karachi 387), which was yet under appeal before the Supreme Court files the appeal in Court and the Court admits the appeal to regular hearing can or should the process be reversed. Stage of filing has passed. The compliance of the rule could be insisted upon at the time of filing entertainment of the appeal. The Court could refuse to entertain the appeal. But that stage has been passed. The appeal has not only been entertained but after a preliminary, hearing admitted to regular hearing. The best that could be done was to recall any adverse order, re‑hear the matter after due notice to the respondents." In Muhammad Ramzan's case, the High Court disapproved of dismissal of the appeal after its admission on the preliminary objection for not filing an affidavit in proof of service of notice, required under Order 43 of the C.P.C. It was further held in this case that the service of notice sent through registered post was not duty of the appellant. Moreover, they were not supposed to wait for service of the respondent before filing the appeal which could not be thrown out without hearing at the limine stage due to failure of the appellant to produce an acknowledge receipt or an affidavit for having given a notice. With due respect, I do not subscribe to this later part of the view expressed in Muhammad Ramzan's case. Of course, service of the notice is the responsibility of the postal officials but then the law requires that the acknowledgement receipt be annexed to the appeal in proof of the service having been effected. Thus, ordinarily, the appellant has to wait till the service of notice as contemplated under Order 43 Rule 3, C.P.C. has been effected. In cases involving great urgency a party may file the appeal with an affidavit for having served a notice on the respondent. Filing of an affidavit is also a requirement of the law as declared by the Supreme Court in Mrs. Din Manekji Chinoy's case. Without compliance of these requirements of the law, the appeal cannot be entertained. However, after admission, the appeal cannot be dismissed on the sole ground of mere technical non‑compliance of the provisions of Order 43, Rule 3 of the C.P.C. In such a situation, the adverse orders passed in the absence of the respondent should be eliminated from the field and status quo ante be restored for affording an opportunity of being heard to the respondent. In cases where objection to the non‑compliance of the provisions of Order 43 Rule 3, C.P.C. is waived by a party, or no adverse order is passed, or no interim relief granted, or a case is thoroughly heard on merits, then the same should be decided on merits. In Siraj Din's case, it was held that the appeal admitted without compliance of the provisions of Order 43 Rule 3 of the C.P.C. could, justifiably, be dismissed. In Ghulam Rasul's case also, view taken was that the appeal filed without complying with the mandatory provisions of Order 43 Rule 3, C.P.C., would be liable to dismissal. In my view, after admission, an appeal cannot be dismissed as being incompetent solely for non‑compliance of the procedural formalities without taking into account all the attendant circumstances of the case showing either waiver on the part of the respondent or substantial compliance of the provisions of Rule

3. In a case where there is neither waiver nor substantial compliance of the provisions of Order 43 , C.P.C. orders of admission of appeal or injunction may be recalled and the appeal be fixed for motion hearing afresh. Such a course would be in consonance with the maintenance of balance between the appellant's right of appeal and the respondent's right to oppose its formal admission in the present case, not only the appeal was admitted to regular hearing but interim relief prohibiting sale of the disputed property was also granted to the appellant in the absence of the respondent. The appeal was admitted for, regular hearing on the statement of the learned counsel for the appellant (who is a senior and responsible Advocate of this Curt) that the provisions of Order 43 Rule 3 of the C.P.C. had been fulfilled. However, when the respondent was served in this case, he promptly filed the present application stating therein that the notice was actually served one day after the admission of the appeal. Moreover, the notice was not accompanied with a copy of the memorandum of appeal or the impugned order. The application is duly supported by an affidavit and there is no counter affidavit to controvert the allegations made in the application. Now, the respondent has obtained a copy of the impugned order as well as the memorandum of the appeal and no longer insists to have the copies from the appellants. Hence, I recall the admission order dated 8‑11‑1989 and the order of the even date prohibiting alienation of the disputed property passed on C.M. No. 5055‑C/89. The result is that the appeal shall be re‑fixed for motion hearing. The learned counsel for the appellants prays that an actual date may be fixed for motion hearing of the appeal in the next week to which the learned counsel for the respondent has no objection. With the concurrence of the learned counsel for the parties the appeal is ordered to be fixed for motion hearing on 29‑1‑1990. A.A./N‑342/L Order accordingly.