1988 PLP 2300 (CLC)

Muhammad Siddique and 6 others v. Boota P L D 1985 Lab. 243 ref. Ch. Muzammal Khan for Appellant. Malik Amjad Pervaiz for Respondent. Date of hearing: 10th February, 1988. A suit for possession of the house in dispute through pre‑emption was filed by the respondent and was decreed in his favour by the learned Civil Judge 1st Class, Gujranwala, vide judgment dated 22nd May, 1979, on payment of Rs.28,

500. The appellant filed an appeal which was partly accepted by the learned District Judge, Gujranwala, vide order dated 19th May,, 1981. Through the said appellate order he set aside the findings on issues Nos. 5 and 9 relating to the valuation of the suit and determination of the market value of the house in dispute. The findings on the remaining issues including issue No.10 relating to the prevalence of custom of pre‑emption were affirmed. The case was, therefore, remanded for fresh decision on issues Nos. 5 and 9 after appointing an experienced contractor or technical hand as Local Commissioner. The appellant filed this appeal primarily to challenge the decision of the learned appellate Court on issue No.

10. The learned counsel for the respondent has raised an objection that the appeal is not maintainable because no notice as required under Rule 3 of Order XLIII, C.P.C. was served on or sent to the respondent or his learned counsel. I have heard the learned counsel for the parties in regard to this objection.

2. The learned counsel for the appellant has conceded that no notice under Rule 3 of Order XLIII, C.P.C. was sent either to the respondent or to his learned counsel. He, however, states that no notice was legally required to be sent because the appeal had not arisen out of a pending case and because the purpose of the said rule read with sub‑rule (2) of Rule 3 ibid was served as the learned counsel for the respondent appeared in the Court on 17th April, 1983 when the appeal was admitted for hearing. The learned counsel for the respondent has referred to Muhammad Siddique and 6 others v. Boota P L D 1985 Lab. 243 in which the same question had arisen in respect of an appeal arising out of an appellate order of remand. My learned brother Muhammad Ilyas, J. held therein that as soon as the remand order was made the concerned suit became pending. I am in full agreement with his verdict. To elucidate the point it may be added that when an order of remand is made, in an appeal before the appellate Court, the appeal comes to an end there and then and as a result the suit becomes pending there and then. In other words it becomes pending as soon as the order of remand is passed and not from the date or the time when the file is received in the learned trial Court or when the learned trial Court starts actual hearing of the same. Therefore, the suit in hand became pending on 19th May, 1981, as soon as the impugned appellate order remanding the case was made. Therefore, this appeal when filed related to a pending case and, therefore, under Rule 3 of Order XLIII, C.P.C. it was a legal requirement that a notice should be sent to the respondent or his learned counsel before the filing of the appeal.

3. The learned counsel for the appellant has contended that under sub‑rule (2) of Rule 3 ibid the intention is that the opposite party. may have a chance to appear at a preliminary stage and that the said purpose was fulfilled when the learned counsel for the respondent appeared on 17th April, 1983 when the appeal was admitted for hearing. This argument has no force. The appeal was taken up at first on 27th June, 1981 and an interim order was issued on that date staying the proceedings in the suit before the learned trial Court as prayed for by the appellant in‑Civil Miscellaneous No. 2383/G of 1981 filed alongwith the appeal. Therefore, the respondent did not appear and could not appear, for want of notice, on 27th June, 1981 when the appeal was taken up for the first time and when even the said interim relief was allowed. The learned counsel for the respondent appeared about two years afterwards just because of notice in regard to the said Civil Miscellaneous relating to the said interim relief, issued to the respondent in due course and in routine. The purpose of Rule 3 ibid is that the respondent should be able to appear on the very first date of hearing and not in response to a notice issued by the Court but in response to the notice issued by the party who is filing the appeal or an application. The respondent as already said did not and could not appear on 27th June, 1981 and as such the provisions of Rule 3 ibid remained uncompiled with in letter and spirit moreso because the respondent had no chance to oppose or contest the grant of interim relief on 27th June, 1981. As such the mandatory provisions contained in Rule 3 of Order XLIII, C.P.C. were not complied with and the appeal, therefore, is not maintainable. The appeal is dismissed. However, for its failure on a legal ground the parties are left to bear their own costs. H.B.T./M‑739/L Appeal dismissed.