2006 PLP 787 (CLC)

SYED HAMID ALI SHAH, J.

Facts of the case in a narrow compass are that the petitioner instituted a suit for declaration with permanent injunction against the respondent to the effect that the act of respondents, qua the installation of mobile phone booster/tower and huge generator in purely residential area is unlawful and illegal. The petitioner moved an application under Order XXXIX, rules 1 and 2, C.P.C. with his suit for the grant of mandatory injunction, seeking a restraint order regarding installation of mobile phone booster. Respondent No.1 contested the suit by filing written statement wherein the assertions made in the plaint were controverted. Learned trial Court dismissed the application vide order, dated 1-11-2005. Petitioner assailed the order in appeal and the learned appellate Court dismissed the appeal being incompetent for non-compliance of mandatory requirements of rule 3 of Order XLIII, C.P.C. Hence this petition.

2. Learned counsel for the petitioner has contended that a due notice was served upon the contesting respondents. Although neither the affidavit nor receipt thereof were filed at the time of filing of the appeal. The unserved respondents including L.D.A. who did not appear before the learned trial Court were not served with the notices. Learned counsel then submitted that the respondent entered appearance and the condition of statutory notice stands waived on appearance of the 'respondents. Learned counsel has referred to the cases of Messrs Nasir Metal Crafts Pvt. Ltd. through Chief Executive v. Zasha through Chief Executive and 2 others 1997 MLD 1910 to contend that when parties to appeal had appeared before the Court and the appeal had gone through the stage of admission, the question of lack of service of notice in terms of Order XLIII, rule 3, C.P.C. would pale into insignificance.

3. Learned counsel for the respondents, on the other hand, has submitted that while using word "shall" in rule 3 the Legislature intended to make the requirement of notice mandatory and its non-compliance entails the penal consequence i.e. dismissal of appeal. Learned counsel in support of this contention has referred to the case of Mrs. Dino Manekji Chinoy and others v. Muhammad Muteen PLD 1983 SC

693. Learned counsel has submitted that the Honourable Supreme Court has laid down that issuance of notice to respondent before presentation of appeal against order passed during the pendency of suit is obligatory and no appeal is liable to be entertained without the issuance of notice. The principle of law enunciated by the Honourable Supreme Court in the above referred case is binding on all the Courts by virtue of Article 189 of the Constitution of Islamic Republic of Pakistan. Learned counsel then drew attention to order, dated 14-11-2005 passed by learned Additional District Judge, Lahore where the Court adjourned the appeal for 15-11-2005 and subsequently incorporated another order on the same day that photo copy of the notice has been filed by the appellants. He added that perusal of the order sufficiently proves that photo copy of the notice was not filed at the time of filing of the appeal.

4. Heard learned counsel for the parties and perused the record.

5. The perusal of rule 3 of Order XLIII reveals that a notice before presenting the appeal to the respondent or his Advocate with a copy of the memorandum/grounds of the appeal and copy of the order appealed against, is a mandatory requirement. The appellant is required to file the acknowledgment due, postal or other receipt with the memorandum of appeal for the record of the learned appellate Court. Non-compliance of this requirement entails penal consequences and no appeal can be entertained without issuance of the requisite notice. The Honourable Supreme Court of Pakistan in the case of Mrs. Dino Manekji Chinoy and others v. Muhammad Muteen (supra) has held as under: "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 appeal 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, 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 of appeal along with 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." The above dictum of law laid down by the Honourable Supreme Court was subsequently followed in the cases of Ghulam Rabbani v. Abdul Qayyum and 2 others 1990 MLD 1871 and Noor Muhammad v. Ch. Liaqat Ali Khan 1990 CLC

929. Thus, there is no cavil with the proposition that an appeal against an impugned order during the pendency of suit, without complying rule 3 (ibid) cannot be entertained. The mandatory provisions of law are to be applied with its force audit vigor.

6. Learned counsel for the petitioner tried to wriggle out of the situation by taking the stance that where respondent has entered appearance or the appeal has gone through the stage of admission, the question of lack of service of notice becomes insignificant. This argument, however, will not come to his rescue as in the instant case the appeal was not admitted to regular hearing and' additionally all the respondents have not appeared before the Court at the limine stage. Respondents Nos.3 to 5 did not appear in the lower appellate Court. The case-law referred by the learned counsel for the petitioner will not be helpful in the circumstances. I do not agree with the arguments of learned counsel for the petitioner that justice should not be denied by resorting to the strict technical approach, for law leans in favour of adjudication on merit and abhors the decisions on technicalities. Dismissal of appeal on non-compliance of Order XLIII, rule 3 does not stop the appellant from seeking relief on merits as the applicant subsequent to the dismissal of appeal under Order XLIII, rule 3, C.P.C. can file fresh appeal after complying with the provisions of rule 3 (ibid). Fresh appeal is no bar, reference in this respect can be made to the case of Haji Muhammad Naeem and another v. Malik Ghulam Nabi and 5 others PLD 1988 Quetta 9.

7. For the foregoing, I do not find any illegality or infirmity in the impugned order which, as such, does not call for any interference in the revisional jurisdiction. This revision petition has no force and is dismissed accordingly. Parties to bear their own costs. M.H.IZ-9/L Revision dismissed.