P L D 1993 Peshawar 131 (PLP)

Zain Khan plaintiff‑respondent was granted a decree on 15‑7‑1986 by a learned Civil Judge First Class, Abbottabad, for perpetual injunction against the defendants‑petitioners restraining them from interfering in the cutting of the marked trees measuring 7,760 c.ft. from the land bearing Khasras Nos.2329, 2318, 2319, 2310, 2265, 2213 and 2130 and for making arrangements for the transportation and disposal thereof in accordance with the Rules of the Forest Department, N.‑W.F.P. Against the judgment and decree aforesaid the appeal filed by the Government of N.‑W.F.P. through the Secretary, Forest and Agricultural Department and others was dismissed on 15‑11‑1987 by a learned Additional District Judge, Abbottabad. The Civil Revision by the Forest Department on N.‑W.F.P. filed under section 115, C.P.C. against the judgments and decrees of the two Courts below was dismissed by a learned Single Judge on 16‑12‑1989. Zain Khan, decree‑holder, filed an execution proceeding against the petitioners‑judgment‑debtors whereas the petitioner Government filed an objection petition pleading that the sale money of the disputed timber having been deposited in the Executing Court, therefore, the decree‑holder was not entitled to any more amount. 2.This objection petition was contested by the respondent-decree holder After appraising the evidence adduced by the parties the learned Executing judge by his order dated 10-10-1991 dismissed this objection petition Feeling aggrieved of the dismissal of their objection petition the judgment debtor went up in appeal to the District Judge which was heard by Mr. Mukhtar Ahmed Khan learned Additional District Judge Abbottabad.

3. After hearing the learned counsel for the parties the learned Additional District Judge dismissed the appeal vide his order dated 29-4-1942 on a technical ground.

4. Feeling still dissatisfied the judgment-debtor petitioners have come up in revision to this court.

5. After hearing Mr Muhammad Aslam Khan A.A.G- for the petitioners and Syed Shabbir Hussain Shah the learned counsel for the decree holder respondent I have come to the conclusion that the learned appellate judgment is very brief it would be worthwhile to reproduce the operative part of the impugned judgment which is an under:- I have carefully gone through the legal proposition involved in the instant case in the light of provisions of Order 43 Rules 3, C.P.C read with case-law reported in PLD 1983 SC 693 and I am of the considered view that pre-admission notice of such an appeal to the respondent was mandatory which the appellants have failed to serve upon the respondent or his counsel, therefore, the present appeal is not masintainable and is hereby dismissed with no order as to costs.

6. The learned counsel for the respondent decree-holder concedes that he had contended before the learned appellant Court that the notice within the contemplation of Order XLIII, Rule 3, C.P.C. was necessary but the learned appellate Court dismissed the appeal only on this ground leaving aside the other potential objections both on factual as well as on legal plane. The learned appellate Court has placed reliance on two authorities (1) Qadar Ahmed Siddique and 6 others v. Ramzan Ali and 6 others PLD 1977 Karachi 273 and (2) Dino Manckji Chinoy and 8 others v. Muhammad Matin PLD 1983 SC 693 for the proposition that 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 along with a copy of the order appealed against and obtain an acknowledgement of receipt thereof for the information of the Appellate Court and that as the appellate judgment debtor has not served such a notice therefore, the appeal was not competent and it was according dismissed.

7. A bare reading of Order XLIII Rule 3 ibid would show 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 an appeal by delivering a copy of the memorandum and grounds of appeal alongwith a copy of the order appealed against (underlining is mine). The learned Additional District Judge has completely ignored that the appeal before him was not against any order made during the pendency of the suit but it was an order passed by the Executing Court during the execution proceedings which were apparently treated by the learned Executing Court as a proceeding and not a suit. There was thus no warrant for the learned Additional District Judge to have dismissed the appeal on this score. The first case of "Qadar Ahmed Siddique" on which the learned Appellate Court has placed reliance, has laid down two different propositions, none of which lays down that where an appeal against an order is preferred during the pendency of the suit the appellant shall before presenting the appeal give notice of such appeal to the respondent or his Advocate. Likewise the ratio deducible from "Dino Manekji Chinoy and 8 others case, which I have been able to comprehend, is that the purpose of Order XLIII Rule 3, C.P.C. 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. Obviously it has nowhere been laid down in both the authorities that any notice of an appeal against the order passed by an Executing Court while dismissing the objection petition, a notice contemplated within Rule 3, is required.

8. A perusal of the impugned judgment would show that it is not at all in consonance with the requirements of an appellate judgment laid down in Order XLI, Rule 31, C.P.C. An appellate judgment should state the points, reasons for determination, its decision thereon and reasons for its decision. The term "points for determination" refers to all the important questions involved in the case. It is, therefore, necessary for the appellate Court to record the points for determination so that it could be ascertained whether the Court has dealt with all those points that were agitated. Now in the instant case, the learned counsel for the respondent has submitted before me that he had raised a number of other legal as well as factual objections but those objections were not at all adverted to by the learned appellate Court. Then it is appropriate if in such like cases where the technical objections are taken and if any one or more of them prevail with the Court then alongwith those the controversy on the actual aspect should also be disposed of so as to avoid remand of the case in order to obviate the delay in disposal of suits or appeals. If the appellate Court has also alongwith those objections adverted to the factual controversy, then there would have been no necessity of remand.

9. For the reasons stated above the impugned order of the learned appellate Court is absolutely not sustainable and, therefore, I have no hesitation to set it aside. The decree‑holder‑respondent is being deprived of the fruits of his decree in the suit which he has been able to obtain in the suit which was instituted on 31‑7‑1979.

10. In the circumstances the appeal is remanded to the learned District Judge, Abbottabad for disposal on factual and legal plane. The file should be expeditiously sent back to the learned District Judge, Abbottabad to enable him to comply with the above direction. A.A./1469/P Case remanded.