2008 PLP 326 (CLD)

MUSHIR ALAM, J.

On 9-10-2007, when the matter was fixed for Katcha Peshi, preliminary objection as to maintainability of instant appeal was, raised by Mr. Nadeem Akhter, learned counsel for the respondent. Mr. Nadeem Akhtar, contended that instant appeal filed without compliance to the requirement of section 22(2) of Financial Institutions (Recovery of Finances) Ordinance, 2001 read with Rule 3 of Order XLIII, C.P.C. is not maintainable. The parties were put to notice to satisfy the Court on such score. Ms. Soofia Saeed Shah, learned counsel for the appellants urged that Rule 3 of Order XLIII, C.P.C. is merely directory and not the mandatory. According to her, notice dated 2 October, 2007 indeed was served on the respondent's counsel and an affidavit to such an effect having been sworn and filed along with the appeal. According to her, notice is substantial compliance of the requirement of the referred provisions. In support of her contention, she has relied upon the case-laws reported as Sindh Industrial Trading Estate Limited and 3 others v. Noorani Enterprises, 1996 CLC 570 and Mrs. Dino Manekji Chinoy and 8 others v. Muhammad Matin PLD 1983 SC

693. It was further urged that the rule relates to the suit and not to the execution proceedings. In support of the last contention, her reliance was made on the case reported as National Investment Trust Limited v. Waqar Saigal and 6 others PLD 2001 Lahore

516. Mr. Nadeem Akhter, learned counsel for the respondent urged that subsection (2) of section 22 of Financial Institutions (Recovery of Finances) Ordinance, 2001 makes it mandatory to comply with the provision of Order. XLIII, Rule 3, C.P.C. According to him non-compliance thereof would entail dismissal of the appeal. It was contended that the service of notice is a condition precedent before filing of the appeal. In support of his contention, he has placed reliance on the case of Mrs. Dino Manekji Chinoy (supra) and in addition to placed reliance on the case laws reported as Messrs Haji Suleman Gowawala & Sons Ltd. v. Usman and 13 others 1985 CLC 168; Nazir Ahmed Jagirani Balouch v. Province of Sindh and another 1987 CLC 1750 and Ali Asbestos Ltd. and 4 others v. Bank of Credit and Commerce 1997 MLD 2003. He further urged that the provision of Order XLIII, Rule 3, C.P.C. equally applies to the execution proceedings and in support of his submission, he has relied on the case-law reported as Messrs Cooperative House Building Society Limited, Lahore through Secretary v. Messrs Trust Leasing Corporation Ltd. through Chief Executive and 4 others PLD 2000 Lahore

232. It was additionally, contended that Rule 3 of Order XLIII provides specified manner to file appeal against the interlocutory orders and unless; the appeal is filed in the manner provided for it cannot be entertained. According to him, a thing required to be done in a particular manner is not done as good as not done at all for the last mentioned submission. Reliance was placed on the case of Raja Hamayun Sarfraz Khan and others v. Noor Muhammad 2007 SCMR

307. We have heard the arguments, perused the material available on record and examined the case-laws cited at bar. It appears that the respondent filed a suit for recovery of amount against the appellants, which was decreed, followed by execution. At the stage of execution, matter was compromised. It seems that certain disputes arose as to the implementation of the compromise which resulted in filing of the subject C.M.A. before the executing Court and application was dismissed on 1-10-2007 which led to filing of the instant appeal. It is not disputed that the notice under section 22(2) of the Financial Institutions (Recovery of Finances) Ordinance, 2001 dated 2 October, 2007 was served on the respondent's counsel. It is for this reason learned counsel was in attendance when the matter was fixed for Katcha Peshi and raised the objection on the basis of which matter is being heard today. In order to appreciate the contentions of both the learned counsel, Rule 3 of Order XLIII, C.P.C. is of relevance and is reproduced 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 along with a copy of the order appealed against either personally or through registered post acknowledgment due and the postal or other receipt shall be filed with the memorandum of appeal for the record of the appellant-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." Rule 3 of Order LXIII, C.P.C. is made applicable by virtue of section 22(2) of the Financial Institutions (Recovery of Finances) Ordinance, 2001, which also reads as follows:-- "

22. Appeal.-- (1)... (2) The appellant shall give notice of the filing of the appeal in accordance with the provisions of Order XLIII, rule 3 of the Code of Civil Procedure (Act V of 1908) to the respondent who may appear before the Banking Court to contest admission of the appeal on the date fixed for hearing." Leading case on the subject is of Mrs. Dino Manekji Chinon and 8 others v. Muhammad Matin, reported in PLD 1983 SC

693. The apex court on examining the intent and purpose of the above provision came to a conclusion contained in Para. 19 thereof which runs as follows:-- "

19. In the instant case, we observe 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 admission of the appeal, and seek its dismissal in limini. 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. Sharifuddin Pirzada, should be utilized as "stepping stones" rather than we might add, as stumbling blocks; 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 Ahmad v. Ghulam Ali and others PLD 1963 SC 382 and Manager, J & K State Property in Pakistan v. Khuda Yar PLD 1975 SC 678." On examining large number of cases as cited at bar and some of the cases noted above, we are of the humble opinion that the intent and purpose of Rule 3 of Order XLIII, C.P.C. as reproduced above has been grafted in section 22(2) of the Ordinance, 2001 in order to ensure that the respondent is not condemned unheard. The purpose is to give an ample reasonable opportunity to contest any the appeal on merit and any order may not be passed behind the back of the respondent. On examining the authorities cited at bar principle deducible appears to be that such purpose could be served even by issuing the pre-admission notice. In the instant case, admittedly the notice was served but without memo. of appeal and impugned order. It may be observed that the order impugned was seriously contested by both the parties and the same learned counsel appeared before the learned trial court as is evident from their respective attendance noted in the order itself. It is not the case of the respondent that they are not aware of the impugned order that was passed in the execution proceedings. However, it is always desirable that the procedural requirement as laid down in any procedural law is complied, unless it is shown that non-observance of any procedural requirement, run prejudicial to the right and interest of the other side, a party cannot be non-suited. In instant case, service, of notice is not disputed, which in the given circumstances is substantial compliance. Very strict view as suggested by the learned counsel for, the respondent, if taken would defeat the very object and the purpose of law. It needs no authority to say that technicality of law is to be avoided. Procedure law is to be construed to foster the cause of justice and not to strangulate the same. In view of the foregoing discussions, in our humble opinion, since the appeal has not been admitted, no orders so far have been passed without hearing the respondent, who has already received the notice of the appeal, let the memo. of appeal be provided to the respondent within three days along with all annexures. Under the circumstances, objection as to non-maintainability of appeal for non-service of memo. of appeal as raised by the respondent is overruled. Let the instant appeal be set down for Katcha Peshi, since Mr. Nadeem Akhtar, who also appeared for the respondent before the executing court, no further notice is required. S.A.K./S-101/K Objection overruled.