1985 PLP 168 (CLC)

IBADAT YAR KHAN, J. This High Court Appeal arises out of an order passed by a learned Single Judge, sitting on the Original side of this Court in Suit No. 101/1975. By this order the learned Judge has disposed of several applications which were filed by the plaintiffs and defendants under Order VI, rule 17, C.P.C. seeking to amend their pleadings. The learned Judge has allowed the plaintiffs to amend the plaint by correcting two typographical errors. One by changing a digit in the number of the cheque and the other by effecting a change in para. 12 of the plaint to show that plaintiffs were "limited" incorrporate company. The third amendment prayed for was however not allowed. Plaintiffs seem to have reconciled themselves with the rejection of this part of the prayer and the learned counsel has made a statement at the bar that he is not pressing for revision of this part of the order. The defendants had also applied for permission to amend their W.S. by adding a new para. to the W.S. they had already filed. This application was granted by the learned Judge and the defendants were allowed to amend their W.S. by adding the new para. to it. This has resulted in a grievance to the plaintiffs and they have filed this appeal against this part of the order. In para. "B" of the appeal the appellants/ plaintiffs have projected their grievance in the following words:- "The amendment applied for by the defendants set up a case which was not originally pleaded. It was a different and new case set up to fill up the lacuna and was not justified in view of the facts and circusmtances on record and the learned judge fell into an error in allowing it. The reasons given in the order fail to convince." They now pray that the order of the learned Judge "allowing the amendment applied for by the respondents and keeping the respondents application under Order VII, rule 11, C.P.C. pending be set aside". This appeal was filed on 6-8-1983 and before it could mature for final hearing it has run in procedural difficulties and the respondents have moved for its dismissal as it has been filed without complying with the mandatory provisions of rules 3 and 4 of Order XLIII, C.P.C. "Non-compliance of this mandatory provision of law is fatal to the maintainability of the appeal and as such it should result in the neonatal death of the appeal", so the learned counsel interprets the provisions of rule 3 of Order XLIII, C.P.C. As lengthy arguments have been advanced by the learned counsels and evidence has been recorded on this point it is proper to dispose of this controversy before proceedings to decide the main appeal. Rules 3 and 4 have been added to Order XLIII, by amending Ordinance X of 1980. Rule 3 is as follows: "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 alongwith a copy of the order appealed against and obtain an acknowledgment of receipt thereof for the information of the Appellate Court." The appeal was presented in the Registry of this Court on 6-8-1983 and the office made the following endorsement on the memo. of appeal on 12-10-1983. "Returned again.

1. Notice to be served on respondents or their Advocates before instituting appeal or affidavit to that effect to be filed as directed by the Supreme Court. Compliance within a week." On 14-11-1983, Mr. S. Inayat Ali, Advocate for the plaintiffs and one Muhammad Hanif son of Abdul Sattar, a Clerk in the appellate-Company, filed two separate affidavits stating therein that on 4-8-1983, Mr. S. Inayat Ali addressed two separate notices to Mr. Naseem Farooqi and Mr. Mansoorul Arfin and through separate envelopes despatched these notices alongwith copies of memo. of appeal and the order appealed against through post under a certificate of posting. This is how Mr. Inayat Ali describes the event in his affidavit: "On 4-8-1983 I prepared two envelopes enclosing therein copies of the memo. of this appeal and 'order appealed against addressed to (1) Mr. Naseem Farooqui, Advocate and (2) Mr. Mansoorul Arfin, Advocate giving them advance intimation of institution of the appeal. I also prepared the certificate of posting under which they were to be posted. I then handed over the envelopes and the certificate of posting to Mr. Muhammad Hanif son of Abdul Sattar who is a clerk in the employ of the appellant to post them. The same day i.e. on 4-8-1983 Mr. Muhammad Hanif delivered to me the certificate of posting after doing the needful. I have misplaced the certificate of posting and in spite of diligent search in my office I have not been able to trace it. I had got prepared photostat of the original certificate of posting and I am annexing hereto one of them marked 'A'." Muhammad Hanif Clerk in his affidavit described that he collected these two envelopes from Mr. S. Inayat Ali and took them to the Liaquat Market Post Office where he posted them and obtained a certifi cate of posting which he brought back with him and handed it over to Mr. Inayat Ali. The respondents at once contested this position. They moved an application under Order XIX, rule 2, C.P.C. seeking permission to cross-examine Muhammad Hanif on his affidavit of 14-11-1983 "for the purpose of establishing that the appeal is not competent and further that no stay in the circumstances is warranted." The D.B. as it was then constituted allowed this application and Muhammad Hanif was called and has been examined/cross-examined in Court by the respondents learned counsel. It is not possible to reproduce here the lengthy and time consuming cross-examination of this witness. Sufficient it to say that the line adopted by the learned counsel seem to indicate that they are doubting the very fact that these notices were overhanded in the manner they are stated to have been processed. Suggestive questions were put to believe the story of their posting at all. So much so that it was suggested that even the certificate of posting bearing the seal of the post office and produced by the appellants is a forged document. That if at all these letters were posted as alleged by the appellants the envelopes did not contain the material like the copies of memo. of appeal and judgment appealed against. To lend support to this line of attack the learned counsel have prepared two envelopes, one containing all the documents and the other without the documents and questioned the witness to assess the weight of the two and answer whether the envelopes he had posted talled in weight with the former or the later. The two envelopes are a part of record and are marked as Exhs.A. and A-2. In order to appreciate whether the requirements of the provisions of rule 3 of Order XLIII, were followed and complied with it is proper to see what these requirements are. Clause (1) of rule 3 consists of two parts. The first part relates to the issuing of the notice, the later receipt of this notice by the addressee, in other words the phrase "give notice of such appeal to the respondent or his Advocate" relates to the performance on the outgoing and while the later part by delivering (a copy of memorandum and grounds of appeal alongwith a copy of the order appealed against) and obtain an acknowledgment of receipt thereof of the information of the appellate Court" relates to the situation on the receiving end. Thus, even if the entire story put forth by the appellants is believed it could only fulfil the requirement of the first part of the rule. The second part remains untouched. Can this second part be said to be complied with by either of the two established doctrines i.e. substantial compliance and presumptions. Learned counsel for the appellants wanted to argue that once it is proved that the envelopes were posted, a presumption under section 114 of the Evidence Act arises in his favour whereunder their safe passage and delivery to the addressee should be presumed. Section 114 of the Evidence Act is as follows:- "Court may presume existence of certain facts. The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case." This presumption is not absolute, like any presumption. This presumption is also open to attack and in the present case the learned counsel for the respondent has cited a case from Indian jurisdiction: A 1 R 1960 Andh Pra. 331(337). In this case the dispute was whether a transaction of sale of oil cakes had taken place on 6-7-1951. The defendants case was that the plaintiff, by fraudulently changing the date on certain documents relating to an earlier admitted transaction were using the same documents to prove the sale on 6-7-1951 which had never taken place. In order to show their bona fide plaintiffs proudced a certificate of posting, dated 13-7-1951 as presumptive evidence in support of their contention that under this certificate, bills were sent to defendants claiming the price of the goods. The contention raised was that a presumption under section 114 of the Evidence Act could be raised in their favour that the envelopes containing the bills sent to the defendants under the postal certificate were delivered to the defendants in due course. This arguments was examined and rejected by the Court. The observations of the Court dealing with this point are quoted below:- "The next contention on behalf of the appellant is based on Exh.A-4, a certificate of posting bearing the date 13-7-1951. The argument is that this document is presumptive evidence of the bill, dated 6-7-1951 having been sent to the defendant on the 13th. As to this, the first appellate Judge refused to believe P.W.1's evidence that he had sent the bill because, if the trans action were true, P.W.1 would have sent the bill to the defendant by registered post. The learned Judge, therefore, believed the defendant's version that he had never received any such bill. It is, however, contended by the learned Advocate for the appellant that the certificate of posting is prima facie evidence that some letter had been sent to the defendant on 13-7-1951 and in the ordinary course of events, the letter would have reached the defendant on the next day. For this proposition he relies on the presumption under section 114 of the Evidence Act. Section 114 relates to presumptions of fact and such presumptions may be drawn, in the language of the section, "in their relation to the facts of the particular case." Only upon proof that a letter had been actually posted, can a presumption arise of the letter having reached its destination in due course. In this case the certificate of posting Exh.A.4 cannot be held to be proof of the actual posting of the bill in question. Like other documents produced in this case by the plaintiff Exh.A.4 is not free from suspicion. It shows that two names are noted there, the first name is someone else's and the second name is that of the defendant. These names were not written by the postal authorities but by someone on behalf of the plaintiff. The post stamp bearing the date 13-7-1951 is below these two entries. In my opinion it is more than likely that the second entry in this certificate of posting must have been added subsequently, to suit the exigencies of this case. It is also worthy of note that in Exh.B.19 sent on 19th July, there is not even a hint of a bill having been sent to the defendant on the 13th while in Exh .B.23 sent on 31st July and in the plaint filed on 22nd October although it is mentioned that a bill had been sent by post on 13th July. it is not stated that the bill had been sent under a certificate of posting. In these circumstances Exh.A.4 has no evidentiary value, and the lower appellate Court was amply justified in brushing it aside." Another case cited at the Bar is P L D 1964 S C

536. The majority view in this case is relied upon. In this case Kaikaus, J.-dissented from the majority view of the Court on the interpretation of section 30 of the Displaced Persons Rehabilitation and Settlement Act. The majority view was that strict compliance of all the ingredients of section 30 was necessary. It was held that even the occupant of the Evacuee property for whose benefit the section was enacted could not contract out of it relieving the transferee of the property from strict compliance because compliance of section 30 in all its details was a matter of public policy rather than a mere protection for an individual tenant. Kaikaus, J. dissented from this view and expressed contrary opinion. This case if at all relevant for the purposes of the present case loses its force in view of the case of Dino Manekiji Chinoy which is a direct authority on the point and is the law declared so far as this Court is concerned. The second part of the rule relates to delivery of the notic and the memo. of appeal on respondent. If the performance under rule 3 is not a mere ritual requiring the appellant to just issue a notice then the second part calls for attention. The rule requires the appellant to deliver to the respondents or their Advocate the notice of filing of the appeal alongwith the memo. A of appeal etc. and as a measure of caution to "obtain an acknowledgment of receipt thereof for the information of the Appellate Court". It is plain that this part of obligation was never performed. Neither the delivery of the memo. of appeal to the respondent is proved nor any acknowledgment of its receipt is produced. The service of the notice on the respondent is not a hollow formality. It treats a valuable right in the respondent to effectively B block the passage of the appeal by appearing in Court and with permission of the Court to oppose its admission. This rule came under scrutiny of Supreme Court in the case of Dino Manekiji Chinoy v. Muhammad Matin P L D 1983 S C

693. This is how Dr. Nasim Hasan Shah, J. analysed the two sub-rules (3) and (4) of Order LXIII, at page 700 in paras. 16, 17 and 18 of the judgment. "

16. The purpose of this provision 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.

17. Sub-rule (2) of rule 3 provides that on receipt of the notice referred to in sub-rule (1), the respondent may with the permis sion of the Court, appear before it and contest the appeal with a view to getting it dismissed in limine, in case he succeeds in doing so he may even be awarded costs.

18. The above provision highlights the fundamental importance of issuance of the notice to the respondent by the appellant before presentation of the appeal. Not only does he become aware of the fact that an interlocutory order issued in his favour has been challenged by an appeal but a right has been conferred on him to contest the appeal at the limine stage with the permission of the Court with a view to getting the appeal dismissed at that very stage and, thus, bring to a close the litigation directed against an order passed pendente lite favourable to him. This would not be possible unless notice before presentation of the appeal was given to the respondent, the said valuable right conferred upon him would be lost and resultantly the provisions of sub-rule(2) of rule 3 would be rendered futile, infutile and nugatory. 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 appeals 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, alongwith 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 alongwith a copy of the order appealed against and shall also attach with the said affidavit a copy of the acknowledgment 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 acknowledgment receipt should not be entertained." I would, therefore, keeping aside the academic discussion whether in the legal phraseology the rule should be labelled as Directory or Mandatory respectfully borrow the reasonings from the judgment of my Lord Dr.Nasim Hasan Shah and contend to hold that issuance of the notice and its service on respondent postulated by this rule was "obligatory". The appellant in this case has failed to discharge this obligation. On this finding the learned counsel for the respondent invites us to hold that for breach of this obligation the appellant should be non-suited and condemned unheard and his appeal should be dismissed in limine. He relies on two judgments of the Supreme Court Jan Muhammad v. Home Secretary P L D 1969 S C 333 and Mansab All v. Amir P L D 1971 S C

124. The point raised and decided earlier in the case of Jan Muhammad and reaffirmed in the case of Mansab All arose in the follwoing circumstances. One Amir All accused of murder of one Rutallon was challaned and was put on trial under the general law. While inquiry under Chapter XVIII of the Cr.P.C. was pending the Commissioner, Sargodha Division by order, dated 21-7-1964 passed under section 5 of the West Pakistan Criminal Law (Aamendment) Act, 1963 referred the question of the guilt or the innocence of the accused for determination to a tribunal under that Act. The Tribunal found the accused guilty and recommended that they should be sentenced to ten years, rigorous imprisonment each. The D.M. Sargodha accepted the recommendation and convicted the accused accordingly on the 10th December, 1964. Aggrieved by their convictions the accused filed a revision petition under section 19 (2) of the Criminal Law (Amendment) Act before the Commissioner, Sargodha, raising numerous objections on the merits of the trial. No complaint was however, made that they were not heard by the Commis sioner before a reference was made to the Tribunal. The Commissioner dismissed the revision petition and acting suo motu enhanced sentence to fourteen years, rigorous imprisonment each. It is not relevant to mention the intermediary details and proceedings that followed. Suffice it to say that finally the accused challenged the order of reference, dated 21-7-1964 made by the Commis sioner on the ground that the Commissioner had failed to give a notice and provide an opportunity in terms of section 18 of the Act to enable them to show that the order of reference under section 3 was incompetent. As the Commissioner had failed to give notice and provide an opportunity of being heard to the accused before he passed the order of reference to the Tribunal they were deprived of a right of appeal to the Provincial Government against that order. The S.C. accepted this plea, set aside the convictions and held: At page 127. "If it was a necessary condition for the proper exercise of jurisdiction by the Commissioner under section 3 of the Criminal Law (Amendment) Act to give notice to the respondent, before referring the question of the guilt on innocence to the Tribunal, then failure to comply with this requirement rendered the order of reference illegal and void." Although in the above case there are quite a few features bearing close similarity to this case, yet it cannot be said that in every case where a notice is a statutory requirement or has been adopted as a rule of purdence the entire proceedings that would follow without such notice should necessarily be struck of and the out-come should be reversed. Nor indeed, in view of a direct authority on the subject it is open to us to reach a conclusion different from the dictum laid down by the Supreme Court in the case of Dino Manekji Chinoy where it is clearly laid down that rule 3 of Order XLIII, is a procedural law and it should not be allowed to stand as a stumbling block to thwart instead of facilitating and advancing the cause of justice. It was further held that if the respondent in response to a pre-admission notice issued by the Court has entered appearance it should be deemed to be substantial compliance of the rule; because the rule has been followed in spirit and the object for which it was enacted has been satisfied. Now it remains to be seen what is the effect of the failure of the appellant to fulfil the requirement of rule 3 of Order XLIII, and how the situation that has been created on account of failure of the appellants should be dealt with. Whether the appeal should be dismissed without hearing as vehemently argued by the respondent. To answer this question a glance on the diary sheet would be helpful. The order sheet shows that the appeal was filed on 6-8-1963, office raised the objection of non-compliance of Order XLIII, rule

3. On 14-11-1983, two affidavits were filed on behalf of the appellants making averments that a notice and copy of memo. of appeal had been posted to the respondent on 4-8-1984, the appeal was admitted to regular hearing by Court. On 11-2-1984, application No.140/84 under Order XLI, rule 5, C.P.C. was moved by the appellants praying for "stay of operation of the impugned order passed by the learned Single Judge till the disposal of the appeal". On 16-2-1984, Mr.Naseem Farooqui and Mr. Mansoor-ul-Arfeen appeared in Court to represent the respondents. Both learned counsel waived notice of the application under Order XLI, rule 5 and some other applications that were pending. On 27-2-1984, respondents counsel moved an application under Order XIX, rule 2, C.P.C. praying therein that the Court be pleased to direct that deponents Iqbal and "Muhammad Hanif who has sworn affidavit on 14-11-1983 to be present in Court on all dates of hearing for his cross-examination as well. The said cross-examination is for the purposes of establishing that the appeal is not competent and further that no stay in the circumstances is warranted." Thereafter, the hearing of the application was fixed on several dates and by consent of parties, was adjourned from time to time. On 25-4-1984, among others, the application for stay of proceed ings (C.M.A 140/84) also came up for hearing in presence of the counsel for the appellants and Mr.Nasim Farooqui and Mr.Mansoor-ul Arfin learned counsel for the respondents. The Court disposed of this application by its order, dated 25-4-1984. The portion of the order relating to this application is as follows: "This suit was filed in the year 1975, and if suit is allowed to. proceed on the basis of the amended written statement and subsequently the appeal is allowed that would cause not only inconvenience to the parties but might also cause inconvenience to witnesses. We would however, direct that the appeal, being against the interlocutory order will be heard in the second week of May, 1984." This stay has been extended from time to time and is still operating. It will be seen from the above narrative that order staying the proceedings passed on 25-4-1984, has been passed after full knowledge and understanding of the counsel for the respondents who had entered appearance on 16-2-1984 and had waived notice. The order has been passed in their presence and after allowing them full opportunity to contest the prayer for stay. As such the irregularity of service of notice upon them is cured by the appearance of the respondents and D this is in consonance with the view expressed by their Lordships of the Supreme Court in the case of Dino Manekji Chinoy. The real difficulty, however arises when the respondents learned counsel insists that the appeal "should be dismissed". I would now examine this part of his argument. The first thing to be noted in this connection is that the rule itself does not provide for any penal action if the appellant proceeds to file an appeal by-passing the preliminary requirement of informing the respondent of the intended action. Nor the language of the rule is capable of spelling a bar to the filing of the appeal without ' such a notice as was the case with section 80, C.P.C. which was to the following effect before amendment:- "No suit shall be instituted against the Government, or against a public officer in respect of any act purporting to be done by such public officer in his official capacity,, until the expiration of two months next after notice in writing has been delivered to or left at the office of." Rule 3 is couched in different language. 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 in tact, it is subjected 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 Kar. 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, rehear the matter after due notice to the respondents. No such grievance is raised and the main appeal has been heard in Court for five days or so and the respondents had full share out of this long time to put forth their point of view in Court. Not being a case where orders are challenged under the doctrine of actions corum non judice, if admission order is recalled this appeal would dip down to a level of pre-admission stage to surface up again as soon as the rider of notice is lifted. In my view, the disability in the present case relates to the initial and earliest stage and to borroW with respect the observations of his Lordship Dr.Nasim Hasan Shah in the case of Dino Manekji Chinoy "Any appeal which is not accompanied by such an affidavit and a copy of the acknowledgment receipt should not be entertained". Now its a transaction past and closed. That stage is passed. If the respondents have suffered any prejudice or injury on account of the order of admission in absentia surely they are entitled to a redress and the Court would try to restore status quo anti as soon as such a prejudice, if any is brought to its notice. But no such prejudice is pointed out and in the circumstances, to refix the appeal for summary hearing would be nothing but an exercise in futility causing delay and thus defeating the very object for which the rule has been enacted. It is no body's case that the appellants had no right to file this appeal or the Court lacked jurisdiction to hear and admit the appeal to regular hearing. The appellant cannot be deprived of his valuable right of an appeal for violation of rule of procedure when no prejudice is shown to have been caused and the injury if any has been fully repaired by their own waiver to the notice of hearing in the earliest stages when no interim order was yet passed. The prayer for dismissal of appeal has no merit and is rejected. The appeal should be heard on merits. NAIMUDDIN, J. I agree. M.B.A. Order accordingly.