1999 PLP 790 (CLC)

4 The learned counsel for respondent raised a preliminary objection about the maintainability of appeal due to non‑compliance of mandatory provision of Order XLIII, Rule 3 of the C.P.C. The learned counsel for appellant frankly conceded that no notice as required under Order XLIII, Rule 3, C.P.C. has been served upon the respondent, but argued for maintainability of appeal on the ground that before filing appeal in the Court of District Judge (which was subsequently returned for want of pecuniary jurisdiction) notice was duly served upon respondent and it was in the knowledge of respondent that impugned order is likely to be challenged in a proper appeal. In support of his contention he relied upon Mrs. Dino Mankeji Chinoy and others v. Muhammad Matin PLD 1983 SC 693 wherein their Lordships of the Supreme Court has held that procedural law should be utilized as "stepping stones" rather than stumbling block, and that right of appeal cannot be allowed to defeat for failure to comply with the form wherein substance compliance is made.

5. In addition to the above submissions vis‑a‑vis the maintainability the learned counsel also argued on merits and tried to establish, a prima facie case, balance of convenience and irreparable loss in favour of appellant.

6. The learned counsel for respondent in support of his preliminary objection also relied upon the judgment cited by opposite‑party and refuted the contentions of learned counsel for appellant with reference to record, and supported the impugned order.

7. As regard the preliminary objection it would be advantageous to reproduce Order XLIII, Rule 3 of the C.P.C. which reads 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 alongwith a copy of the order appealed against and obtain an acknowledgement of receipt thereof for the information of the Appellate Court either personally or through registered post acknowledgement due and the postal or other receipt shall be filed with the memorandum of appeal for the record of the Appellate 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." This provision was brought on the book through Ordinance X of 1980. By using I the word "shall" the intention of legislation is clear that its compliance is mandatory. The non‑compliance of a prerequisite mandatory provision takes away the right of appqal. The insertion of Rule 3 in Order XLIII had provided a right to the party in whose favour an interlocutory order is passed to defend the same in appeal and the aggrieved appellant should not take benefit of one‑sided presentation of submission to undo an interlocutory order. Had the appellant served a notice under Order XLIII, Rule 3, C.P.C. upon respondent A before filing the instant appeal there was a reasonable possibility that he should not get ad interim status quo in the very first hearing when his appeal was not yet admitted for hearing. The second analogy in the newly‑inserted provision appears to provide a safeguard against the delaying tactics of a party. The non‑compliance of under discussion provision of law will be fatal for entertainment of appeals against interlocutory orders. Since both the learned counsel have relied upon PLD 1983 SC 693 wherein the causes and effect of Order XLIII, Rule 3 of the C.P.C. have debatedly been thrashed, it would be better to reproduce the dictum laid therein for guidance in future:‑‑ "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. Sub‑rule (2) of Rule 3 provides that on receipt of the notice referred to in sub‑rule (1), the respondent may, with the permission 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. 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, inutile 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 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 acknowledgment receipt should not be entertained."

8. In view of the dictum laid down by Supreme Court of Pakistan as reproduced above this appeal is not maintainable.

9. Even on facts appellant has got no prima facie case. The appellant in his letter, dated 8‑7‑1996 with reference to disputed development charges addressed to respondent, copy placed on record, it was undertaken that efforts are being made to clear out remaining outstanding S.D.A. dues on priority basis. Thus, appellant has accepted his liability to pay the disputed outstanding dues of respondent. The contention that due to completion of development work in the Project/area development charges are no more required to be charged is an issue sub judice,and unless resolved by the trial Court, cannot be considered for grant of interim relief. On the face of record unless otherwise proved appellant is bound by the terms of provisional allotment order, dated 10‑3‑1987, whereby appellant is required to pay development charges without any limit of time. The relevant part reads as under:‑‑ "A sum of Rs.1,000 per acre per year will be recovered from you as infrastructural industrial estate Development Charges. These charges are subject to alteration/enhancement by the Authority as and when deemed proper. "

10. It was stated at the Bar that development work in the industrial estate is a work of permanent nature irrespective of completion of construction work in any or all the industrial units. The development charges are being charged from the industrial units without any discrimination.

11. For the reasons recorded above the instant F.A.O. alongwith C.M. are dismissed with no order as to costs. Q.M.H./282/P Petition dismissed