2022 PLP 1945 (YLR)
MARIAM AHMED — Petitioner Versus RAJ MUHAMMAD and 12 others — Respondents
| Citation | 2022 PLP 1945 (YLR) |
| Forum / Court | Peshawar |
| Bench Members | N/A |
| Parties | MARIAM AHMED — Petitioner Versus RAJ MUHAMMAD and 12 others — Respondents |
| Primary Law | Civil Procedure Code (V of 1908) |
Q1: What are the key laws and sections cited in 2022 PLP 1945 (YLR)?
This judgment primarily cites: Civil Procedure Code (V of 1908) as referenced in Pakistani case law index.
Q2: Which judicial bench decided the case 2022 PLP 1945 (YLR)?
The case was heard and decided by the Peshawar bench comprising: N/A.
Q3: What is the official citation format for this judgment on Pakistan Law Portal?
Cite this legal precedent as: 2022 PLP 1945 (YLR) (MARIAM AHMED — Petitioner Versus RAJ MUHAMMAD and 12 others — Respondents). Read the full summary and cross-referenced laws free on Pakistan Law Portal.
Laws Cited
Representation
- Syed Hamad Ali Shah for Petitioner.
- Imran for Respondent No.1.
Headnotes / Summary
O. XLIII, R. 3
Notice before presentation of appeal
Lis to be decided on merit
Petitioner filed a suit against respondents for declaration and permanent injunction along with an application seeking therein interim relief restraining respondents from raising construction
Trial Court dismissed the application
Petitioner preferred appeal which was also dismissed by Appellate Court on the sole ground that petitioner did not issue notice to respondents for filing appeal as envisaged under O.XLIII, R. 3, C.P.C.
Held, that failure of petitioner to serve notice to respondents under O. XLIII, R. 3 of C.P.C. would not be made a ground to dismiss petitioner's appeal if same was admitted and pursuant thereto notice was issued by appellate court to respondents for appearance
Record showed that after filing appeal appellate court issued notice of the same to respondents who accordingly appeared and contested appeal but same was dismissed for failure of petitioner to act in line with provisions of O. XLIII, R. 3 C.P.C.
Respondents appeared pursuant to notice issued to respondents by appellate court
High court directed that petitioner's appeal was to be decided on merit instead of its dismissal on technicalities which exercise of jurisdiction by appellate court could not be countenanced
Civil Revision was accepted.
Judgment & Decree
LAL JAN KHATTAK, J.
This revision petition is directed against the judgment dated 07.09.2020 of the learned Additional District Judge-V, Nowshera whereby the petitioner's appeal against the order dated 07.03.2020 of the learned Civil Judge-II, Nowshera has been dismissed.
2. Brief facts of the case are that the petitioner filed a suit against the respondents for declaration and permanent injunction in respect of the landed property, fully described in the heading of the plaint. Along with the plaint, he filed an application seeking therein interim relief restraining the respondents from raising construction on the disputed land. The learned trial court dismissed the application on 07.03.2020 whereagainst petitioner preferred an appeal which too was dismissed through the order impugned herein.
3. Heard and record available gone through.
4. Perusal of the case record would show that the learned appellate court has dismissed the petitioner's appeal solely on the ground that he did not issue notice to the respondents for filing appeal as envisaged under Order XLIII, Rule 3, C.P.C. No doubt the petitioner has not issued any notice as mentioned above but it has been held by the Apex Court in a judgment reported in 1997 SCMR 414 that failure of the appellant to serve the respondents notice under Order XLIII, Rule 3, C.P.C. would not be made a ground to dismiss his appeal if same is admitted and pursuant thereto notice is issued by the appellate court to the respondents for appearance. In the case in hand it reflects from the record that after filing the appeal, the learned appellate court issued notice of the same to the respondents who accordingly appeared and contested the appeal but same was dismissed for failure of the petitioner to act in line with the provisions of Order XLIII Rule 3, C.P.C. On the eve of the respondents' appearance pursuant to the notice issued to them by the learned appellate court, the petitioner's appeal was to be decided on merit instead of its dismissal on technicalities which exercise of jurisdiction by the learned appellate court cannot be countenanced, as it has been held umpteenth times by the superior courts that to the possible extent a lis be decided on merit which is not the case in hand.
5. For what has been discussed above and following the dicta lad down by the Hon'ble Supreme Court of Pakistan in the ibid judgment, this civil revision is accepted and by setting aside the impugned order dated 07.09.2020 the case is remanded to the learned appellate court for decision of the appeal on merit in accordance with law. MH/S-61/P Revision accepted.