MUHAMMAD SARWA Versus FATEH MUHAMMAD

ORDER

This order shall dispose of C.M.No.3428/C of 1986, which is a petition made by Fateh Muhammad and others. They are respondents in, an appeal, namely, F.A.0. No.122 of 1985 and will hereinafter be referred to as the respondents. The said appeal was preferred by Muhammad Sarwar and others, hereinafter referred to as the appellants, against *the order of remand passed by an Additional District Judge. Prayer made by, the respondents in their above petition was that since the appeal was filed without serving them with a notice, under Order XLIII, rule 3 of the Code of Civil Procedure, it may be dismissed. On the other hand, it was urged by learned counsel for the appellants that the respondents had notice of the appeal before it was admitted to a regular hearing and, therefore, non‑service of the said notice on them by the appellants was of no consequence. It was maintained by him that the respondents had also filed a separate appeal, namely, F.A.0.68 of 1985 against the above order of the learned Additional District Judge and since both the appeals were ordered to be heard together and were admitted to regular hearing on the same date, the respondents had an opportunity to oppose the admission of the appeal sought to be dismissed.

2. Litigation between the parties started with a suit for pre‑emption brought by the respondents against the appellants. As it was resisted by the appellants, number of issues were framed. Ultimately, the suit was decreed by the trial Court. The appellants, therefore, went in appeal before the learned Additional District Judge who reversed findings of the learned trial Court on certain issues and remanded the suit t& the learned trial Court for fresh decision. Feeling aggrieved by the order of remand, the respondents, who had succeeded before the learned trial Court, filed F.A.0. No.68 of 1985, on 11th April, 1985. It was placed before my learned brother, Muhammad Afzal Lone, J.,, who summoned the appellants (respondents in F.A.0. No.68 of 1985) for hearing at the limine stage. Record was also ordered to be requisitioned'. Proceedings before the learned trial Court too were stayed subject to notice. Appellants, who are respondents in F.A.0. No.68 of 1985, filed cross‑objections in the form of C.M.No.2299/C of 1985, on 25th June, 1985 and the same were ordered to be fixed alongwith F.A.0, No.68 of 1985.

3. F. A. 0. 122 of 1985 was filed by the appellants on 19th May, 1985. It was listed before me on 30th September, 1985 when it was pointed out by their learned counsel that it deserved to be heard alongwith F.A.0. No.68 of 1985. It was, therefore directed by me that both the appeals shall be fixed together as desired.

4. On 22nd April, 1986 both the appeals came up before me but as learned counsel for appellants in F.A.O.No.68 of 1985 was not available, they were adjourned.

5. Thereafter, the appeals were fixed before me for 26th May, 1986. On that date, F.A.0. No.68 of 1985 was admitted to a regular hearing. Stay order already issued was confirmed after hearing both sides. In regard to the cross‑objections (C.M.No.2499/C of 1985) filed therein, the following order was passed:‑

"Learned counsel for the appellants submits that respondents have already filed an appeal, namely, F.A.O.No.122 of 1985 and, therefore, the cross‑objections submitted by them are not competent. This position is conceded by learned counsel for the respondents. In view of the appeal filed by them, learned counsel for the respondents does not press this C.M. It Is disposed of accordingly."

As for F A 0.122 of 1985, filed by the appellants, it was also admitted to regular hearing With the following order:‑

?F.A.O. No.68 of 1985, which is also directed against the impugned order has been admitted to a regular hearing. Admit. Notice.?

It was further directed that the F.A.0. No.122 of 1985 will be heard alongwith F.A.0. No.68 of 1985. Afterwards, the petition in hand was made by the respondents seeking dismissal of the appeal against them F.A.0. No.122 of 1985.

6. It is not disputed that no notice was served by the appellants, under Order XLIII, rule 3 of the Code of Civil Procedure, before filing their appeal F.A.0. 122 of 1985. gut the respondents did get notice thereof when it was directed by me on 30th September, 1985 that it shall be heard alongwith F.A.0. No.68 of 1985. As indicated above, F. A. 0. No. 122 of 1985 was also referred to by learned counsel for the respondents while objecting to the maintainability of the cross‑objections on 26th May, 1986. His plea was that since the appellants had filed a separate appeal F.A.0. No. 122 of 1985, cross‑objections in the respondents' appeal F.A.0. No.68 of 1985 were not competent. This position was conceded by learned counsel for the appellants. He, therefore, decided not to press the cross‑objections which were disposed of accordingly. At that stage, no objection was raised by the respondents to the maintainability of appeal against them, namely, F.A.0. 122 of 1985 on the‑ground that it had been preferred without, serving. them with notice under Order XLIII, rule 3 of the Code of Civil Procedure. Had they done so, the appellants might have decided to press the cross‑objections by withdrawing their appeal which is now sought to be dismissed. All this shows that the respondents are playing hide and seek with the appellants. In other words, they have filed the petition in hand with unclean hands.

7. Although it was ruled by the Supreme Court in the case reported as Mrs. Dino Manekji Chinoy and 8 others v. Muhammad Matin P L D 1983 S C 693 that provisions of Order XLIII, rule 3 of the Code of Civil Procedure are mandatory in nature yet it was also observed A that "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 utilised as 'stepping stones, rather than we might add, as stumbling blocks; the right of 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." In the instant case, provisions of Order XLIII, . rule 3 of the Code of Civil Procedure were substantially complied[ with when it was directed by me on 30th September, 1985 that F. A. 0. No.122 of 1985, filed by the appellants, shall be neared alongwith win F.A.0. No.68 of 1985, instituted by the respondents. Both the appeals were taker, up together on 22nd April, 1986 as well as on 26th May, 1986. On 26th May, 1986, the respondents, appeal was first admitted to regular hearing and then the appellants, appeal was so admitted due to the admission of the respondents, appeal, without any objection by the respondents. Learned counsel for the respondents has failed to show that any prejudice was caused to them due to non‑service of notice by the appellants. As pointed out earlier, both the appeals are directed against the same order. Circumstances of the present case, therefore, do not justify the dismissal of the appeal F.A.0. No.122 of 1985 on the technical ground that it was preferred by the appellants without serving the respondents with notice under Order XLIII, rule 3 of the Code of Civil Procedure. To hold otherwise, will amount to denying justice on the score of technicalities.

8. Resultantly, this petition fails and is, accordingly, dismissed.

9. This appeal shall now be fixed for final hearing alongwith F.A.O.No. 68 of‑1985, as already ordered.

A.A./M‑634/L ? ?????????????????????????????????? Petition dismissed.