MUHAMMAD RAMZAN Versus KARIM BAKHSH

ORDER

Petitioners brought two suits for possession through pre‑emption of certain agricultural lands situated in village Kotla Baqir Shah, tehsil Ahmadpur East, district Bahawalpur, which had been the subject of two independent sales made in favour of the respective respondents. Therein they maintained two separate applications for issuance of temporary injunctions under Order XXXIX, Rule 1 of the C.P.C. to restrain the raising of constructions by the vendees on the lands forming the subject‑matter of their suits. Respective vendees contested the suits by denying the claim of the plaintiffs and issuance of temporary injunctions was resisted by means of written replies dated 4‑11‑1986 with the submissions that the walls of the desired constructions had already been raised to the height of roofs which are in need only of being covered. Whereas the suits appear to have still to go through trial, by his similarly worded two independent orders passed on 11‑12‑1986 in the respective matters, learned trial Judge refused to issue the temporary injunctions with the observation:‑

"After (sic‑‑If ?) vendee makes any improvement before he comes to know about pendency of suit for pre‑emption, pre‑emptor is bound to reimburse him for cost of improvement made before that time but if vendee persists in making the improvement after attaining knowledge about suit for pre‑emption he does so at his risk and cannot claim reimbursement. In such case vendee can only be allowed to take away or remove material which he used in making improvement provided, it is separable. Vendee cannot be restrained from making improvement because it would interfere with vendee's rights to enjoy disputed property. So, the pre‑emptor does not suffer any loss or injury for refusal to issue injunction."

He concluded that the considerations relating to balance of convenience and irreparable loss are not in favour of issuance of temporary injunctions and consequently dismissed the petitions on 11‑12‑1986.

2. Petitioners preferred two appeals there-against on 22‑12‑1986 in the District Court whereto they appended postal‑‑receipts about issuance of notices on 21‑12‑1986 to the counsel for respondents to meet the requirements of Order XLIII, Rule 3 of the C.P.C. and it was mentioned in the memos. of the appeals that the required notices alongwith the copies of the grounds of appeals and the impugned orders had been dispatched through registered‑post.

Both the appeals appear to have been entertained in the office without any objection and seem to have also covered the limine‑stages of hearing and they came up for final hearing before Mr. Dost Muhammad Khaimta, Additional District Judge, Bahawalpur before whom objections on behalf of the respondents were raised about the maintainability of the appeals (erroneously mentioned by him in his orders as objection to the maintainability of suits) on the ground that the requirements of rule 3 of Order XLII I of the C . P . C . had not been complied with inasmuch as the appellants had not served any notice by delivering copies of impugned orders and grounds of appeal and have neither furnished affidavits to such an effect nor produced any acknowledgement receipt in token of service thereof. For the appellants reliance was placed on the postal‑receipts to urge that due compliance of the law had been made. Despite the presence of the said postal‑receipts on the files, learned Additional District Judge was pursuaded to uphold the objection. He held that the appeals had been filed on 22‑12‑1986 and the postal‑receipts had been issued on 21‑12‑1986 which means that they had not obtained acknowledgement receipts from the respondents before presentation of their appeals and, holding the appeals to be incompetent, in view of Muhammad Siddique and 6 others v. Boota (P.L.D. 1985 Lahore 243) and Mrs. Dino Manekji Chinoy and others v. Muhammad Matin P.L.D. 1983 S.C. 693), proceeded to pass two separate identical orders dated 16‑12‑1987 to dismiss both the appeals without entering upon their merits.

3. They have now come up to this Court in these two Civil Revisions bearing Nos.87 and 88 of 1987/BWP. Since identical questions of law arise out of similar facts in these two Civil Revisions, therefore, they have been heard together and this order will deal with both of them.

4. There is no doubt that the view of the Additional District Judge is not correct and he was only ill‑advised to throw out the appeals at that stage, on such a ground. Relevant part of rule 3 Order XLIII C.P.C. is:‑

"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."

Section 27 of the General Clauses Act, X of 1897 provides:‑

"Where any Central tact or Regulation made after the commencement of this Act authorises or requires any document to be served by post, whether the expression "serve" or either of the expressions "give" or "send" or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre‑paying and posting by registered post, a letter containing the document, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post."

Rule 3 enjoins merely that an appellant will "give notice" by fulfilling the prescribed requirements and its mode has, however, not been prescribed so that he is free to adopt any legal manner for this purpose but it is not that he will also be responsible even for the actual service of a registered notice, if he elects to give notice by such a course, inasmuch as a legal presumption about service of a registered‑post notice, in the absence of proof to the contrary, also arises under the above‑quoted section 27 and a similar presumption arises even under Section 114 of the Evidence Act. It really surpasses comprehension as to how, in the presence of the above‑quoted section 27, may the Additional District Judge have thought that the postal‑receipts of issuance of registered letters did not prove that the required notices had been duly given?

It is not always possible for a litigant to exact an acknowledgement from his opponent with regard to service of notice and, in such a situation, he can legitimately approach the post‑office with the requisite notice for service on the opposite party because a post‑office can be taken to be acting as an agent for the parties. This position is clearly envisaged by sections 4 and 5 of the Contract Act and the illustrations appended there-under. In a case, reported as Westhead v. Sproson (30 L.J. Ex. 265), which was decided by the Court of Exchequer in England under the analogous provisions of law, it was held:

"It is settled law that an offer is deemed to be accepted when the letter of acceptance is posted, the post office is to be considered the common agent of both the parties."

In Bashir Ahmed v. Mumtaz Khan P L D 1965 Lah. 126, a question with regard to service of notice under Section 30 of the Displaced Persons (Compensation and Rehablitation) Act, 1958 had come up for consideration and on a' conspectus of decided cases it was held that a notice, if proved to be correctly addressed and posted, is presumed to have been received by the addressee. Actually, there are volumes of case‑law available on the subject and reference may usefully be made only to some of the old cases. In Harihar Benerji and others v . Ramshashi Roy and others (A . I . R 1918 Privy Council 102), it was held:

"If a letter properly directed, containing a notice to quit, is proved to have been put into the post office, it is presumed that the letter reached its destination at the proper time according to the regular course of business of the post office, and was received by the person to whom it was addressed and that presumption would apply with still greater force to letters which the sender has taken the precaution to register."

Yet another authority about due service being presumed to have been made from the moment of posting of a registered letter is Girish Chandra Ghose v. Kishore Mohan Das (A.I.R. 1920 Calcutta 287‑2), wherein it was laid down as under:‑

"The evidence proves that the notice was placed in a registered cover addressed to the defendant at his residence. It was taken to the post‑office, registered there and left in the custody of postal authorities. Therefore, under Section 114, Evidence Act, the letter having been properly placed in the custody of post‑office, the Court might presume that the letter reached the defendant."

In Gobinda Chandra Saha and another v. Dwarka Nath Patita (A.I.R. 1915 Calcutta 313), a similar presumption about delivery to the addressee in due course of post was held to arise under section 114 of the Evidence Act from post‑mark of date and place of posting which was held entitled to be presumed as genuine. Again, in Aburubammal‑Garnishee v. The Official Assignee of Madras AIR 1924 Mad. 214, it was held:‑

"The presumption is that a letter which is proved to be posted and posted to the right address is in fact received by the recipient."

To the same effect see also Kamakhya Narain Singh v. Khalik Ahmed and others A I R 1927 Pat. 305 and Sm . Hamangin Dassee v. Sm. Sarnalatika Dassee A I R 1940 Call. 227.

. The question about the service of notices through post has come up before the superior Courts for condsideration in a variety of circumstances, even where they had been received back endorsed with refusal of acceptance and although there is some conflict of judicial opinion as to whether or not it is necessary to prove the refusal of such a notice by means of direct evidence, yet, there is no dissension of views either with regard to such notice reaching the addressee in normal course or about the sufficiency of such a service.

In these cases, it is admitted that registered notices were so delivered in the post‑office one day before the institution of the appeals whereto receipts of their issuance were also appended. Hence, onus got shifted to the respondents to postitively prove the contrary which they did not discharge and it was wrong to have expected that they may have appended with their appeals even the acknowledgement‑receipts which are returned by the post‑office to the sender. Since a notice is deemed to have been given to the addressee as soon as it is handed over to the agent (a post‑office in this case), therefore, the receipts issued in that behalf, after receiving the relevant envelopes, were entitled to be considered the acknowledge-ments spoken of in Rule 3 (ibid). There is no reason why the principles laid down in the above‑cited cases may not have applied to the notices issued by the petitioners in pursuance of the requirements of rule 3 of Order XLIII of the C.P.C. Hence, the view) held by the Additional District Judge to the effect that compliance of law had not been made, is altogether unsustainable.

6. The question of giving notice before filing of appeals was relevant only upto the stage of their preliminary hearing and the appellate Judge was in error to have entertained the objection on 16‑2‑1987 when the respondents were in fact represented. At the time of final hearing the objections had lost efficacy because limine stage was over since long before and, there being no penal consequence provided at all by Rule 3 (ibid), no useful purpose could be served even in the appeals being taken up again from the preliminary stage by revoking the orders of admission passed in the absence of the respondents. Thus it, logically follows that an appeal cannot be thrown out without hearing at subsequent stages for such a reason. Rule 3 does not take away the right of filing appeal but merely subjects the exercise of such a right to the performance of a pre‑condition of giving notice, without which the appeal cannot be entertained. Hence, even at the limine stages of hearing of these appeals, in the presence of the said postal‑receipt of issuance, they could not have been dismissed without hearing and were rather entitled to be proceeded with so that the maximum that the Court could have done was to have postponed the consideration of the relevant appeals to, in the exercise of its judicial discretion, give adequate margin of time for the said notices to reach the‑ addressees in the normal course but the party could not be required to withhold the institution of appeals until after the service of notice is effected so that the returned acknowledgement receipts may be appended therewith.

In purporting to follow the two precedents, the appellate Judge does not appear to have perused either of those judgments. There is no reason at all mentioned in the Lahore case of Muhammad Siddique (Supra) for laying down that an appeal filed without giving statutory notice is liable to be dismissed despite its admission and the remark of that effect made in para 8 of the judgment is based on a mere concession of the counsel, so that this case cannot serve as an authority in support of the view of learned Additional District Judge. However, in the Supreme Court judgment delivered in the case of Dina Manekji (Supra), after emphasising the importance of issuing notice under rule 3, their Lordships have framed paras 19 and 20 in these terms:‑

"19. In the instant case, we observe that the learned Division Bench had issued a pre‑admission notice to Advocate of th.e 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 limine. No grievance, furthermore, was made by him to 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 utilised 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 1.963 SC 382 and Manager, J&K State Property in Pakistan v. Khuda Yar PLD 1975 SC 678.

20. On this view of the matter, we would uphold the decision of the learned Judges of the Division Bench to reject the preliminary objection and in finding that the appeal preferred before them by the respondent herein was liable to be disposed of on merits."

This precise question came up for consideration before a Division Bench of the High Court of Sind in Messrs Haji Suleman Gowawala & Sons Ltd. v. Usman and 13 others 1985 CLC 168 and, after elaborately considering its different aspects, it was observed:‑

"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 PLD 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 coram 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 acknowledgement receipt should not be entertained".

Now it is 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 ante 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."

7. The foregoing manifests that the provisions of rule 3 (ibid) had been properly complied by the petitioners before filing their appeals in the District Court but even if they may have not done so, E their appeals could not be dismissed without consideration at the stage of final hearing, on account merely of the assumed default in compliance. In this context, it will be instructive to refer also to the following observations appearing in paragraph 18 of the Supreme Court judgment in Dino Manekji's case (supra):‑

"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 acknowledgement receipt should not be entertained."

8. Furnishig of an affidavit about giving of notice is or a statutory requirement and it is required to be filed under the law declared by their Lordships of the Supreme Court which has a binding effect under Article 189 of the Constitution. The context in which this I requirement of filing of affidavit has been enjoined, makes it abundantly clear that it has a two‑fold purpose to serve, firstly, that the counsel or the party concerned may get reminded of the need for giving notice and, secondly, that the Court may be thereupon satisfied that due compliance of the law has been made. Requirement about filing of affidavit is not indispensable and in the cases, as the present, wherein notice has actually been given, the filing of affidavit may not be insisted upon so that in such cases failure to file an affidavit would not have any adverse effect.

9. Thus far, I have demonstrated that the appeals of the petitioners had been properly filed after giving statutory notices through registered post and it was not their duty to have either got them served on the respondents or to have even waited for their service before filing of appeals which could not be thrown out without a hearing at the limine stage either due to their failure to produce the receipts of acknowledgement which are returned to the sender after service by the post‑office or even on account of their failure to furnish any affidavit about their having given such notices and, muchless, could they be so dismissed at the final stage, without a hearing, on the basis of the incorrect assumption that compliance of Rule 3 of Order XLIII had not been made by them. The same conclusion follows also from another angle of view, namely, that their Lordships of the Supreme Court have been pleased to lay it down as a duty of the officers responsible for receiving and scrutinizing appeals to require the appellant or his Advocate to submit an affidavit that he has given the required notice. In these cases office did not point out to the petitioners or their advocate the need for filing affidavits and entertained the appeals without raising any objection. Even the Additional District judge himself did not attend to the need at the time of their hearing at the limine stage. There can be no reason that if attention may have been adverted to the requirement at that stage then the defect, if any, may not have been rectified. Thus, the lapse, if any, was on the part of the Court and its officials which, it is well settled, could not be subsequently used as a trap for a party. The time‑old cardinal principle of administration of justice 'actus curiae neminem gravabit' i.e. "one of the first and highest duties of all Courts is to take care that the act of the Court does no injury to any of the suitors", was recognized by the Privy Council more than a century ago, in 1871 in Rodger v. Comptoir D' Escompte de Paris (7 Moo. P.C. (NS) 314) and has ever-since been followed in innumerable cases. See for instance, Jai Berham and others v Kaedarnath Marwari and others A I R 1922 PC 269; Nalini Kanta Roy v. Kamaraddi and others AIR 1933 Cal. 239; S.N. Banerji and another v. Kuchwar Lime and Stone Co. , Ltd. (in liquidation) and another AIR 1941 PC 128; Shanti Lal and others v. Firm Hira Lal‑Sheo Narain through Shiv Karan Das and others A I R 1941 Lah. 402 and there are many others down to date. In this context, the term 'Court' has been held to also include its officials. In this way, the failure on the part of the Court of the Additional District Judge and its officials, to raise a timely‑objection to the need for compliance, could not be pressed into service after the appeals had been admitted to regular hearing, to dismiss them without being heard on merits. Thus, in so, dismissing the appeals of the petitioners, learned Additional District) Judge has failed to exercise the jurisdiction by law vested in him for hearing of the appeals.

10. A question, however, arises as to whether it is necessary to send down the appeals for their being heard and decided afresh in accordance with the law because the appeals below, as also these civil revisions, had arisen out of interim orders. I have given anxious thought to this aspect of the matter and, for the reasons to be presently detailed, I have reached the conclusion that it is not either the proper course to adopt at this stage of the litigation nor is it even necessary to be so ordered on the basis merely of the finding reached about the jurisdictional error committed by the appellate Court below because exercise of revisional jurisdiction is discretionary and is not to be exercised either as a matter of mere course or in cases of every illegality not referable to exercise of jurisdiction, without regard to the substance of the matter.

The petitioners had moved for issuance of temporary injunctions by invoking the power of the trial Court under Order XXXIX, Rule 1 of the C.P.C. which, there is no doubt, can be exercised only upon a conclusion reached favourably to an applicant with regard to the considerations of prima facie case, balance of convenience and apprehension of suffering irreparable loss. Since the petitioners have not so for acquired any right or title in the land‑in suit where about they are still striving to have decrees passed to themselves, therefore, neither of these three considerations can be held to exist in their favour and learned trial Judge has rightly declined to issue the temporary injunctions under the power invoked by them and even, though the principle with regard to award of costs for improvements, against a successful pre‑emptor has been a little too broadly stated by the trial Judge, yet, his ultimate conclusion is not wrong. Actually, in the situation that the petitioners were placed, their proper remedy was to have applied for grant of temporary injunctions under the inherent power of the Court which is preserved by section 151 of the C.P.C. whereunder every Court has the power to pass appropriate 1 orders for preserving the subject of the lis. Petitioners did not have resort to that power and the one invoked by them could not be used in their aid by foresaking the technical requirements laid down for the purpose. In the course adopted by the petitioners, they placed themselves under a liability to not merely prove an existing right or interest in the suit land but also to establish the likelihood of having to suffer irreparable loss in the refusal of temporary injunction. Without a decree passed in favour of a pre‑emptor in terms of Order XX rule 14 of the C.P.C. and his complying with its conditions, he cannot be deemed invested with any right or title in the suit property. I Moreover, it is not easy to comprehend as to how may the conversion of an open land into a building be capable of causing irreparable loss to any one. Therefore, the petitioners have to be taken to have failed to establish the necessary conditions. They were only ill‑advised to have had resort to the provisions of Order XXXIX of the C.P.C. for grant of a temporary injunction, which relief could be secured to them under the inherent powers of the Court about the preservation of the present status of the suit‑property but they did not invoke that power.

11. In the above state of the cases of the petitioner, no useful purpose can be served in remitting their appeals for being decided afresh. For all the above‑stated reasons, neither of the two Civil Revisions have any merit and both of them are accordingly dismissed in limine.

A . A . / M‑513/L Revisions dismissed.