YASIN vs IBRAHIM And Other
This is a petition for special leave to appeal directed against the order of the Lahore High Court, whereby a learned Single Judge in revisional jurisdiction vacated the temporary injunction granted to the petitioner by the District Judge, Vehari. The petitioner had filed a civil suit challenging an order of the Divisional Canal Officer allowing private respondents to draw water from a canal outlet used by the petitioner. The High Court had set aside the District Judge's order granting a status quo solely on the ground that the petitioner failed to serve a pre-appeal notice under rule 3(1) of Order XLIII of the Code of Civil Procedure. The core legal question before the Supreme Court was whether the required notice under Order XLIII Rule 3(1) of the Code of Civil Procedure 1908 was actually served prior to filing the appeal. The Supreme Court held that the petitioner's contention that notice was indeed served, supported by a postal acknowledgment receipt and statements in the memorandum of appeal, required detailed examination. Consequently, the Court granted leave to appeal, directed the maintenance of status quo during the pendency of the appeal, and ordered security.
- Whether a temporary injunction granted by a District Judge can be set aside in revision solely on the ground of non-service of notice under Order XLIII Rule 3(1) of the Code of Civil Procedure 1908?
- Does the production of a postal acknowledgment receipt substantiate the service of notice prior to filing an appeal?
- Whether leave to appeal should be granted when a question of fact regarding the service of a mandatory pre-appeal notice requires examination?
- Rule 3(1), Order XLIII, Code of Civil Procedure 1908
ORDER
SAAD SAOOD JAN, J.--This is a petition for special leave to appeal from the order dated 24-3-1987 of the Lahore High Court whereby in revisional jurisdiction a learned Single Judge vacated the temporary injunction granted by the District Judge, Vehari to the petitioner.
2. The petitioner filed a civil suit to challenge the legality of the order of the Divisional Canal Officer whereby he had allowed respondents Nos. l to 3 to draw water from canal outlet which was being used by the petitioner. Alongwith the suit he also applied for a temporary injunction for suspension of the order of the Divisional Canal Officer. The prayer for interim relief was rejected by the trial Court whereupon, he preferred an appeal before the District Judge. The learned District Judge accepted the appeal and directed the maintenance of status quo with regard to use of the outlet.
Respondents Nos. l to 3 challenged the order of the District Judge in revision before the High Court.
A learned Single Judge in the High Court accepted the revision petition and set aside the order of the District Judge solely on the ground that before preferring the appeal the petitioner had not served a notice upon respondents Nos. l to 3 as required by rule 3(1) of Order XLIII of the Code of Civil Procedure.
3. It is contended on behalf of the petitioner that before lodging the appeal the petitioner had in fact served a notice upon respondents Nos. l to 3 under rule 3(1), ibid, and that the learned Single Judge was misinformed in this regard. In support of this contention the learned counsel has placed on record a photostat copy of the postal acknowledgment receipt. He also refers to his memorandum of appeal before the District Judge wherein it was specifically mentioned that a notice had been served upon the respondents.
4. The contention raised on behalf of the petitioner needs examination. Leave to appeal is granted.
Security in the sum of Rs.2,500. The appeal may be made ready for hearing on the present record with permission to the parties to file additional documents, if any. Status quo to be maintained during the pendency of the appeal which may be listed for hearing within three months.