NOOR MUHAMMAD And Another vs Ch. LIAQUAT ALI KHAN

ORDER

This application has been filed by the respondent for dismissal of the appeal on the-ground that the mandatory provisions of Order 43 Rule 2 C.P.C. Have not been complied with.

2. The learned counsel for the applicant/respondent urged that the object of Order 43 Rule 3 was to afford an opportunity of being heard to the respondent at the pre-admission stage. In the present case, the appeal was filed in the High Court on 7-11-1989 and the notice was posted to the applicant on the same date which was received by him on 9-11-1989 while the appeal was admitted to regular hearing on 8-11-1989. Thus the applicant's valuable right of entering appearance and opposing admission of the appeal was infringed. He further contends that Noor Muhammad etc. Appellants had obtained the copy of the impugned order on 1-11-1989 and had sufficient time to serve a notice on the respondent but they deliberately avoided to do so and issued notice on the same date when the appeal was actually filed in the High Court. He further contends that even otherwise the notice was not accompanied by a copy of the memorandum of appeal or the impugned order and was no notice in the eye of law. He seeks dismissal of the appeal by placing reliance on Mrs. Dino Manekji Chinoy and 8 others v. Muhammad Matin (PLD 1983 SC 693), Siraj Din and others v. Province of Punjab (1984 CLC 1287), Muhammad Siddique and 6 others v. Boota (PLD 1985 Lahore 243) and Haji Muhammad Naeem and another v. Malik Ghulam Nabi and 5 others (PLD 1988 Quetta 9). On the other hand, the learned counsel for the appellants submits that the notice was issued to the respondent on his correct address and would be deemed to have been received by him. In this connection, he relied on Muhammad Ramzan and another v. Haji Karim Bakhsh and 5 others (1988 CLC 448). He further submits that there is nothing to show that any prejudice was caused to the respondent. He prays that the appeal having been admitted for regular hearing be disposed of on merits. Lastly, he submits that the consequence of dismissal of the appeal for non-compliance of the provisions of Order 43 Rule 3 of the C.P.C. Is not contemplated under the law. In this connection, he places reliance on Messrs Haji Suleman Gowawala & Sons Ltd v. Usman and 13 others (1985 CLC 168), Ghulam Rasul v. Mst. Fatima (1987 CLC 1177) and Muhammad Ramzan and another v. Haji Karim Bakhsh and 5 others (1988 CLC 448).

3. Admittedly, the notice in the present appeal was issued on the same date when the appeal was filed in the High Court and was actually received by the respondent on 9-11-1.988, one day after admission of the appeal for regular hearing. Thus, the respondent was deprived of an opportunity to appear and contest admission of the appeal. The law secures to the respondent, the right of ' being heard at the pre-admission stage under Order 43 Rule 3 of the C.P.C. If the said right is infringed, it would amount to a legal injury and prejudice would be presumed. The appellants not only filed the appeal without complying with the prerequisites for presentation of an appeal but also succeeded in obtaining a stay order against the sale of the disputed property. Thus, the right and interest of the respondent were definitely prejudiced. Now, the question is as to what should be the fate of the appeal which was filed and entertained without compliance of the provisions of order 43 Rule 3 of the C.P.C. I am of the considered opinion that the right of appeal which has been provided under Order 43 of the C.P.C. Cannot be defeated merely because of the non-compliance of the provisions of Order 43 Rule 3 of the C.P.C. The technicalities of law, as held in the case of Mrs Dino Manekji Chinoy and 8 others v. Muhammad Matin (PLD 1983 SC 693), are not meant to be a stumbling block in the way of enforcement of rights of the parties.

Admittedly, the respondent received the notice on 9-11-1988, though, as claimed by him, without a copy of the impugned order and the grounds of appeal. The admission of appeal ends of justice would be adequately met if the admission order was recalled and the appeal refixed for motion hearing in the presence of counsel of parties.

Mrs. Dino Manekji Chinoy and 8 others v. Muhammad Matin PLD 1983 SC 693 r.1.

PLD 1983 Kar. 387 ref.

(c) Civil Procedure Code (V tit' 1908)--- ---O.XLIII, R.3---Notice to respondent before filing appeal---Essential requirements---Although service of notice is the responsibility of postal authorities yet the law requires that acknowledgement receipt be annexed to the appeal in proof of the service having been effected-- -Appellant has, thus, ordinarily to wait till the service of notice as contemplated had been effected- --In cases involving great urgency a party may rile appeal with an affidavit for having sent a notice to respondent---Without compliance of such requirement of law, appeal cannot be entertained---After admission, however, appeal cannot be dismissed on the sole ground of mere technical non-compliance of the provisions of O.XLIII,R.3, C.P:C: In such a situation, adverse orders passed in the absence of respondent should be eliminated from the field and status quo ante, be restored for affording an opportunity of being heard to respondent---Where however, objection to non-compliance of the provisions of O.XLIII, R.3, C.P.C. Was waived by a party, or no adverse order was passed, or no interim relief granted or a case was thoroughly heard on merits then the same should be heard on merits.

(d) Civil Procedure Code (V of 1908)--- ---O.XLIII, R.3---No notice served on respondent, before admission of appeal----Effect---High Court recalled the admission order as also the interim order and ordered the appeal to be refixed for motion hearing.

Mian Munawar Hussain for Appellants.

Rafiq Javed Butt for Respondent.