Ch. BASHIR AHMED and others vs PROVINCE OF PUNJAB and others

' The relevant facts which gave rise to the present revision petition are that Ch. Bashir Ahmed and 4 others, hereinafter called the petitioners, instituted a suit for declaration and consequential relief against the Province of Punjab and 5 others, hereinafter called the respondents. Alongwith the suit they moved an application for the issuance of temporary injunction. The respondents resisted the said application and the learned trial Court vide order dated 30,9-1986 dismissed the same.

Feeling aggrieved the petitioners went in appeal. On 5-5-1987 this appeal, however, was dismissed by the learned Additional District Judge, Sargodha on the ground that prior notice under rule 3, Order XLIII, C.P.C. Had not been served on the respondents. In this regard he relied on Mrs. Dino Manekji Chinoy and 8 others v. Muhammad Matin (PLD 1983 SC 693) and Muhammad Siddique v.

Boota (PLD 1985, Lah. 243). Feeling aggrieved the petitioners have come up in revision.

2. I have heard the parties' learned counsel and have also gone through the material available on record.

3. It is an admitted fact that the appeal instituted by the petitioners had been admitted to regular hearing by the learned Additional District Judge and thereafter on an objection raised by the learned counsel for the respondents the appeal was dismissed on the ground that the prior notice as envisaged under rule 3, Order XLIII, C.P.C. Had not been served on the respondents. The present revision petition was earlier heard by my learned brother Malik Muhammad Qayyum, J., who noticed that various High Courts of the country, including our own, had divergence of opinion over the interpretation of the dictum laid down by the Supreme Court in the case of Mrs. Dino Menekji Chinoy. Some of the judgments, to which his Lordship referred are Siraj Din v. Province of Punjab (1984 CLC 1287), Muhammd Siddique v. Boota (PLD 1985 Lah.243), Ghulam Rasool v. Mst. Fatima (1987 CLC 1177, Muhammad Ramzan and another v. Haji Karim Bakhsh and 5 others (1988 CLC 448), Haji Suleman Gowawala and Sons Limited v. Usman and 3 others (1985 CLC 168), Nazir Ahmad Jagirani Balouch v. Province of Sind (1987 CLC 1750). The case, therefore, was referred to my Lord the Chief Justice for constituting a larger Bench so that the `divergence of opinion was authoritatively settled'. The matter was heard by a Division Bench of this Court of which I also happened to be a member. The precise question which came up for determination before the said Bench was as to whether an appeal against the interim order passed in a pending suit could be dismissed, after its admission by appellate Court, for non-compliance with the provisions of Order XLIII, rule 3, C.P.C.. The Division Bench vide judgment dated 17-12-1990 which is now reported as 1990 MLD 986, held that: "Service of previous notice, as observed by the Supreme Court, is meant to avoid delay that is occasioned in issuing notice to and having it served on the respondent by the Court and to afford an opportunity to the respondent to contest the admission of the appeal and seek its dismissal in limine. Of course the respondent has no unqualified right to enter appearance at limine stage to contest the appeal and seek its dismissal; he can do so, as it transpires from sub-rule (2) of rule 3, Order XLIII, only with the permission of the Court, exercise of right being dependent upon the grant of permission by the Court. Rule 3 is evidently intended to cater for the hearing of appeal at limine stage; its application cannot be stretched to post-admission stage of the appeal. As discussed in Muhammad Ramzan v. Karim Bakhsh (1988 CLC 448) wrong entertainment of appeal by the Court or by its officers and admission thereof would not adversely recoil upon the appellant for he is not to be penalised for any act or omission of the Court. The maxim actus curiae meminem gravabit (an act of the Court shall prejudice no man) would be squarely applicable to and cover his case.

The utility of giving previous notice of filing of appeal is meant to be restricted to the stage of preliminary hearing of the appeal and is not to have any further effect once the appeal has crossed that stage and has been admitted for regular hearing; thereafter the appeal is to be heard and decided on merits. It follows that after its admission the appeal cannot be dismissed for noncompliance with the provisions of Order XLIII, rule 3 of the Code of Civil Procedure."

It is thus settled that an appeal once admitted to regular hearing could not be dismissed on the ground that the provisions of rule 3, Order XLIII, C.P.C. Had A not been complied with. The impugned order, therefore, is not sustainable. I, therefore, accept this revision, set aside the impugned order dated 5-5-1987 passed by the learned Additional District Judge, Sargodha and remand the case to him for deciding the appeal afresh on merits after giving reasonable opportunity to the parties of being heard.