SALAHUD DIN vs Syed MANSOOR ALI SHAH And Other
This matter concerns a petition for leave to appeal against a judgment of the Peshawar High Court, which dismissed the petitioner's First Appeal from Order (F.A.O.) due to the failure to serve a mandatory notice under Order 43, Rule 3 of the Code of Civil Procedure 1908. The core legal question was whether the dismissal of an appeal for non-compliance with the notice requirement is justified when the respondents have already entered an appearance and were represented before the High Court prior to the admission of the appeal. The Supreme Court held that the primary purpose of the notice requirement under Order 43, Rule 3 is to ensure the respondent is aware of the proceedings. Since the respondents were represented by counsel and appeared before the Division Bench before the appeal was admitted to regular hearing, the object of the statutory notice was satisfied. Consequently, the Court set aside the High Court's judgment, holding that an appellant cannot be non-suited on technical grounds when the underlying purpose of the procedural requirement has been effectively achieved through the respondent's actual participation.
- Does the failure to serve notice under Order 43, Rule 3 of the Code of Civil Procedure 1908 necessitate the dismissal of an appeal if the respondent has already appeared in the proceedings?
- Can an appeal be dismissed on technical grounds when the underlying purpose of a mandatory procedural notice has been satisfied?
- Does the appearance of a respondent's counsel before the admission of an appeal satisfy the requirement of notice under Order 43, Rule 3 of the Code of Civil Procedure 1908?
- Order 43, Rule 3, Code of Civil Procedure 1908
ORDER
1. SAIDUZZAMAN SIDDIQUI, J.---The petitioner is seeking leave to appeal against the judgment of a learned Division Bench of Peshawar High Court dated 3-10-1995 whereby the learned Judges of the Division Bench dismissed F.A.O. No.7 of 1995 filed by the petitioner on the ground that before filing the appeal, notice required under Order 43, Rule 3, C.P.C. Which is mandatory in nature, was not served by the appellant on the respondents.
2. The grant of leave is opposed in the case by the caveator and we have heard the learned counsel for the petitioner as well as caveator at length. The learned counsel for the petitioner has pointed out that although it was not mentioned in the memo. Of appeal filed before the High Court that a notice as required under Order 43, Rule 3, C.P.C. Has been served on the respondents in the matter but it is admitted position on record that the learned counsel for respondents had been appearing before the learned Division Bench after filing of the appeal. The learned counsel has invited our intention to the order-sheet dated 10-4-1995 and 26-4-1995 which show that Mr. Nisar Ahmed, Advocate, appeared in the appeal before the learned Judges of the Division Bench on behalf of respondents Nos. l and 2 in the case. The appeal was admitted for full hearing on 29-5-1995 and before that date appearance was put in on behalf of respondents in the case' before the learned Division Bench. In these circumstances, it is contended by the learned counsel for the petitioner that the object of serving notice under Order 43, Rule 3, C.P.C. Was fully served and achieved. The learned counsel for respondents concedes that respondents Nos. l and 2 were represented in the appeal filed by the petitioner before the learned Division Bench which was admitted to regular hearing by the Court. In these circumstances, the learned counsel for the respondents does not oppose acceptance of this petition and sending the case back to the High Court for decision on merits in accordance with the law. We are, otherwise, satisfied that as the respondents were duly represented before the learned Judges of the Division Bench before admission of the appeal, the object of serving a notice on the respondents under Order 43, Rule 3, C.P.C. Before filing of the appeal was fully met in the case and, therefore, the appellant could not be non-suited in the appeal on this ground. We, accordingly, convert this petition into appeal, accept the same and set aside the impugned judgment. The case is sent back to the learned Judges of Division Bench of Peshawar High Court for decision of the appeal on merits in accordance with the law. Both the learned counsel pray that the appeal may be directed to be disposed at an early date as the litigation between the parties is going on for quite some the. We hope that the learned Judges of.
3. Division Bench of Peshawar High Court will make every effort to dispose of this appeal as expeditiously as possible. There will, however, be no order as to costs in the circumstances of the case.
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