' FAZAL-E-MIP AN CHAUHAN, J.--- Facts necessary for the disposal of this civil revision are that, the plaintiff (hereinafter' called as respondent No,1) filed a suit for declaration and possession through partition with permanent injunction against the petitioners with the contention that, the properties fully described in para. No,2 of the plaint, were owned by Rashida Begum predecessor-in-interest of the parties and after her death, both the parties were entitled to get partitioned the same, as respondent No,1, being real son of Rashida Begum, is entitled to get 1/8th share, out of the property, left by the deceased. According to respondent No,1, the properties have not been partitioned in between the parties and the petitioners are intended to alienate the same.
' Along with the suit, respondent No,1 filed an application under Order XXXIX, rules 1 and 2, C.F.C.
Restraining the petitioners from alienating the disputed property, mentioned in para. No,2 of the plaint, till the final decision of main suit.
2. The petitioners/respondents were summoned, who appeared and filed their written statement and written reply to the application, contested the suit on legal and factual points, controverting the averments made in the plaint that, Rashida Begum, predecessor-ininterest of the parties was not the owner of the properties, mentioned in para. No,2 of the plaint, rather the same were alienated by her in favour of the petitioners, as such, question of partition of the properties does not arise.
3. The learned trial Court, vide order, dated 19-5-2005, dismissed the application under Order XXXIX, rules I and 2, 'C.P.C., filed by respondent No,l. Being aggrieved respondent preferred an appeal against the above-said order, which was accepted by the learned lower Appellate Court vide judgment, dated 28-10-2005 and the case was remanded, hence, this revision petition.
4. Learned counsel for the petitioners argued that, the impugned order, dated 28-10-2005, has been passed by the learned lower Appellate Court arbitrarily and committed material irregularities and illegality; the findings of the learned lower Appellate Court prejudiced the case of the petitioners, which is against the principle of natural justice as the appeal filed by respondent No,1/plaintiff was not maintainable in view of the provisions contained in Order XLIII, rule 3, C.P.C., but, the learned lower Appellate Court has not bothered to follow the law, laid down by the superior Courts; the learned lower Appellate Court has failed to appreciate the order, judgment, compromise deed and the statements made by the parties before the Civil Court regarding the property, in dispute, and the entitlement of late Haji Malik Ali Asghar, Malik Maqsood Asghar and Malik Mehboob Asghar Rabbani, as compared to oral submission of respondent No,1, but the learned lower Appellate Court by ignoring the .Principles laid down by the superior courts that, during hearing of appeal against interlocutory order, the Appellate Court should not observe about the merits of the case.
5. Conversely, learned counsel for respondent No,1 has vehemently opposed this civil revision and supported the impugned judgment, dated 28-10-2005, passed by the learned lower Appellate Court. It is argued that, main stress of learned counsel for the petitioners was that, the learned lower Appellate Court by entertaining the appeal filed against interim order, committed material illegality, as the same was not maintainable for lack of service of statutory notice as required under Order XLIII, rule 3, C.P.C. Before filing of appeal. This argument has no force or bearing. The petitioners, who were respondents/defendants in the trial Court appeared before the Court and when the appeal had gone through the stage of admission and question of lack of service of notice in terms of Order XLIII, rule 3, C.P.C. Is of no significance. Further argued that, appeal before admission cannot be dismissed for non-compliance with statutory provisions of Order XLIII, rule 3, C.P.C., particularly, when the respondents entered appearance to contest the appeal. Reliance is placed on Ch. Bashir Ahmed and others v. Province of Punjab and others 1991 CLC 1263 (Lahore), Elite D. Silva v. Dilawar Hussain 1993 CLC 361 (Karachi), Messrs Nasir Metal Crafts (Pvt.) Ltd. Through Chief Executive v. Zasha through Chief Executive and 2 others 1997 M LD 1910 (Lahore), Oil and Gas Development Corporation Ltd., Pakistan v. Claugh Engineering Ltd. Through Local Representative Mr. Martin Harris 1999 M LD 254 (Lahore) and Salahuddin v. Syed Mansoor Ali Shah and others 1997 SCM R 414.
6. I have heard learned counsel for the parties, perused the impugned judgment and pleadings of the parties. In the application under Order XXXIX, rules 1 and 2, C.P.C. In suit for partition seeking injunction vis-a-vis, the petitioners/respondents not to alienate or transfer specific portion of the property in their possession before the same is partitioned. The petitioners entered appearance, filed written statement controverting the stance taken in the plaint, as well as, in the above-said application. Factual points were raised that, Mst. Rashida Begum, predecessor-in-interest of the parties, was the owner of the parties, mentioned in para. No,2 of the plaint, rather the same was alienated by her in favour of the respondents, thus, question of partition of the properties does not arise. The learned trial Court, vide order, dated 19-5-2005, dismissed the application under Order XXXIX, rules 1 and 2, C.P.C. Being aggrieved of the same,. Respondent No,1 plaintiff filed Civil Appeal No,17 of 2005, which was admitted for regular hearing and the notices were issued in the name of the respondents, who entered appearance. After hearing the arguments of learned counsel for the parties on facts and the law, the learned lower Appellate Court, vide judgment, dated 28-10-2005, proceeded to hold that, appeal cannot be defeated merely because of non-compliance of the provisions of Order XLIII, rule 3, C.P.C., because the respondents/petitioners received notices, after admission of appeal and entered appearance, thus, service of notice prior to hearing of appeal became ineffective and the same has no force. However, while disposing of the appeal on merits, the appeal was accepted and it was ordered that, the parties to the suit will not alienate any specific portion of the disputed property till the final decision of main suit, however, they were allowed to alienate their share in the disputed property.
7. The observation of learned lower Appellate Court that, lack of service on notice in terms of Order XLIII, rule 3, C.P.C. Is of no legal significance after admission of the appeal and the same should not be dismissed for non-compliance with the provisions of Order XLIII, rule 3, C.P.C. In the case-law, cited by learned counsel for respondent No,1, in several cases by this Court, as well as by the Honourable Supreme Court of Pakistan in 1997 SCM R 414 (supra), wherein it has been observed that, respondent being duly represented before admission of appeal, the object of service on the respondent under Order XLIII, rule 3, C.P.C. Before filing of appeal was met with. In 1997 M LD 1910 (Lahore) and 1999 M LD 254 (Lahore) (referred above), it has been held that, noncompliance with provisions of Order XLIII, rule 3, C.P.C. Is paled into insignificance after admission of the appeal.
' So far as on merits of the case, judgment passed by the learned lower Appellate Court restraining both the parties not to alienate any specific portion of the disputed property in their possession till the decision of the suit is not in contravention of any law, but rather meet the requirement of law to preserve the property till the same is partitioned by metes and bounds by the Court, according to the shares.
8. For the foregoing reasons, there is no merit in this civil revision and the same is dismissed.