LAL JAN KHA TTAK, J. This revision petition is directed against the judgment dated 07.09.2020 of the learned Additional District Judge-V , Nowshera whereby the petitioner's appeal against the order dated 07.03.2020 of the learned Civil Judge-II, Nowshera has been dismissed.
2. Brief facts of the case are that the petitioner filed a suit against the respondents for declaration and permanent injunction in respect of the landed property , fully described in the heading of the plaint. Along with the plaint, he filed an application seeking therein interim relief restraining the respondents from raising construction on the disputed land. The learned trial court dismissed the application on 07.03.2020 where against petitioner preferred an appeal which too was dismissed through the order impugned herein.
3. Heard and record available gone through.
4. Perusal of the case record would show that the learned appellate court has dismissed the petitioner's appeal solely on the ground that he did not issue notice to the respondents for filing appeal as envisaged under Order 43 Rule 3 CPC. No doubt the petitioner has not issued any notice as mentioned above but it has been held by the Apex Court in a judgment reported in 1997 SCMR 414 that failure of the appellant to serve the respondents notice under Order 43 Rule 3 CPC would not be made a ground to dismiss his appeal if same is admitted and pursuant thereto notice is issued by the appellate court to the respondents for appearance. In the case in hand it reflects from the record that after filing the appeal , the learned appellate court issued notice of the same to the respondents who accordingly appeared and contested the appeal but same was dismissed for failure of the petitioner to act in line with the provisions of Order 43 Rule 3 CPC. On the eve of the respondents' appearance pursuant to the notice issued to them by the learned appellate court, the petitioner's appeal was to be decided on merit instead of its dismissal on technicalities which exercise of jurisdiction by the learned appellate court cannot be countenanced, as it has been held umpteenth times by the superior courts that to the possible extent a /is be decided on merit which is not the case in hand.
5. For what has been discussed above and following the dicta lad down by the Hon'ble Supreme Court of Pakistan in the ibid judgment, this appeal is accepted and by setting aside the impugned order dated 07.09.2020 the case is remanded to the learned appellate court for decision of the appeal on merit in accordance with law .