' NASIM HASA/4 SHAH, J.-This petition is directed against the judgment dated 27-3-1983 passed by Division Bench of the High Court of Sind in High Court Appeal No, 111 of 1982, whereby the judgment dated 23-12-1982 of a learned Single Judge of the said High Court refusing the application for grant of a temporary injunction was set aside and a temporary injunction, on certain terms, was granted.
Petitioners Nos. 1 to 5 (who for the purposes of convenience may be referred to as the "owners" and petitioners Nos. 6 to 9, who may also for the same reason be referred to as the "purchasers") are aggrieved by the impugned judgment of the Division Bench of the High Court, inasmuch as, on the appeal preferred by the respondent, the registration of the sale made by the "owners" viz. Petitioned Nos. 1 to 5 in favor of the "purchasers" viz. Petitioners Nos. 6 to 9 on 9-7-1980 has, inter alia, been restrained.
2. The facts, which form the background to this dispute, are that the predecessor-in-interest of the "owners" had on 5-12-1962 entered into a registered lease with five persons including Muhammad Matin, respondent/ plaintiff herein (hereinafter referred to as the lessees) for a period of 20 years, The share of the respondent/plaintiff in the lease was about 10 per cent. According to clause 16 of the said lease deed, the lessors were entitled to sell the property at any time during the pendency of the lease, provided that the first preference to by the said property was to be given to the lessees at the price offered by any party which the lessors were desirous of accepting. According to clause 17 of the same lease deed, if the lessees did not pay the rent for a period of six months the lessors had the right to terminate the lease and to re-enter upon the said property and take possession. Under clause 21 any dispute arising between the parties was to be referred to Arbitration. -
3. On 14-4-1975, three of the owners filed an application under section 20 of the Arbitration Act against all the lessees on the ground that the lessees had defaulted in payment of the rent and in complying with the other conditions of the lease. This application was registered as Suit No, 254 of 1975. As a measure of interim relief an application was also filed by them under section 41 of the Arbitration Act, for appointment of a Receiver. The allegations made in the application under section 20 of the Arbitration Act as well as in the application for interim relief under section 41 were duly controverted by the respondent herein. The said arbitration suit is still pending and has not so far been decided. However, on the application for interim relief, the Nazir of the High Court was appointed as a Receiver of the property and is still functioning as such.
4. Coming now to the circumstances, in which the instant dispute has arisen, we note that a letter was addressed by the Advocate of the owners on 8-2-1979 to all the lessees, as required by clause 16 of the lease deed dated 5-12-1962, informing them that a purchaser was willing to purchase the property for Rs, 15 lacs and was also prepared to complete the sale within one month and that the lessees were being offered the first choice to by the said property as per the terms of clause 16 of the lease deed dated 5-12-1962. While all the other lessees declined this offer, the respondent/plaintiff, vide his letter dated 19-2-1979, expressed his willingness to purchase the said property at Rs, 15 lacs. However, he did not say anything about completing the sale within one month, which, according to the owners, was the period within which the party, who had made them the offer, was prepared to complete the sale.
5. The Advocate of the respondent, by his letter dated 22-2-1979, therefore, in response, pointed out this omission and insisted upon the completion of the sale within one month. Several letters were exchanged between the parties thereafter. The last letter in the series was written by the Advocate of the respondent/plaintiff on 8-5-1979, wherein he stated that :- "If the details as requested for are not received within a week my client shall understand that your clients have entered into an agreement of sale with any other party in respect of the said property."
6. The owners, considering this reply to be a rejection of, the 'first preference given to them, entered into an agreement of sale with the "purchasers" on 9-7-1980 and the "Purchasers" paid the entire sale consideration to the owners" on 16-7-1980.
7. On 25-2-1981, the respondent/plaintiff herein filed Suit No, 115 of 1981 in the Sind High Court on the original side against the original owners alone for specific performance and permanent injunction asserting that the offer made by the "owners by their first letter dated 8-2-1979 under clause 16 of the Lease Deed dated 5-12.1962 hiving been accepted by the respondent/plaintiff on 19-2-1979 a concluded contract of sale was arrived at on the said date and that the defendants (Petitioners Nos. 1 to 5 herein) were bound to take all the necessary steps for conveying and registering the property in favour of the plaintiff/respondent and that no agreement allegedly made or intended to he made before or after the acceptance could be entered. An application under Order XXXIX, rules 1 and 2, C. P. C. Read with section 151, C. P. C. Was also filed with a prayer to restrain the defendants from selling, disposing of or alienating or encumbering or in any other way affecting the title over the property till the disposal of the suit. Later on, the "purchasers" were also added as defendants.
8. The learned Single Judge trying the suit dismissed the application for stay vide his order dated 2342-1982 holding, inter alia, that the plaintiff had failed to establish a prima facie case and that on the basis of the material on record it was doubtful that a concluded contract could be spelt out between the plaintiff and the owners as the parties were at variance with regard to the essential terms of the contract and as such no injunction could be granted. The silence of the plaintiff from 8-5-1979 (when the last letter was written by his Advocate) till 25-2-1981 (the date on which the suit was filed) was regarded as a circumstance showing the disinterestedness of the plaintiff. He also opined that the balance of convenience was not in his favour and that no irreparable loss was likely to be caused to him by the refusal of the injunction.
9. Aggrieved by the above order of the learned Single Judge, the respondent/plaintiff filed High Court Appeal No, 111 of 1982 under section 104, C. P. C. Read with section 15 of the Ordinance X of 1980. The learned Judges of the Division Bench, by a lengthy order dated 27-3-1983, allowed the appeal holding that the plaintiff/respondent had made out a prima facie case that there was a legal and valid contract between the parties. The balance of convenience was also in his favour and that he was entitled to interim relief. As regards the preliminary objection taken by the petitioners herein that the High Court Appeal filed against the refusal of the temporary injunction was not maintainable, in so far as no notice was given by the respondent/plaintiff to the defendants in respect of the filing of the appeal against an interlocutory order in a pending suit and as such there was a clear non-compliance of the mandatory provisions of Order XLIII, rule 3, C.
P. C. Requiring notice about presentation of such an appeal, it was held that the provisions of Order XLIII, rule 3, C. P. C. Were a "rule of convenience and expediency". The purpose of the said rule, it was observed, was to avoid wastage of time and if this had not occurred, the non-compliance of the rule did not evitably result in the dismissal of the appeal. It was further found that in the present case no prejudice was caused to the petitioners. In the light of these findings, the objection that the appeal was not maintainable was overruled. In the result, the order of the learned Single Judge was set aside and an injunction was grantee in favour of the plaintiff/respondent restraining the petitioners herein from doing or causing to be done any act or deed in respect of the title, possession or other interest relating to the property which was subject-matter of the dispute. The plaintiff/respondent was also directed to deposit a sum of Rs, 15 Lacs in the Court within two weeks failing which the order granting the injunction would stand vacated automatically. A request was also made to the learned Single Judge sitting on the original side "to proceed with . As much speed as possible so as to dispose of the main case within eight months". The Receiver appointed by the learned Single Judge in the Arbitration suit was allowed to continue functioning and permitted to exercise all rights and duties of a Receiver. The "owners" feeling aggrieved by the above-mentioned order passed by the learned Judges of the Division Bench have filed this petition seeking leave to appeal against it.
10. The first question raised by Mr. Akhtar Mahmood, in support of this petition for leave to appeal, is that the learned Judges of the Division Bench erred in law while holding that non-compliance of Order XLIII, rule 3, C. P. C. Did not inevitably result in the dismissal of the appeal. It was submitted that rule 3, which was inserted in Order XLIII of the C. P. C. By Ordinance X of 1980, had mandatory effect that the noncompliance of this mandatoty provision made the appeal liable to dismissal on this short ground. Mr. Sharifuddin Pirzada, appearing on behalf of the respondent, submitted, on the other hand, that the provisions of the newly-inserted rule 3 in Order XLIII, C. P. C. We're not relevant in the present case as the said rule did not apply to a High Court Appeal filed during the pendency of a suit instituted on the original side of the High Court.
11. To appreciate this objection, some reference to the provisions of the Code of Civil Procedure (Amendment) Ordinance (X of 1980) is necessary. This Ordinance was introduced to further amend the Code of Civil Procedure, 1908. A number of amendments were made by it in various Orders of the First Schedule of the Code. By clause (c) of section 14 aforesaid, two new rules viz. Rules 3 and 4 were added after rule 2 in Order XLIII, namely :- "3. Notice before presentation of appeal.-(1) Where an appeal against an order is preferred during the pendency of a suit, the appellant shall, before presenting the appeal, give notice of such appeal to the respondent or his Advocate by delivering a copy of the memorandum and grounds of appeal alongwith a copy of the order appealed against and obtain an acknowledgment of receipt thereof for the information of the appellate Court.
(2) On receipt of notice referred to in sub-rule (1), the respondent may, with the permission of the Court, appear before it and contest the appeal and may be awarded costs on dismissal of the appeal in limine.
4. Application of rule 3.-The provisions of rule 3 shall, mutatis mutandis, apply to all applications filed before an appellate Court during the pendency of a suit."
12. Another amendment, which is relevant for or purpose, though not made in the Code of Civil Procedure itself, was carried out by section 15 of the Ordinance, which provided : "15. Appeal to High Court in certain cases.-Notwithstanding anything contained in section 3 of the Law Reforms Ordinance, 1972 (XII of 1972), an appeal shall lie to a Bench of two or more Judges of a High Court from an interlocutory order made by a Single Judge of that Court in the exercise of its original civil jurisdiction."
13. According to Mr. Pirzada that by virtue of the provisions of the Schedule read with section 2 of the Law Reforms Ordinance, 1972 Ordinance XII of 1972) clause 10 of the Letters Patent applicable to the Lahore High Court, Sind & Baluchistan High Court' and the Peshawar High Court was omitted.
Thus, an appeal against the order of a learned Single Judge of the High Court to a Bench of two Judges of the same High Court was no longer possible. However, this right, to a certain extent, was restored by the Law Reforms Ordinance of 1972. Under subsection (1) of section 3 of the said Ordinance, an appeal was provided to a Bench of two or more Judges of a High Court from a decree passed or final order made by a Single Judge of that Court in the exercise of its original civil jurisdiction. However, subsection (3) thereof clearly laid down that no appeal would lie under subsection (1) aforesaid from an "interlocutory order" or an "order which did not dispose of the entire case" before the Court. This deficiency was repaired by section 15 of the Ordinance X of 1980, reproduced above already, providing that notwithstanding anything contained in section 3 of the Law Reforms Ordinance, 1972 (XII of 1972), an appeal could be filed to a Bench of two or more Judges of a High Court from an interlocutory order made by a Single Judge of that Court in the exercise of its original civil jurisdiction. It was, accordingly, submitted that the provisions of Order XLIII, C. P. C. Did not apply to any appeal filed under section 15 of Ordinance X of 1980 against an interlocutory order passed by a learned Single Judge of a High Court in exercise of its original civil jurisdiction and that, therefore, compliance with the provisions of rule 3 of Order XLIII, C. P. C. Was not necessary in such appeals.
14. We are not inclined to agree with the submission that the provisions of the newly-added rule 3 to Order XLIII, C. P. C. Are not applicable to appeals preferred under section 15 of the Code of Civil Procedure (Amendment) Ordinance, 1980 Apart from the fact that no contention to this effect was raised before the learned Judges of the Division Bench, who disposed of the appeal, and indeed such a contention could hardly have been raised before them because the appellant (respondent herein) had himself invoked the provisions of section 104, C.P.C. (and Order XLIII is merely supplementary to it) as the main provision of law, under which he was filing the appeal; even otherwise this contention is not well-founded. We are clearly of the opinion that the provisions of sub-rule (3) are applicable to appeals preferred under section 15 of the Ordinance X of 1980 because the procedure to be adopted in case of an appeal preferred against an interlocutory order passed during the pendency of the suit has been laid down by rule 3 of Order XLIII, C.P.C. It Is established law that all the civil proceedings are regulated by the Civil B Procedure Code and by virtue of section 117 of the Code proceedings on a civil nature held before a High Court are also governed by the provisions of the Code other than the provisions which are especially excepted; see Mumtaz Khan v Chief Settlement and Rehabilitation Commissioner and another and more particularly Hussain Bakhsh v. Settlement Commissioner Rawalpindi and others , Since the Sind High Court has not made any rule governing the question of the manner in which appeals shall be heard by a Bench of two or more Judges from an interlocutory order made by a Single Judge of1 2 that Court in exercise of its original civil jurisdiction, the provisions of the Civil Procedure Code shall apply to such proceedings. These, in the instant case, would be the provisions of rule 3 of Order XLIII of the C.P.C.
15. Coming now to the nature of the provisions of the newly-inserted rule 3 of Order XLIII, C.P.C. We observe that sub-rule (1) of rule 3 requires that the party preferring an appeal against any order made during the' pendency of the suit must give notice of such appeal to the respondent or' his Advocate before presenting the appeal by delivering a copy of the memorandum and grounds of appeal along with a copy of the order appealed. Against. In order to satisfy the appellate Court that this has been done, he should obtain an acknowledgment receipt to the effect that a copy of the grounds of appeal alongwith the other documents has, indeed, bee received by the respondent or his Advocate,
16. The purpose of this provision obviously is to avoid the delay that is occasioned in issuance of notices to and having service effected on the respondent in a case where the main suit is still pending adjudication an only the legality or correctness of some interlocutory order is under question, Hence intimation to the respondent of the fact that an appeal is being preferred and on the grounds on which this is being done, to avoid taking him by any surprise, has been prescribed as a condition precedent to the entertain ability of the appeal.
17. Sub-rule (2) of rule 3 provides that on receipt of the notice referred to in sub-rule el), the respondent may, with the permission of the Court, appear before it and contest the appeal with a view to getting dismissed in limini, in case he succeeds in doing so he may even be awarded costs.
18. The above provision highlights the fundamental importance of issuance of the notice to the respondent by the appellant before presentation of the appeal. Not only does he become aware of the fact that an inter locator order issued in his favour has been challenged by an appeal but a right has been conferred on him to contest the appeal at the limini stage with the permission of the Court, with a view to getting the appeal dismissed at that very stage and, thus, bring to a close the litigation directed against an order passed pendente lite favorable to him. This would not be possible unless notice before presentation of the appeal was given to the respondent, the said valuable right conferred upon him would be lost and resultantly the provisions of sub-rule (2) of rule 3 would be rendered futile, inutile and nugatory. Hence we think that issuance of a notice to the respondent before presentation of an appeal preferred against an order passed during the pendency of a suit is obligatory and no appeal can be entertained without issuance of the requisite notice. It would, therefore, be entirely appropriate, with a view to ensuring that the pro visions of this beneficial rule are given effect to in letter and spirit that the officers responsible for inter alia receiving and scrutinizing appeals preferred the Courts concerned, do require the appellant or his Advocate to submit, against the interlocutory orders made during the pendency of a suit of all along with the other documents required for filing an appeal, an affidavit that he has given notice of such appeal to the respondent or his Advocate by delivering him a copy of the memorandum and grounds of appeal along with a copy of the order appealed against and shall also attach with the said affidavit a copy of the acknowledgement receipt obtained from the respondent or his Advocate, as the case may be. Any appeal, which is not accompanied by such an affidavit and a copy of the acknowledgement receipt should not be. Entertained.
19. In the instant case, we observe that the learned Division Bench had isssued a pre-admission notice to Advocate of the respondents (the petitioners herein) and their Advocate Mr. Akhtar Mahmood was present E on pre-admission notice. Thus, he could contest the admission of the appeal and seek its dismissal in limini. No grievance, furthermore, was made by him to the effect that any document to which reference was being made during the hearing of the appeal had not been supplied to him o that he was otherwise taken by surprise. Thus, in this case, all the object for which rule 3 was inserted in Order XLIII of the C. P. C. Were satisfied I substance. Since the proper place of procedure is to help and not to thwart the obtaining of justice and procedural laws, as pointed out by Mr. Sharifuddin Pirzada, should be utilized as "stepping stones" rather than we might add, as stumbling blocks; the right of a party in this case to have his appeal heard, cannot be allowed to be defeated for failure to comply with the form where the substance has, in fact, been complied with. See Imtiaz Ahmad v. Ghulam Ali and others and Manager, J & K State Property in Pakistan v. Khuda Yar .
20. On this view of the matter, we would uphold the decision of the learned Judges of the Division Bench to reject the preliminary objection and in finding that the appeal preferred before them by the respondent herein was liable to be disposed of on merits.
21. As regards the merits, lengthy arguments were addressed before us on behalf of the two sides on the question whether the plaintiff/respondent had a prima facie, entitling him to the issue of a temporary injunction peadente lite ? While Mr. Akhtar Mahmood, on behalf of the petitioners strenuously contended that no concluded contract could be said to exist between the parties on the basis of the reply dated 19-2-1979 given by the plaintiff/respondent to the offer dated 8-2-1979 communicated by the "owners" to the "lessees" alongwith the correspondence ensuing between the parties thereafter. He further submitted that as for the plea that a sort of an open contract had been created between the parties by the terms of the original lease deed dated 5-12-1962 (of which clause 16 was especially relevant whereby the lessees were to be given the first preference at the price offered by any party acceptable to lessors and that this clause did not specify any particular time limit for payment of the price, in case of acceptance of the said offer), the plaintiff/respondent had not relied upon the above clause in support of his case, in his plaint but had merely asserted that on account of the acceptance on 19-2-1979 of the offer made to him on 8-2-1979 for the sale price of Rs, 15 lacs a concluded contract between the parties had come into existence and the owners were, therefore, obliged to "fulfil and complete all necessary procedures required for completion of the sale".
22. An elaborate and comprehensive reply was made by Mr. Sharifuddin Pirzada to controvert these contentions and it was inter alia submitted that the plea that the plaintiff/respondent had not relied upon clause 16 of the Lease Deed in his plaint was not correct and in this connection he referred to para. 3 of the plaint wherein it is averred that "the defendants herein sent a notice dated 8-2-1979 to all the lease-holders including the plaintiff herein intimating all of them that the defendants were desirous to sell the said property and have received an offer of Rs, 15,00,000 and, therefore, called upon the lessees including the plaintiff herein for exercise of option for the purchase of the property on the same amount, pursuant to clause 16 of the lease deed dated 5-12- 1962 It was further submitted that, in any case, as observed by this Court in S. M. Ayub v. Yuszif Shah , a very strict view, on the technical plane, of pleadings without regard to the substance of the matter which results in defeat the ends of justice and leads to smothering genuine litigation is not be taken. We respectfully agree with this view.
23. Anyhow, we do not think it necessary at this stage of the controversy to express or views on the question as to whether the plaintiff respondent has a prima facie case and if so, whether it is a strong one o merely an arguable case, because, in the circumstances of this case, the question whether a temporary injunction should or should not be grants during the pendency of the suit is really not of any great importance and, therefore, we do not consider it necessary to interfere with the discretion exercised by the learned Judges of the Division Bench of the High Court in this regard.
24. According to the petitioners, the purchasers entered into an agreement for sale with the owners on 9-7-1980 and paid the full consideration of Rs, 15,00,000 to the owners on 16-7-1980 and the only thing that remains is the execution of a registered sale-deed in favour of the purchasers by the owners, which they are unable to do, because of the impugned order of the learned Division Bench3 4 5 dated 27-3-1983. If this order is not vacated, the apprehension that is expressed is that in case the sale-deed is not executed complications may arise in case of the death etc. Of the owners-who are old people and in order to safeguard against any such complication arising, the owners may be allowed to execute the sale-deed in favour of the purchasers, something which, it is stated, will not prejudice the interests of the plaintiff/respondent inasmuch as the purchasers will be governed by the final judgment and decree passed in the original suit.
25. On the other hand, according to the learned counsel for the plaintiff/respondent, the so-called possibility of complications arising in case of the death of any of the owners is entirely imaginary 4nd not at all real. He drew or attention to the General Power of Attorney executed by the owners in favour of Mr. Aziz-ur-Rehman, the brother and uncle of the purchasers, in which he has been empowered to do all things that can be done by the owners themselves. He also pointed out that the entire construction on the plot has been done by the plaintiff and his co-lessees and they are entitled to purchase it and that under the orders of the learned Division Bench, the full amount of the price viz. Rs, 15,00,0001 had even been deposited in Court by the plaintiff/respondent. Hence justice H required that the title of the property remain unaffected during the pendency of the suit proceedings.
26. We observe that so far as the control and management of the property is concerned, the Receiver appointed by the Court is continuing to manage it. The property is thus at present, under the custody of the Court. We further note that the learned Judges of the Division Bench have requested the learned Single Judge, hearing the case on the origins side, to dispose of the main suit within 8 months, out of which nearly months are already over and the judgment of the Court, deciding the entire matter finally, should be available within two or three months. In these/ circumstances, we do not think that there is need for any interference by this Court with the order passed by the Division Bench and impugned before us, except for observing that we expect that the learned Single Judge, hearing the suit on the Original Side, shall respect the wish of the learned Judges of the Division Bench and will bend all his energies to ensuring that the above wish is humored and the suit heard and disposed of within the period of 8 months, as desired by the learned Judges of the Division Bench.
27. This petition, with-these observations, is dismissed. L D 1966 SC 276 PLD 1970 SC 1 PLD 1963 SC 382 p L D 1975 SC 678 PLD 1967 SC486
…and 25 more citing cases