' This civil revision has arisen out of an appeal preferred by the petitioner Muhammad Shafi, against an order passed by a Civil Judge of Kasur during the pendency of a suit brought by respondent No, 1, Sh. Muhammad Amin, against the petitioner and respondent No, 2, Anjam-ud-Din Ahmed. The appeal was placed before the District Judge, Kasur, on 17th November, 1981. The learned District Judge entrusted the appeal to the Additional District Judge, Kasur, and directed that it shall come up before the latter on 2nd December, 1981. He further directed that operation of the impugned order shall remain suspended meanwhile. When the stay order granted by the learned District Judge was conveyed to respondent No, 1 (plaintiff), he made an application to the learned District Judge, on 21st November, 1981, praying for the Vaksation of the stay order. Notice of the said application was given to the petitioner for 22nd November, 1981. On this date, it was ordered by the learned District Judge that the appeal shall come up before the learned Additional District Judge on 26th November, 1981, instead of 2nd December, 1981, and that status quo shall be maintained till then. It seems that the gentleman who was serving as Additional District Judge, Kasur on 17th November, 1981 was subsequently transferred. His successor had not taken over by 26th November, 1981. As a result, on 26th November, 1981, the appeal was adjourned by the Reader of the Additional District Judge. At long last, it came up before the learned Additional District Judge on 26th January, 1982. On that date, learned counsel for the petitioner and that of respondent No, 1 were present but the appeal was adjourned to 27th January, 1982. On 27th January; 1982, the aforementioned learned counsel were heard and the appeal was dismissed by the learned Additional District Judge on the ground that the petitioner had failed to comply with the provisions of rule 3, Order XLIII of the Code of Civil Procedure. Feeling aggrieved by the order of the learned Additional District Judge, the petitioner has come up in revision to this Court.
2. It was contended by learned counsel for the petitioner that since no penalty has been provided in rule 3 of Order XLIII of the Code of Civil Procedure, the learned Additional District Judge could not dismiss the appeal for the omission of the petitioner to act in terms of the said provision of law. It was also urged that no prejudice had been caused to respondent No, 1 due to the filing of the appeal in disregard of the provisions of rule 3 inasmuch as the said respondent had entered appearance, through his counsel before the learned appellate Court, prior to the admission of the appeal to a regular hearing. In this connection, reliance was placed by him on paragraph 19 of judgment reported as Mrs. Dino Manekji Chinoy and 8 others v. Muhammad Matin (1).
3. Rule 3 of Order XLIII of the Code of Civil Procedure reads as follows :- "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."
(1) PLD 1983 SC 693
4. There is no force in the argument of the learned counsel for the petitioner that an appellant cannot be penalized for not complying with the provisions of rule 3 of Order XLIII of the Code of Civil Procedure. It has been ruled in the case of Mrs. Dino Manekji Chinoy and 8 others, cited by learned counsel for the petitioner himself, that the said provisions are mandatory and if an appeal is preferred without satisfying the requirements of the said provisions the appeal is not entertainable.
This clearly means that the appeal can be dismissed on the short ground that it has been filed without fulfilling the condition precedent to the entertainabilit thereof.
5. I am unable to agree with learned counsel for the petitioner that no prejudice had been caused to respondent No, 1 due to the failure of the petitioner to act in accordance with the provisions of rule 3 inasmuch as the appeal was not admitted to a regular hearing in the absence of the said respondent. It is true that the appeal was not admitted to such hearing I the absence of the respondents. In fact, it was never admitted for the purpose till it was dismissed as aforesaid.
However, on the very first day, that is, on 17th November, 1981, when it came up before the learned District Judge the operation of the order made by the learned trial Court in favour of respondent No, 1 (plaintiff) was suspended by him. On coming to know of that adverse development, he (respondent No, 1) made application for vacation of the order of suspension passed by the learned District Judge. In his application, it was submitted by respondent No, 1 that he was suffering an irreparable injury due to the order of the learned District Judge. Thereupon, the learned District Judge converted the said order into a status quo order. Thus, respondent No, 1 suffered the above orders of the learned District Judge for pretty long time. If the petitioner had given notice of the appeal to respondent No, 1 before filing the appeal, he could appeal before the learned District Judge on the day when direction regarding suspension of the trial Court's order was given by him and oppose the issuance of such direction by seeking dismissal of the appeal in limine. In that event, if the appeal had been dismissed in limine on the very first day when it came up before the learned District Judge, respondent No, 1 would have been saved of the agony and expense to which he was put before the appeal was eventually dismissed. It is, therefore, not correct to say that no prejudice was caused to the said respondent due to the petitioner's failure to comply with the provisions of rule 3. If a contrary view is taken, the said provisions will be of little avail to the respondent in an appeal in which the appellant obtains a stay order against the respondent, in hi (respondent's) absence, and then avoids motion hearing of the appeal of months, if not years.
Cases are not lacking in which the appellants have indulged in such mischiefs while invoking jurisdiction of the appellate Courts.
6. In the case of Mrs. Dino Manekji Chinoy and 8 others, relied upon by learned counsel for the petitioner, no stay order had been issued by the appellate Court before admitting the appeal to a regular hearing. In the cited case, the learned appellate Court had also issued a pre-admission notice to the respondents but no such notice was given to the respondents in the case in hand.
Learned counsel for respondent No, 1, no doubt, appeared before the learned appellate Court after the grant of stay order by that Court to have the stay order vacated and he could be heard at the limine stage but respondent No, 2 never appeared before the appellate Court in connection with the stay matter or otherwise. Notice of the appeal or application for vacation of stay order had never been given to respondent No,
2. In other words, respondent No, 2 was never provided with an opportunity to oppose the admission of the appeal. The case under report, therefore, being C distinguishable on facts, the petitioner cannot make use of the observations appearing in paragraph 19 of the judgment passed in that case.
' 6-A. To sum up, admittedly, the petitioner did to serve the respondent with notices under rule 3 of Order XXIII of the Code of Civil Procedure before filing the appeal. As held in the case of Mrs. Dino Manekji Chinoy and 8 others, it was obligatory for the petitioner to give such notices and obtain acknowledgments of the receipt thereof but as the appeal was file without so doing, it was not entertainable. The petitioner did not offer an explanation for his failure to issue the notices in question. This failure on his part had caused prejudice to respondent No, 1 (plaintiff). No valid exception can, therefore, be taken to the order of the learned Additional District Judge by which he had dismissed the appeal of the petitioner.
7. There is no merit in this civil revision. It is dismissed with no order as to costs.