1. ' The plaintiff has filed this suit for declaration and mandatory injunction against the defendants.
2. The following facts are alleged in the plainti.
3. ' That property bearing survey No.41, Sheet No.SR, situated in Saraey Quarters, Karachi, (I will hereinafter refer this property as the "suit property" for the sake of convenience) belonged to the firm of Adamjee Shaikh Jiwan Je and its partners. That in the year 1912, upon dissolution of the said firm the suit property came to the share of one of its partner namely Mohammad Ali Adamjee. On the suit property there existed 3 well-defined separate buildings. Upon death of Muhammad All Adamjee in 1938 the suit property devolved on his three sons namely Fazal. Bhoy, Tahir Bhoy, and Ibrahimjee. The aforesaid three sons of Mohammad Ali Adamjee on 12-4-1940, entered into a family arrangement/partition inter se and as a result of this arrangement between them the suit property was partitioned in three separate portions and assigned three separate numbers namely 41/1, 41/2 and 41/3. Building No.41/1 which is on the northern side came to the share of Fazal Bhoy, Building No.41/2 which is in the centre came to the share of Tahir Bhoy, and Building No.41/3 which is on the southren side came to the share of Ibrahimjee. This partition agreement, dated 12-4-1940, amongst others, provided for closing of gaps in the partition walls and construction of separate drains etc. at common cost. In pursuance of this agreement all three brothers applied for sub-division of suit property into three independent plots buildings to K.M.C., which sanctioned the sub-division and assigned three separate numbers to these buildings namely 41/1, to 41/3. These sub-divided buildings were later mutated in the respective names of the three sons of Late Mohammad Ali Adamjee. According to the sub-division plan sanctioned by K.M.C., each one of these three buildings had ingress and egress separately and independently from Campbell Street. Ibrahimjee the owner of plot No.41/3 made an oral gift of his property in favour of his wife Mst. Ratan Bai whose name was mutated accordingly in the records of right on 12-11-1940 and a registered lease was granted by the K.M.C. to her. The said Mst. Ratan Bai by a registered sale dated 23-8-1944 granted, sold, assigned, conveyed and transferred her rights, interest and title to and in property No.41/3 to one Basant Ram Motwani. Upon purchase of property No. 41/3, Basant Ram undertook to close the gaps in the partition wall between plots Nos. 41/2 and 41/3 and thus interrupted and stopped ingress to and egress from through over property No.41/3. This action on the part of Basant Ram resulted in a report to the Police on 2-9-1944 by Tahir Bhoy, the owner of adjoining building No. 41/2. Basant Ram then filed Civil Suit No.137/45 in the then Chief Court of Sind against Tahir Bhoy for declaration and mandatory/permanent injunction to the effect that the defandent in the suit or any other person under or through him had no right to pass through property No. 41/3 and that said Basant Ram had the right to close the passage and stop the use of the same by the owner of adjoining buildings.
4. The name of plaintiff No.1 was substituted in the above suit on purchase of the property by him from Basantram Motwani. The said suit was later on transferred to the Court of Civil Judge 1st Class, Karachi, and was numbered as suit No.2306 of 1959. The learned Civil Judge dismissed the above suit by order dated 23-12-1961 but on appeal the learned Additional District Judge, Karachi, decreed the suit. A second appeal filed in this Court against the order of Additional District Judge, was pending at the time of institution of the present suit. While suit No.137 of 1945 was pending in the then Chief Court of Sind, Fazal Bhoy the owner of building No.41/1 filed an application under Order I, rule 10, C.P.C., to be joined as defendant in the suit. This application was disallowed by the Court.
5. Upon dismissal of application under Order I, rule 10, C.P.C., Fazal Bhoy filed suit No.85 of 1948 in the then Chief Court of Sind against plaintiff No.1 and Tahir Bhoy. In the aforesaid suit Fazal Bhoy claimed that the defendant No.1 and his predecessor in title have been wrongly denying the said Fazal Bhoy and his tenant the use of the passasge on plot No.41/3 and prayed for declaration that he and his tenant are entitled to use the passage and have right of way over building No.41/3. The present plaintiff No.1 who was defendant No.1 filed his written statement in that suit on 12-7-1949, denying completely the claim of Fazal Bhoy. Fazal Bhoy, however, withdrew the above suit unconditionally, and later on sold his right, title, and interest in property No.41/1 to the present defendants on or about 8-1-1952. The plaintiff No.1 gave notice, dated 25-5-1976 to the defendants asking them to refrain from using the passage over property No.41/3 and upon refusal by the defendants filed the present suit. The defendants in their writter statement denied the claim of plaintiff No.1 and asserted that they are entitled to use the passage of plot No.41/3 for the purposes of ingress and egress to the rear portion of their building. It is claimed by the defendants that the building on plot No.41/3 is so constructed that the only passage to the rear portion of building No.41/1 is through open space of building No.41/3. On the basis of the controversy between the parties the Court framed the following issues on 23rd February, 1970:- "(1) Whether the Plot No.41 did not have three well demarcated separate and totally independent buildings since 1912 when it was owned by Mohammadali Adamji exclusively?
(2) Whether the Karachi Municipal Corporation and/or the competent authorities did not sub- divide plot No.41 into three independent/ separate plots as Nos. 41/1, 41/2 and 41/3?
(3) Whether the plot No.41 was sub-divided in three sub-plots with inter-connections. If so, what was the basis and nature of these inter-connections?
(4) What was the effect when Basantram S.Motwani closed or tried to close the gap between plots Nos.41/2 and 41/3 in 1944?
(5) What was the reason and effect of Fazalbhoy making an application under Order I, rule 10 in suit No.137 of 1945 and upon dismissal of the application, filing a suit, No.85 of 1948 in the Sind Chief Court against the plaintiff?
(6) Whether the defendant and/or their predecessors-in-title continuously, uninterruptedly and without let or hinderance used the passage of plaintiff's property No.41/3, or ingress and egress. If so, to what effect?
(7) Whether the defendants or any of them has any right of user of the passage of plaintiff's plot No.41/3. If so, whether such right is sustainable in law?
(8) Whether the defendants and/or their predecessors-in-title raised in their passage or outlet to Campbell Street, artificial unauthorised and temporary obstructions/walls to convert them into godown. If so, to what effect?
(9) Whether in or about December, 1968/January, 1969 the defendants dispossessed the tenants from the godowns in their said passage and obtained possession thereof. If so, what is the effect?
(10) Whether the suit is over-valued.
(11) Whether the plaintiff is estopped from depriving the defendants of the right to use the passage on Plot No.41/3?
(12) Whether the defendanis have been using the disputed passage since 1952 continuously and without interruption?
(13) To what relief is the plaintiff entitled?"
6. ' The plaintiff in support of his claim has examined one Badaruddin son of Nazar All and closed his side. The defendant had examined Fakhruddin son of Saleh Bhoy, one of the defendants, in support of their case. Besides the above oral evidence the parties have produced documentary evidence by consent which is Exh.5 to Exh.20. I may mention here that at the hearing of the case learned counsel for parties did not address on the issues framed in the suit. The defendants mainly contended that they have acquired a right of easement by prescription to use the open space in building No.41/3 to go over to the rear portion of their building 41/1 while the plaintiff's main contention is that in view of the agreement, dated 12/1940 and previous litigation between the parties and orders of Court passed thereon, the defendants cannot claim right of easement by prescription.I may also mention, here that at the time of institution of present suit the second appeal against the decree in Suit No.137 of 1945 was pending in this Court which succeeded but on appeal the Supreme Court reversed the judgment in Second Appeal and restored the judgment and decree passed by the A.D.J. I have accordingly re-framed the issues in the suit as follows:-
(1) Whether the defendants have acquired a right or easement over the alleged servient heritage namely 41/3 to pass through the passage of that building in order to reach the rear portion of building 41/1 owned by the defendants, by prescription?
(2) What is the effect of final decision in Suit No.137 of 1945, dismissal of application under Order I, rule 10, C.P.C. filed by Fazal Bhoy in Suit No. 137 of 1945 and institution and withdrawal of Suit No.85 of 1948 by Fazal Bhoy on the rights claimed by the defendants?
(3) Whether the plaintiff is estopped from depriving the defendants on the right to use the passage of building No.41/3.
(4) To what relief if, any, the plaintiffs are entitled? My findings on the above issues are as follows:- ' ISSUES- Nos.]: and 2.-- ' Both these issues are interconnected and therefore I will deal with them simultaneously. The defendants in support of their claim have examined Fakhruddin one of the co-owners. He stated in his evidence that building No.41/1 was purchased in the year 1952 and at the time he purchased the above property the front portion of building was occupied by the previous owners while in the rear portion there were tenants. The previous owners gave vacant possession of only that portion which was in his possession, which was occupied by the defendants. The tenants in the rear portion of building used to pass through the passage of building Nos.41/2 and 41/3 to go over to their premises from Campbell Street. This position also existed prior to the purchase of the property by defendants. After purchase of the property by the defendants no one ever objected to the use of these passages of properties Nos.41/2 and 41/3, by the tenants of the building No.41/1 who occupied the rear portion. The previous owner of building No.41/3 did not file any case against defendants or against the previous owner of the property. The suit instituted by Fazal Bhoy was withdrawn as nobody was objecting to the use of the passage on property No.41/3 for going to the rear portion of property No.41/1. In cross-examination he stated that so far he re-collected the right of easement over building Nos.41/2 and 41/3 was mentioned in the agreement of sale, as well as in the final sale- deed, but admitted that he neither produced the agreement of sale nor the sale-deed in Court. He denied the suggestion that he did not produce these documents because there is no stipulation in these documents with regard to easement rights. He admitted that according to entries in record of rights property No.41, devolved on 3 persons by partition. He was shown the agreement, dated 12th April 1940 (Exh.11) between three sons of Late Mohammadali and statement made by them before City Deputy Collector (Exh.12), and he admitted that he was aware of these documents at the time of sale. However, with regard to sanction letter of K.M.C. (Exh.5) he stated that he could not say if his father who conducted the transactions of purchase was aware of it at the time of sale but further stated that he is now aware of it. He also admitted that he was informed by the seller about proceedings of Suit No. 137 of 1945. He denied the suggestion that the proceedings in the present suit were kept in abeyance because of pendency of an appeal before the Supreme Court in respect of the dispute between the owners of buildings Nos.41/2 and 41/3. He admitted that there is main passage to building No.41/1 from Campbell Street but stated that this main passage at present is open only upto front building and stops immediately before the second building as it is blocked by construction. He also admitted that if front and rear gates of the shops which blocked the passage are kept open it can serve as a passage upto rear most portion of the building. He admitted that Exh.5/1 is approved plan of K.M.C. but denied that the shops which blocked the passage are unauthorised construction. He stated that at the time he purchased the building these shops were in existance and claimed that these shops are shown in the plan Exh.5/1. He was shown Exh.13, a copy of the Judgment of Supreme Court and after seeing it he said that he now became aware, of it. He further stated that he was not aware if the owner of plot No.41/3 attempted to construction wall in the year 1945 but he became aware of the litigation after he purchased the property. He denied the suggestion that he was allowed to use passage of plot No.41/3 as a licensee by owner of that building. The plaintiff in his evidence stated that originally there were one building namely 41 which was sub-divided in three different plots namely 41/1, 41/2 and 41/3 and each sub-divided portion had separate building. That on or about 12-4-1940 there was a family arrangement between the owners of 3 sub-divided portions of the building and accordingly a sub-division plan was approved by the K.M.C. He stated that the three owners of sub-divided buildings had agreed to by separate drainge, or to install separate or joint water connection or to put up partition wall between sub-divided portions to close up the open space. He produced Exhs. 11,.12 and Exhs.5 and 5/1. He stated that at the time the present plaintiffs purchase the property, proceedings were pending between Basant Ram and Tahir Bhoy in the Supreme Court. He stated that he was aware that Basant Ram had filed a suit for injunction to restrain the owner of plot No.41/2 and their tenant from using plot No.41/3 as passage. He also stated that final decision of the Supreme Court in that case is that the tenants of adjoining plot No.41/2 are not entitled to use plot No.41/3 by way of passage. He produced a copy of application made by Fazal Bhoy in suit No.137/1945 and the orders of the Court passed thereon as Exh.14. He also produced certified copies of plaint in Suit No.85 of 1948 and the written statement filed by plaintiff No.1 in that suit, as Exhs.16 and 17. He also produced the certified copy of order of Court allowing withdrawal of suit No.85/48 as Exh.18. He produced the correspondence exchanged between the previous owner of plot No.41/3 and the present defendants as Exhs.7 to 9. He stated that in spite of protests of plaintiffs the defendants did not stop using plot No.41/3 for ingress or egress to their building No.41/1, therefore, the present suit was filed.
7. He stated that he has seen all the three properties and each one has independent gate opening on the main Campbell Street. He stated that the owners of building No.41/2 constructed a Godown blocking the main gate of second building No.41/2, and Supreme Court in its judgment has directed the owner of building No.41/2 to open the passage from the said gate. He stated that occupants of Plot No.41/1 are in no way obstructed from ingress or egress from Campbell Street. In cross-examination in reply to a suggestion he denied that three buildings constructed on plot No.41 are behind one another. He stated that these buildings are side by side. He admitted that since 1940 when the original plot No.41 was sub-divided the tenant occupying different tentaments in rear portion of three sub-divided properties has been using the passage of building owned by the plaintiff. It is quite clear from the above evidence that the persons occupying the rear portions of building No.41/1 used the passage for going over to their premises through plot/building No.41/3. The question which, however, arises in the present circumstances is whether this use of passasge of building No.41/3 by the occupants of building No.41/1 was such which could create a right of easement in their favour by prescription. It is an admitted position that originally building No.41, was owned by Late Mohammadali and, therefore, there could not be any question of any right of easement until such time it was owned by him. It is also an admitted position that on the demise of said Mohammadali the building devolved on his three sons namely Fazal Bhoy, Tahir Bhoy and Ibrahimjee. These three brothers entered into an agreement on 12th April, 1940 which has the effect of dividing the original construction or plot No.41 into three separate buildings, namely 41/1, 41/2 and 41/3 and each one of them separately possessed and owned one of these sub-divided buildings.
8. Paragraph 2 of the above agreement which provides for making each sub-devided portion as self- contained unit reads as under:- "2. That if for the purpose of making sub-divisions self-contained and or meeting the requirement necessary for the sub-divisions being sanctioned by the Municipal and Government authorities or even otherwise it becomes necessary to lay any separate drainages connections, instal any separate or joint water connections pipes or pumps or to put up partition walls between one sub- division and another or close up the open passages or carry on any other item of work for the said purpose, the same will be done and carried out on the joint expenses of the parties, each being liable to pay one-third share of such expense."
9. ' A reading of the above paragraph in the agreement will show that for the purposes of making each sub-divided building self-contained the parties were required to lay separate drainage connection, install separate or joint water connection, pipes or pumps and put up partition walls between the sub-divided portions and close up the open passage or carry on any other works for the said purposes at the joint expenses of parties. This agreement did not envisaged use of passage of building No.41/3 as common access to all the three owners of adjoining buildings to their respective rear portions. The sub-division plan approved by K.M.0 on 8-6-1940 in pursuance of the bove agreement also shows that each one of these three buildings have enterances from main Campbell Street and passages goes right upto the end of each building. The case of the plaintiff is that after purchase of building No.41/3 by Basantram Motwani, the purchaser attempted to close the gap between buildings Nos.41/3 and 41/2 which led to a dispute and filing of Suit No.137/45 by Basantram against the owner of adjoining building No.41/2 which finally ended by a judgment of Supreme Court dated 20-5-1981 (Exh.13). In these circumstances it is contended that if the tenants of plot No.41/2 or 41/1 continued to use the passage of building No.41/3 during the pendency of litigation it could not give rise to any right of easement in their favour. It is also contended by the plaintiff that the owner of plot No.41/1 Fazal Bhoy (predecessor-in-title of the present defendants) made an application under Order I, rule 10 for being joined as a party in Suit No.134/45 claiming that he has right of passage over plot No.41/3 in the same manner as was claimed by defendants in that suit and that if the plaintiff succeeded in his right will be equally affected and accordingly prayed that he may also be joined as defendant in the suit. This application was rejected by the Court and upon rejection of application, Fazal Bhoy instituted Suit No.85/1948 in which he sought a declaration that he and his tenants are entitled to use passage over building No.41/3 and also claimed injunction against plaintiff No.1 restraining him from closing the said passage. The defendant No.1 (Present plaintiff No.1) in that suit denied the claim of Fazal Bhoy regarding right of way over plot No.41/3 and asserted that he had right to put up partition walls. The said Fazal Bhoy, however, withdrew his suit unconditionally. It is, therefore, cont ended that Fazal Bhoy having abondoned his claim in Suit No.85/1948 his successor could not now claim the same right. The learned counsel for the defendant on the other hand contended that the present defendant or their prodecessor-in-title not being parties to suit No.137/1945 are not bound by the decision in that suit. It is also contended that withdrawal of suit No.85/1948 by Fazal Bhoy could not affect the rights of present defendants as that suit was withdrawn by the said Fazal Bhoy because there was no obstruction to his right to use the passage of building No.41/3 by the predecessor-in-title of the plaintiff. After hearing the learned counsel for the parties at length I am of the view that contentions of the learned counsel for the plaintiff has great force.
10. ' It is not disputed that occupants of building No.41/1 in order to reach the rear portion of that building has to pass through the passages of both buildings Nos.41/3 and 41/2. It is also not disputed that if the owner of building No.41/3 succeeds in closing the gap between building Nos.41/3 and 41/2, the right of entry claimed by occupants of building No.41/1 will be obstructed. It is, therefore, quite clear that precisely for these reasons Fazal Bhoy, the predecessor in-title of present defendants, instituted suit No.85 of 1948 in which he made following allegations in pares. 9 to 11:- "9. The defendant No.1 and his predecessor-in-title have been wrongfully denying the right of the plaintiff and the defendant No.2 and their tenants to use the said passage on plot No.41/3 S.R.7 for the purpose of ingress and egrees to the back portions of their respective plots and have been in turn threatening to close the said passage.
10. The defendant No.1's predecessor-in-title Basantram as stated above has filed the Suit No.137 of 45 for declaration that the defendant No.2 has by himself or by or through his tenants no right of passage of entrance and or exist over plot Nos.41/3 and that the plaintiff in that suit has a right to put up a partition wall on his portion so as to close the passage. He has also prayed for injunction, restraining defendant No.2 and or his tenants from using the said passage.
11. It is submitted that if the defendant No.1 close the said passage, the plaintiff's right of using the said passage as stated above will be impaired."
11. ' The above allegations were replied by plaintiff No.1 who was defendant No.1 in the suit, in his written statement as follows:-- Re. para. 9 it is submitted that this defendant and his predecessor have been rightly denying the right of the plaintiff and/or defendant 2 and/or their tenants to use the passage referred to in this para. for the purposes alleged. The plaintiff and/or defendant 2 and/or their tenants have no rights of whatever nature over the passage on plot No.41/3 Sheet S.R .7 Serai Quarter Karachi.
9. Re. para. 10, the suit filed by this defendant's predecessor speaks for itself.
10. Re. para. 11 the defendant submits that as the plaintiff and/or defendant 2 have no right of using the passage referred to, the defendant is entitled to close the said passage."
12. 'From the above discussed evidence it is quite clear that the plaintiffs and their predecessor-in- title always disputed the right of defendants and their predecessor-in-title to use the open space of building No.41/3 as a passage for going over to the rear portion of building No.41/1. It is also established that the predecessor-in-title of defendants when asserted the above right of easement over property No.41/3 in suit No.85/1948, it was strongly refuted by plaintiff No.1 but instead of contesting and estblishing the same, the defendants predecessor-in-title withdrew the suit unconditionally which in these circumstances, in my opinion, amounted to abondonment of the above claim. Apart from it the right of plaintiff to construct partition wall on plot No.41/3 in order to close the access through open space of plot No.41/3 for going over to rear portions of adjoining buildings was subject of adjudication from 1945 to 1981 in a Civil Suit and was finally decided by the Supreme Court on 20-5-1981 when it was held that the owner of plot No.41/3 has the right to close the gaps by constructing B partition walls on plot No.41/3 to prevent access through the open space on their property. Therefore, during the period from 1945 to 1981 when the matter was pending in the Court mere user of open space as an access to the rear portion of building by the tenants of building No.41/1 could not create any right of easement by prescription in favour of defendants. It is well-established that in order to acquire a right of way as an easement or any other easement right by prescription it must be shown that such right has been enjoyed actually, openly, peaceably, without interreption by any person claiming title thereto as an easement and as of right for twenty years. In the present case it cannot be said that use of open space over property No.41/3 by the tenants of property No.41/1 was peaceable and for twenty years as this right was first disputed in the year 1945 when the plaintiff, predecessor-in-title attempted to close the gaps on property No.41/3 which was used as passage to go over to the rear portion of buildings on plots Nos.41/1 and 41/2. Again the predecessor in title of defendants asserted this right of easement in 1948 when he filed suit No.85 of 1948 on 28-2-1948. The plaintiff's predecessor-in-title once again deni ed this right when he filed his written statement on 12-7-1949. Suit No.85/1948 was unconditionally withdrawn on 21-7-1949 after filing of written statement by the predecessor-in-title of present plaintiff. The present suit was filed by the plaintiff on 30-5-1969. In these circum stances neither the enjoyment of right of way claimed by the defendants could be described as peaceable nor it was for twenty years, so as to create an easement right in their favour. I may also mention here that the defendant in their evidence asserted that the easement right claimed by them are also mentioned in the agreement of sale, and the sale-deed executed in their favour, but in spite of the suggestion in the cross-examination by the plaintiff's counsel that no such stipulation existed either in the agreement of sale or in the sale-deed these documents were not produced. In these circumstances, an adverse inference has to be drawn against the defendants that these documents did not contain any stipulation regarding the easement rights claimed by the defendants. Mr.Ibrahim Pishori, the learned counsel for the defendant relied on the case of Ram Sarup v. Abdul Haq AIR 1931 Lah . 395 to contend that mere denial of the right of defendants by the plaintiff to use the open space over plot No.41/3 without actually, and physically preventing the defendants from using the same was not enough to establish that the enjoyment of right by defendant was not peaceable. Without expressing any opinion as to the correctness or otherwise of the view taken in that case, it is enough to say that the above cited case had its own peculiar facts. In that case seven doors and two Parnalas were found to be in existence since 1900 and the owner of the servient heritage attempted to obstruct the use of same in 1921 by constructing a wall.
13. Prior to construction of wall in 1921 the owner of survient heritage had also instituted a suit in 1916 for mandatory injunction for closure of doors and Parnalas but the suit was dismissed on the ground that the owner of survient heritage had acquisced in the existance of doors and Parnalas for many years. It was in these circumstances held by the Court in that case, that until construction of wall in 1921 the owner of dominant heritage had successfully used peaceably the easement right without interruption for 20 years. These facts have no applications in the present case. I, therefore,decide issue No.1 in the negative. My finding on Issue No.2 is that because of proceedings of Suit No.137 of 1945 and Suit No.85 of 1948, the enjoyment of right of way by the defendants over property No.41/3 could not be treated as peaceable and for twenty years so as to confer right of easement in favour of defendants.
14. ' Issue No.3.--The burden proving this issue is on the defendants. I have already found under issue Nos.1 and 2 that the plaintiff first objected to the use of passage over property No.41/3 when their predecessor-in-title instituted Suit No.137 of 1945. Thereafter the matter was under adjudication in different courts until 1981 when the Supreme Court of Pakistan decided it finally. The defendants are unable to show as to how the plaintiff in these circumstances are estopped from denying the right of defendants to use the passage of property No.41/3. This issue is accordingly decided in the negative.
15. ' Issue No.4.--As a result of above discussion I decree the suit of plaintiffs for permanent injunction and restrain the defendants and all persons acting through or under them or deriving title under them from using the open space of property No.41/3 as passage for access to the rear portion of building on plot No.41/1.
16. ' I will, however, make no order as to costs.
17. Suit decreed.
18. 1985 CLC 168 [Karachi] Ndimuddin and Ibadat Yar Khan JJ Messrs Haji SULEMAN GOWAWALA & SONS Ltd.--Appellants versus USMAN and 13 others--Respondants Civil Miscellaneous Appeal No. 183 of 1984 in High Court Appeal No. 116 of 1983, decided on 6th June, 1984.
(a) Civil Procedure ,Code (V of 1908)-7 ---O.XLIII, r.3--Appeal against order made during pendency of suit--Notice of such appeal to respondent mandatory--Appellant required to furnish with memo. of appeal affidavit of service of notice to respondent alongwith acknowledgment of receipt of same by him--Court allowing defendant to amend written statement--Plaintiff filing appeal without affidavit and acknowledgment as required under O.XLIII, r.3, C.P.C.- Subsequently only affidavit filed stating that notice of appeal despatched to respondents--Held, O.XLIII, r.3, Second Part, C.P.C. related to delivery of notice and memo. of appeal on respondent--Peformance under O.XLIII, r.3, C.P.C., held, was not a mere ritual requiring appellant to just issue a notice--Order XLIII, r.3 second part, required appellant to deliver to respondents notice of filing of appeal alongwith memo. of appeal etc. and also as a measure of caution to "obtain an acknowledgment of receipt thereof for information of appellate court"--Neither delivery of memo. of appeal to respondent was proved nor any acknowledgment of its receipt was produced--Service of notice on respondent, held further, was not a hollow formality but created a valuable right in respondent to effectively block passage of appeal by appearing in Court and with permission of Court to oppose its admission.
19. [p. 173) A & B AIR 1960 And. Pard. 331(337) and 1964 SC 536 ref.
20. Dino Manekiji Chinoy v. Muhammad Matin PLD 1983 SC 693 rel.
(b) Civil Procedure Code (V of 1908)-- ---0.XLIII, r.3--Appeal against order during pendency of suit--Service of notice on respondent before filing appeal--Importance--Provision of O.XLIII, r.3, C.P.C. held, highlighted fundamental importance of issuance of notice to respondent by appellant before presentation of appeal--Not only respondent became aware of fact that an interlocutory order issued in his favour had been challanged by an appeal but a right had been conferred on him to contest appeal at a limine stage with permission of Court with a view to getting appeal dismissed at that very stage and thus bring to a close litigation directed against an order passed pendente lite favourable to him-- Issuance of a notice to respondent before presentation of an appeal preferred against an order passed during pendency of a suit, held, was obligatory and no appeal could be entertained without notice. [P174] C Dino Manekiji Chinoy v. Muhammad Matin PLD 1983 SC 693
(c) Civil Procedure Code (V of 1908)-- - --O.XLIII, r.3--Appeal against order during pendency of suit--Stay order passed in presence of respondents and after allowing them full opportunity to contest prayer for stay--Irregularity of service on respondents,held, was cured by appearance of respondents. [p. 176]D
(d) Civil Procedure Code (V of 1908)-- - --O.XLIII, r.3--Appeal filed without meeting requirements of O.XLIII, r.3, C.P.C.--Consequences-- Respondent's plea that appeal was liable to dismissal for appellant's failure to comply with requirement of 0.XLIII, r.3, C.P.C., held, not supported by law in circumstances--Neither O.XLIII, r.3 provided for any penal action if appellant proceeded to file an appeal bye-passing preliminary requirement of informing respondent of the intended action nor its language was capable of spelling a bar to filing of appeal without such a notice.
21. [pp. 176, 177] B, F, G, H & Dino Manekiji Chinoy v. Muhammad Matin PLD 1983 SC 693; Muhammad v. Home Secretary PLD 1969 SC 333 and Mansab All v. Amir PLD 1971 SC 124 ref.
22. S. Inayat Ali and Sharaf Faridi for Appellant.
23. N.A. Farooqi for Respondents 1, 2 and 4 to 14.
24. Arfin & Co. for Respondent No.3.
25. Dates of hearing: 9th, 14th, 15th, 16th, and 17th May, 1984.
26. ' IBADAT YAR KHAN, J.--This High Court Appeal arises out of an order passed by a learned Single Judge, sitting on the Original side of this Court in Suit No. 101/1975. By this order the learned Judge has disposed of several applications which were filed by the plaintiffs and defendants under Order VI, rule 17, C.P.C. seeking to amend their pleadings. The learned Judge has allowed the plaintiffs to amend the plaint by correcting two typographical errors. One by changing a digit in the number of the cheque and the other by effecting a change in para. 12 of the plaint to show that plaintiffs were "limited" incorrporate company. The third amendment prayed for was however not allowed.
27. Plaintiffs seem to have reconciled themselves with the rejection of this part of the prayer and the learned counsel has made a statement at the bar that he is not pressing for revision of this part of the order.
28. ' The defendants had also applied for permission to amend their W.S. by adding a new para. to the W.S. they had already filed. This application was granted by the learned Judge and the defendants were allowed to amend their W.S. by adding the new para. to it. This has resulted in a grievance to the plaintiffs and they have filed this appeal against this part of the order. In para. "B" of the appeal the appellants/ plaintiffs have projected their grievance in the following words:- "The amendment applied for by the defendants set up a case which was not originally pleaded. It was a different and new case set up to fill up the lacuna and was not justified in view of the facts and circusmtances on record and the learned judge fell into an error in allowing it. The reasons given in the order fail to convince."
29. ' They now pray that the order of the learned Judge "allowing the amendment applied for by the respondents and keeping the respondents application under Order VII, rule 11, C.P.C. pending be set aside".
30. ' This appeal was filed on 6-8-1983 and before it could mature for final hearing it has run in procedural difficulties and the respondents have moved for its dismissal as it has been filed without complying with the mandatory provisions of rules 3 and 4 of Order XLIII, C.P.C. "Non- compliance of this mandatory provision of law is fatal to the maintainability of the appeal and as such it should result in the neonatal death of the appeal", so the learned counsel interprets the provisions of rule 3 of Order XLIII, C.P.C. As lengthy arguments have been advanced by the learned counsels and evidence has been recorded on this point it is proper to dispose of this controversy before proceedings to decide the main appeal.
31. ' Rules 3 and 4 have been added to Order XLIII, by amending Ordinance X of 1980. Rule 3 is as follows: "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."
32. ' The appeal was presented in the Registry of this Court on 6-8-1983 and the office made the following endorsement on the memo. of appeal on 12-10-1983.
33. "Returned again.
34. '
1. Notice to be served on respondents or their Advocates before instituting appeal or affidavit to that effect to be filed as directed by the Supreme Court. Compliance within a week."
35. ' On 14-11-1983, Mr. S. Inayat Ali, Advocate for the plaintiffs and one Muhammad Hanif son of Abdul Sattar, a Clerk in the appellate-Company, filed two separate affidavits stating therein that on 4-8- 1983, Mr. S. Inayat Ali addressed two separate notices to Mr. Naseem Farooqi and Mr. Mansoorul Arfin and through separate envelopes despatched these notices alongwith copies of memo. of appeal and the order appealed against through post under a certificate of posting. This is how Mr. Inayat Ali describes the event in his affidavit: "On 4-8-1983 I prepared two envelopes enclosing therein copies of the memo. of this appeal and 'order appealed against addressed to (1) Mr. Naseem Farooqui, Advocate and (2) Mr. Mansoorul Arfin, Advocate giving them advance intimation of institution of the appeal. I also prepared the certificate of posting under which they were to be posted. I then handed over the envelopes and the certificate of posting to Mr. Muhammad Hanif son of Abdul Sattar who is a clerk in the employ of the appellant to post them. The same day i.e. on 4-8-1983 Mr. Muhammad Hanif delivered to me the certificate of posting after doing the needful.
36. ' I have misplaced the certificate of posting and in spite of diligent search in my office I have not been able to trace it. I had got prepared photostat of the original certificate of posting and I am annexing hereto one of them marked 'A'."
37. ' Muhammad Hanif Clerk in his affidavit described that he collected these two envelopes from Mr. S. Inayat Ali and took them to the Liaquat Market Post Office where he posted them and obtained a certifi cate of posting which he brought back with him and handed it over to Mr. Inayat Ali.
38. ' The respondents at once contested this position. They moved an application under Order XIX, rule 2, C.P.C. seeking permission to cross-examine Muhammad Hanif on his affidavit of 14-11-1983 "for the purpose of establishing that the appeal is not competent and further that no stay in the circumstances is warranted." The D.B. as it was then constituted allowed this application and Muhammad Hanif was called and has been examined/cross-examined in Court by the respondents learned counsel.
39. ' It is not possible to reproduce here the lengthy and time consuming cross-examination of this witness. Sufficient it to say that the line adopted by the learned counsel seem to indicate that they are doubting the very fact that these notices were overhanded in the manner they are stated to have been processed. Suggestive questions were put to believe the story of their posting at all. So much so that it was suggested that even the certificate of posting bearing the seal of the post office and produced by the appellants is a forged document. That if at all these letters were posted as alleged by the appellants the envelopes did not contain the material like the copies of memo. of appeal and judgment appealed against. To lend support to this line of attack the learned counsel have prepared two envelopes, one containing all the documents and the other without the documents and questioned the witness to assess the weight of the two and answer whether the envelopes he had posted talled in weight with the former or the later. The two envelopes are a part of record and are marked as Exhs.A. and A-2.
40. ' In order to appreciate whether the requirements of the provisions of rule 3 of Order XLIII, were followed and complied with it is proper to see what these requirements are. Clause (1) of rule 3 consists of two parts. The first part relates to the issuing of the notice, the later receipt of this notice by the addressee, in other words the phrase "give notice of such appeal to the respondent or his Advocate" relates to the performance on the outgoing and while the later part by delivering (a copy of memorandum and grounds of appeal alongwith a copy of the order appealed against) and obtain an acknowledgment of receipt thereof of the information of the appellate Court" relates to the situation on the receiving end. Thus, even if the entire story put forth by the appellants is believed it could only fulfil the requirement of the first part of the rule.
41. ' The second part remains untouched. Can this second part be said to be complied with by either of the two established doctrines i.e. substantial compliance and presumptions. Learned counsel for the appellants wanted to argue that once it is proved that the envelopes were posted, a presumption under section 114 of the Evidence Act arises in his favour whereunder their safe passage and delivery to the addressee should be presumed. Section 114 of the Evidence Act is as follows:- "Court may presume existence of certain facts. The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case."
42. ' This presumption is not absolute, like any presumption. This presumption is also open to attack and in the present case the learned counsel for the respondent has cited a case from Indian jurisdiction: A 1 R 1960 Andh Pra. 331(337).
43. ' In this case the dispute was whether a transaction of sale of oil cakes had taken place on 6-7- 1951. The defendants case was that the plaintiff, by fraudulently changing the date on certain documents relating to an earlier admitted transaction were using the same documents to prove the sale on 6-7-1951 which had never taken place.
44. ' In order to show their bona fide plaintiffs proudced a certificate of posting, dated 13-7-1951 as presumptive evidence in support of their contention that under this certificate, bills were sent to defendants claiming the price of the goods. The contention raised was that a presumption under section 114 of the Evidence Act could be raised in their favour that the envelopes containing the bills sent to the defendants under the postal certificate were delivered to the defendants in due course.
45. This arguments was examined and rejected by the Court. The observations of the Court dealing with this point are quoted below:- "The next contention on behalf of the appellant is based on Exh.A-4, a certificate of posting bearing the date 13-7-1951. The argument is that this document is presumptive evidence of the bill, dated 6-7-1951 having been sent to the defendant on the 13th. As to this, the first appellate Judge refused to believe P.W.1's evidence that he had sent the bill because, if the trans action were true, P.W.1 would have sent the bill to the defendant by registered post. The learned Judge, therefore, believed the defendant's version that he had never received any such bill. It is, however, contended by the learned Advocate for the appellant that the certificate of posting is prima facie evidence that some letter had been sent to the defendant on 13-7-1951 and in the ordinary course of events, the letter would have reached the defendant on the next day. For this proposition he relies on the presumption under section 114 of the Evidence Act. Section 114 relates to presumptions of fact and such presumptions may be drawn, in the language of the section, "in their relation to the facts of the particular case." Only upon proof that a letter had been actually posted, can a presumption arise of the letter having reached its destination in due course. In this case the certificate of posting Exh.A.4 cannot be held to be proof of the actual posting of the bill in question. Like other documents produced in this case by the plaintiff Exh.A.4 is not free from suspicion. It shows that two names are noted there, the first name is someone else's and the second name is that of the defendant. These names were not written by the postal authorities but by someone on behalf of the plaintiff. The post stamp bearing the date 13-7-1951 is below these two entries. In my opinion it is more than likely that the second entry in this certificate of posting must have been added subsequently, to suit the exigencies of this case. It is also worthy of note that in Exh.B.19 sent on 19th July, there is not even a hint of a bill having been sent to the defendant on the 13th while in Exh .B.23 sent on 31st July and in the plaint filed on 22nd October although it is mentioned that a bill had been sent by post on 13th July. it is not stated that the bill had been sent under a certificate of posting. In these circumstances Exh.A.4 has no evidentiary value, and the lower appellate Court was amply justified in brushing it aside."
46. ' Another case cited at the Bar is PLD 1964 SC 536. The majority view in this case is relied upon. In this case Kaikaus, J.-dissented from the majority view of the Court on the interpretation of section 30 of the Displaced Persons Rehabilitation and Settlement Act. The majority view was that strict compliance of all the ingredients of section 30 was necessary. It was held that even the occupant of the Evacuee property for whose benefit the section was enacted could not contract out of it relieving the transferee of the property from strict compliance because compliance of section 30 in all its details was a matter of public policy rather than a mere protection for an individual tenant.
47. Kaikaus, J. dissented from this view and expressed contrary opinion. This case if at all relevant for the purposes of the present case loses its force in view of the case of Dino Manekiji Chinoy which is a direct authority on the point and is the law declared so far as this Court is concerned.
48. 'The second part of the rule relates to delivery of the notic and the memo. of appeal on respondent.
49. ' If the performance under rule 3 is not a mere ritual requiring the appellant to just issue a notice then the second part calls for attention. The rule requires the appellant to deliver to the respondents or their Advocate the notice of filing of the appeal alongwith the memo. A of appeal etc. and as a measure of caution to "obtain an acknowledgment of receipt thereof for the information of the Appellate Court". It is plain that this part of obligation was never performed.
50. Neither the delivery of the memo. of appeal to the respondent is proved nor any acknowledgment of its receipt is produced.
51. ' The service of the notice on the respondent is not a hollow formality. It treats a valuable right in the respondent to effectively B block the passage of the appeal by appearing in Court and with permission of the Court to oppose its admission.
52. ' This rule came under scrutiny of Supreme Court in the case of Dino Manekiji Chinoy v. Muhammad Matin PLD 1983 SC 693. This is how Dr. Nasim Hasan Shah, J. analysed the two sub-rules (3) and
(4) of Order LXIII, at page 700 in paras. 16, 17 and 18 of the judgment.
53. "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 and 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 entertainability of the appeal.
17. Sub-rule (2) of rule 3 provides that on receipt of the notice referred to in sub-rule (1), the respondent may with the permis sion of the Court, appear before it and contest the appeal with a view to getting it dismissed in limine, 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 interlocutory 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 limine 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 favourable 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, infutile 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 provisions of this beneficial rule are given effect to in letter and spirit that the officers responsible for inter alia receiving and scrutinising appeals preferred against the interlocutory orders made during the pendency of a suit of all the Courts concerned, do require the appellant or his Advocate to submit, alongwith 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 alongwith a copy of the order appealed against and shall also attach with the said affidavit a copy of the acknowledgment 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 acknowledgment receipt should not be entertained."
54. ' I would, therefore, keeping aside the academic discussion whether in the legal phraseology the rule should be labelled as Directory or Mandatory respectfully borrow the reasonings from the judgment of my Lord Dr.Nasim Hasan Shah and contend to hold that issuance of the notice and its service on respondent postulated by this rule was "obligatory". The appellant in this case has failed to discharge this obligation.
55. ' On this finding the learned counsel for the respondent invites us to hold that for breach of this obligation the appellant should be non-suited and condemned unheard and his appeal should be dismissed in limine. He relies on two judgments of the Supreme Court Jan Muhammad v. Home Secretary PLD 1969 SC 333 and Mansab All v. Amir PLD 1971 SC 124. The point raised and decided earlier in the case of Jan Muhammad and reaffirmed in the case of Mansab All arose in the follwoing circumstances.
56. ' One Amir All accused of murder of one Rutallon was challaned and was put on trial under the general law. While inquiry under Chapter XVIII of the Cr.P.C. was pending the Commissioner, Sargodha Division by order, dated 21-7-1964 passed under section 5 of the West Pakistan Criminal Law (Aamendment) Act, 1963 referred the question of the guilt or the innocence of the accused for determination to a tribunal under that Act.
57. The Tribunal found the accused guilty and recommended that they should be sentenced to ten years, rigorous imprisonment each. The D.M. Sargodha accepted the recommendation and convicted the accused accordingly on the 10th December, 1964. Aggrieved by their convictions the accused filed a revision petition under section 19 (2) of the Criminal Law (Amendment) Act before the Commissioner, Sargodha, raising numerous objections on the merits of the trial. No complaint was however, made that they were not heard by the Commis sioner before a reference was made to the Tribunal. The Commissioner dismissed the revision petition and acting suo motu enhanced sentence to fourteen years, rigorous imprisonment each.
58. ' It is not relevant to mention the intermediary details and proceedings that followed. Suffice it to say that finally the accused challenged the order of reference, dated 21-7-1964 made by the Commis sioner on the ground that the Commissioner had failed to give a notice and provide an opportunity in terms of section 18 of the Act to enable them to show that the order of reference under section 3 was incompetent. As the Commissioner had failed to give notice and provide an opportunity of being heard to the accused before he passed the order of reference to the Tribunal they were deprived of a right of appeal to the Provincial Government against that order. The S.C. accepted this plea, set aside the convictions and held: At page 127.
59. "If it was a necessary condition for the proper exercise of jurisdiction by the Commissioner under section 3 of the Criminal Law (Amendment) Act to give notice to the respondent, before referring the question of the guilt on innocence to the Tribunal, then failure to comply with this requirement rendered the order of reference illegal and void."
60. ' Although in the above case there are quite a few features bearing close similarity to this case, yet it cannot be said that in every case where a notice is a statutory requirement or has been adopted as a rule of purdence the entire proceedings that would follow without such notice should necessarily be struck of and the out-come should be reversed. Nor indeed, in view of a direct authority on the subject it is open to us to reach a conclusion different from the dictum laid down by the Supreme Court in the case of Dino Manekji Chinoy where it is clearly laid down that rule 3 of Order XLIII, is a procedural law and it should not be allowed to stand as a stumbling block to thwart instead of facilitating and advancing the cause of justice. It was further held that if the respondent in response to a pre-admission notice issued by the Court has entered appearance it should be deemed to be substantial compliance of the rule; because the rule has been followed in spirit and the object for which it was enacted has been satisfied.
61. Now it remains to be seen what is the effect of the failure of the appellant to fulfil the requirement of rule 3 of Order XLIII, and how the situation that has been created on account of failure of the appellants should be dealt with. Whether the appeal should be dismissed without hearing as vehemently argued by the respondent. To answer this question a glance on the diary sheet would be helpful.
62. ' The order sheet shows that the appeal was filed on 6-8-1963, office raised the objection of non- compliance of Order XLIII, rule 3. On 14-11-1983, two affidavits were filed on behalf of the appellants making averments that a notice and copy of memo. of appeal had been posted to the respondent on 4-8-1984, the appeal was admitted to regular hearing by Court.
63. ' On 11-2-1984, application No.140/84 under Order XLI, rule 5, C.P.C. was moved by the appellants praying for "stay of operation of the impugned order passed by the learned Single Judge till the disposal of the appeal".
64. ' On 16-2-1984, Mr.Naseem Farooqui and Mr. Mansoor-ul-Arfeen appeared in Court to represent the respondents. Both learned counsel waived notice of the application under Order XLI, rule 5 and some other applications that were pending. On 27-2-1984, respondents counsel moved an application under Order XIX, rule 2, C.P.C. praying therein that the Court be pleased to direct that deponents Iqbal and "Muhammad Hanif who has sworn affidavit on 14-11-1983 to be present in Court on all dates of hearing for his cross-examination as well. The said cross-examination is for the purposes of establishing that the appeal is not competent and further that no stay in the circumstances is warranted." Thereafter, the hearing of the application was fixed on several dates and by consent of parties, was adjourned from time to time.
65. ' On 25-4-1984, among others, the application for stay of proceed ings (C.M.A 140/84) also came up for hearing in presence of the counsel for the appellants and Mr.Nasim Farooqui and Mr.Mansoor- ul Arfin learned counsel for the respondents. The Court disposed of this application by its order, dated 25-4-1984. The portion of the order relating to this application is as follows: "This suit was filed in the year 1975, and if suit is allowed to. proceed on the basis of the amended written statement and subsequently the appeal is allowed that would cause not only inconvenience to the parties but might also cause inconvenience to witnesses. We would however, direct that the appeal, being against the interlocutory order will be heard in the second week of May, 1984."
66. ' This stay has been extended from time to time and is still operating. It will be seen from the above narrative that order staying the proceedings passed on 25-4-1984, has been passed after full knowledge and understanding of the counsel for the respondents who had entered appearance on 16-2-1984 and had waived notice. The order has been passed in their presence and after allowing them full opportunity to contest the prayer for stay. As such the irregularity of service of notice upon them is cured by the appearance of the respondents and D this is in consonance with the view expressed by their Lordships of the Supreme Court in the case of Dino Manekji Chinoy.
67. ' The real difficulty, however arises when the respondents learned counsel insists that the appeal "should be dismissed". I would now examine this part of his argument. The first thing to be noted in this connection is that the rule itself does not provide for any penal action if the appellant proceeds to file an appeal by-passing the preliminary requirement of informing the respondent of the intended action. Nor the language of the rule is capable of spelling a bar to the filing of the appeal without ' such a notice as was the case with section 80, C.P.C. which was to the following effect before amendment:- "No suit shall be instituted against the Government, or against a public officer in respect of any act purporting to be done by such public officer in his official capacity,, until the expiration of two months next after notice in writing has been delivered to or left at the office of."
68. ' Rule 3 is couched in different language. The prohibitive concept attached to the right of filing a suit without notice is not there. While the right to file an appeal is preserved in tact, it is subjected to a rider of additional duty to be fulfilled before the right is exercised. But if the rider is shaken of and the appellant relying on the dictum laid down in the judgment of the High Court (PLD 1983 Kar.
69. 387), which was yet under appeal before the Supreme Court, files the appeal in Court and the Court admits the appeal to regular hearing can or should the process be reversed. Stage of filing has passed. The compliance of the rule could be insisted upon at the time of filing/ entertainment of the appeal. The Court could refuse to entertain the appeal. But that stage has been passed. The appeal has not only been entertained but after a preliminary hearing admitted to regular hearing.
70. The best that could be done was to recall any adverse order, rehear the matter after due notice to the respondents. No such grievance is raised and the main appeal has been heard in Court for five days or so and the respondents had full share out of this long time to put forth their point of view in Court.
71. 'Not being a case where orders are challenged under the doctrine of actions corum non judice, if admission order is recalled this appeal would dip down to a level of pre-admission stage to surface up again as soon as the rider of notice is lifted.
72. ' In my view, the disability in the present case relates to the initial and earliest stage and to borroW with respect the observations of his Lordship Dr.Nasim Hasan Shah in the case of Dino Manekji Chinoy "Any appeal which is not accompanied by such an affidavit and a copy of the acknowledgment receipt should not be entertained".
73. ' Now its a transaction past and closed. That stage is passed. If the respondents have suffered any prejudice or injury on account of the order of admission in absentia surely they are entitled to a redress and the Court would try to restore status quo anti as soon as such a prejudice, if any is brought to its notice. But no such prejudice is pointed out and in the circumstances, to refix the appeal for summary hearing would be nothing but an exercise in futility causing delay and thus defeating the very object for which the rule has been enacted.
74. ' It is no body's case that the appellants had no right to file this appeal or the Court lacked jurisdiction to hear and admit the appeal to regular hearing.
75. 'The appellant cannot be deprived of his valuable right of an appeal for violation of rule of procedure when no prejudice is shown to have been caused and the injury if any has been fully repaired by their own waiver to the notice of hearing in the earliest stages when no interim order was yet passed.
76. The prayer for dismissal of appeal has no merit and is rejected. The appeal should be heard on merits.
77. NAIMUDDIN, J.--I agree.