' Facts giving rise to this appeal are that the respondent, Boota, filed a suit against the appellants, Muhammad Siddiq and others, for possession of certain land through pre-emption. The suit was resisted by the appellants, inter alia, on the ground that it was for partial pre-emption inasmuch as one of the vendees, namely, Muhammad Inayat, had not been impleaded as a defendant. This plea was accepted by the Civil Judge who was seized of the suit. Accordingly, the suit was dismissed by him. The respondent preferred an appeal against the judgment and decree of the learned Civil Judge. Along with this memorandum of appeal, he filed an application, under Order VI, rule 17 of the Code of Civil Procedure, for permission to amend the plaint so as to imptead Muhammad Inayat as a party to the suit. This application was allowed by the learned Additional District Judge who heard the appeal. Resultantly, he accepted the appeal, set aside the judgment and decree of the learned trial Court and remanded the suit under Order XLI, rule 23-A of the Code of Civil Procedure, with the direction that the amended plaint shall be tiled before the Court below which shall adjudicate upon the suit afresh after allowing an opportunity to the parties to lead evidence if they so liked. Feeling aggrieved by the order of the learned Additional District Judge, the appellants have come up in appeal to this Court.
2. A preliminary objection raised by learned counsel for the respondent against the instant appeal was that it was not competent inasmu ch as no notice was given to the respondent, under Order XLIII, rule 3 of the Code of Civil Procedure, before tiling the appeal. In this connection, reliance was placed by him on Mrs. Dino Manekji Chinoy and others v. Muhammad Malin (1), Siraj Din and others v. Province of Punjab (2) and Muhammad Shafi v. Sh. Muhammad Amin and another (3).
3. In reply, it was contended by learned counsel for the appellants that rule 3 was not attracted to the instant appeal. His argument was that rule 3 was applicable to an appeal against an interlocutory order passed by a trial Court but since the order assailed in the present appeal was not such an order, it was not necessary to give notice of this appeal to the respondent before its presentation. It was also maintained by learned counsel for the appellants that there was no suit pending before the trial Court at the time when the appeal was presented, because the amended plaint had not been filed by them. Additionally, it was submitted by learned counsel for the appellants that the appellants had given notice of the appeal to the respondent on the same day when the appeal was filed.
4. Rules 3 and 4 were inserted in Order XLIII of the Code of Civil Procedure by means of the Code of Civil Procedure (Amendment) Ordinance, 1980. These rules read 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 along with 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, Mut atis mutandis, apply to all applications filed before an appellate Court during the pendency of a suit."
5. According to rule 3, notice is required to be given to the respondent before presenting an appeal, during the pendency of a suit, and rule 4 obliges a party making any application before the appellate Court, during the pendency of a suit, to give notice of the application to the opposite party. Object behind these rules appears to be to ensure that disposal of suits is not delayed by tiling appeals on flimsy grounds or by making 'frivolous applications before the appellate Courts during the pendency of
(1) PLD 1983 SC 693 (2) 1984 CLC 1287
(3) 1984 CLC 1525 suits. According to the said rules, by which caveat system has been prescribed, the party against whom such appeal or application is filed can oppose it at the limine stage, with the permission of the Court, and can be awarded costs in the event of dismissal of the appeal or application, as the case may be, in limine. There is nothing in rule 3 suggesting that the appeal should necessarily be against an order passed by the trial Court.
' If the makers of the rules intended to confine the scope of rule 3 to the orders of the trial Court only, they would have initead of the words "Where an appeal against an order is preferred during the pendency of a suit", now occurring in rule 3, used the words "Where an appeal against an order of the trial Court is preferred during the pendency of a suit," but since this was not done, we cannot read into rule 3 what the framers of the rules have not provided therein. It appears that by employing the present phraseology of rule 3, they wanted to make its provisions applicable to any appeal preferred during the pendency of a suit, regardless of the fact that the order appealed against is passed by the trial Court or by an appellate Court. It is also noteworthy that if operation of the caveat system was to be restricted to orders passed by the trial Court only, rule 4 would not have been enacted to make it obligatory for a party before the appellate Court, whether as appellant or respondent, to give notice of an application to the opposite patty before making such application to the appellate Court, during the pendency of a suit. Possibility of such an application being directed against an order of the appellate Court cannot be ruled out. For instance, if the appellate Court issues a stay order and application is made for the vacation thereof, it will be application qua the order of the appellate Court and not in respect of the order of the trial Court. Addition of rules 3 and 4 was aimed at ensuring that during the pendency of a suit no party should obtain any order from the appellant Court, by filing an appeal or application, at the back of the other party, so as to delay the progress of the suit. I am, therefore, clear in my mind that under rule 3 a notice is required to be given to the respondent before filing an appeal during the pendency of a suit irrespective of the fact that the appeal is preferred against an order of the trial Court or that of an appellate Court.
6. Now I proceed to examine the plea of learned counsel for the appellants that there was no suit pending when this appeal was filed. The impugned order by which the suit was remanded by the learned Additional District Judge was passed by him on 3rd February, 1982 and this appeal was presented on 13th February, 1982. The suit remanded on him became a suit pending before the trial Court as soon as the order of remand was made. Even if the amended plaint had not been put in by the appellants, in pursuance of the direction of the learned Additional District Judge, before presentation of the appeal, it will make no difference because the revival of the suit was not dependent on the filing of the amended plaint. The suit was revived as soon as the remand order was passed on 3rd February, 1982. I am, therefore, of the considered view that the suit was pending when the appeal was preferred on 13th February, 1982.
7. This brings me to the submission of learned counsel for the appellants that notice of the appeal was given to the respondent. According to a note appearing at the end of the memorandum of appeal, the notice was issued by registered post, acknowledgment due, on 13th February, 1982. It was on the same date that the instant appeal was presented before this Court. A copy of the notice is on the record but there is no postal receipt- on the record showing that it was actually despatched It is, therefore, not certain that the notice was, in fact, issued. Even if the notice was issued on the said date, it is of little consequence. Under rule 3, the appellants were required to give notice of the appeal to the respondent or his Advocate by delivering a copy of memorandum and grounds of appeal along with the copy of order appealed against and obtain an acknowledgment of receipt thereof for information of the appellate Court. As ruled by the Supreme Court in the case of Mrs. Dino Manekji Chinoy and others, relied upon by learned counsel for the respondent, acknowledgment of receipt of notice should have been obtained by the appellants before filing the appeal inasmuch as it was required to be presented to this Court along with the appeal. This was, however, not done by them. It is not their case that on 13th February, 1984 they gave notice to the respondent or his Advocate, by hand, and after getting an acknowledgment of receipt thereof presented the appeal on the same day. As indicated above, the appellants' plea is that the notice was sent by registered post, acknowledgment due. Question of their obtaining acknowledgment receipt before filing the appeal, therefore, did not arise because the notice was despatched on the day when the appeal was presented. Copy of the impugned order, dated the 3rd February, 1982, was delivered to the appellants on 4th February, 1984 but they did not give notice of the appeal for nine days following delivery of the copy to them. In view of the period of limitation prescribed for filing the appeal, they could wait for acknowledgment of receipt of notice issued by them and then file appeal on getting the acknowledgment receipt but they hurriedly preferred the appeal much before expiration of the period of limitation, of course, at their own risk and cost. There was no hurry in presenting the appeal because the appellants, being the vendees; were already enjoying possession of the land pre-empted by the respondent, and even if the respondent had quickly filed the amended plaint, as directed by the learned Additional District Judge, the suit was not likely to be decided before running out of the period of limitation. I may add here that acknowledgment receipt regarding the notice alleged to have been issued by the appellants has not been placed on the record even up til this moment. In the circumstances, it is doubtful that the notice in question was actually despatched. Even if it was despatched, it is of no help to the appellants because there is no acknowledgment receipt or any other evidence showing that the notice was, in fact, delivered to the respondent.
8. In view of the above discussion, I hold that it was necessary for the appellants to give notice of this appeal to the respondent before its presentation but it was filed without serving its notice on the respondent and obtaining acknowledgment of the receipt thereof. In view of the case of Mrs. Dino Manekji Chinoy and others, Siraj Din and others and Muhamma Shafi, cited by learned counsel for the respondent, it was conceded by , learned counsel for the appellants that if it was necessary to give notice' of the appeal to the respondent before its presentation, the appeal would not be entertainable and would be liable to be dismissed despite its having been admitted to a regular hearing. I, therefore, agree with learned counsel for the respondent that this Appeal is not competent. It is, accordingly, dismissed for being not entertainable, without expressing any opinion on the merits of the appeal. Parties are left to bear their own costs.
9. Before closing, I would like to point out that it is not infrequently that disposal of suits is delayed not only by filing appeals but also by making revision petitions which ultimately fail, Provisions of rules 3 and 4 do not take care of revision petitions or the applications made therein. Framers of the rules may, therefore, consider the desirability of extending application of rules 3 and 4 to the revision petitions as well.
10. A copy of this judgment shall be sent to my learned brother Mr. Justice Irshad Hassan Khan, Secretary, Ministry of Justice and Parliamentary Affairs, Government of Pakistan, Islamabad.
Another copy of it shall be placed before my learned brother Mr. Justice Abdul Shakurul Salam, Chairman of the Rules Committee, constituted for this Court, under section 129 of the Code of Civil Procedure.