' The petitioners filed a suit for a declaration that they were owners in possession of the suit land as bona fide purchasers for value and in the alternative were owners through adverse possession.
Usual consequential relief for perpetual injunction was also claimed. Alongwith the suit they filed an application for issuance of a temporary injunction which was dismissed by the learned Civil Judge, Mailsi, vide order, dated 12-2-1986. The petitioners filed an appeal which was dismissed by the learned Additional District Judge, Vehari vide order, dated 6-4-1986 on the sole ground that the same had been filed without complying with legal requirement contained in Rule 3 of Order XLIII of the Code of Civil Procedure, 1908. The present petition has been filed to challenge the said order of the learned Additional District Judge.
2. I have perused the record and have heard the learned appellate Court the receipts of the Postal Department showing that notices had been despatched to the addressee mentioned therein. An affidavit was also filed that such notices had been issued before the filing of the appeal. The postal receipts do not show the date on which the same were despatched but the same were despatched either on 14-2-1986, the day on which the memorandum of appeal was prepared, or on 15-2-1986 the day on which the said appeal was filed. Naturally the same could not reach the addresses by the time the appeal was to be taken up for preliminary hearing. In any case no receipt of the respondent or their counsel was obtained and as a consequence, none was filed alongwith the appeal as required by Rule 3 ibid. No acknowledgment receipt received back through Postal Department has been placed on record and no envelope which could have been returned on account of non-delivery has been placed on record. Learned counsel for the respondents showed during the arguments a returned envelope addressed to Muhammad Shafi respondent No. 4 and no other such envelope could be produced. Even the said envelope showed that name of the sender was not given on the same and on account of non-delivery of the same it had to go to the Dead Letter Office,. Lahore where it was opened and then sent back to the sender.
May be notices through registered post were sent but there is nothing on record to show that the same were sent on correct addresses and within time. However, one thing is sure that no such notice in any manner was sent to respondents Nos. 1 and 2 who are the only contesting defendants/ respondents. Therefore, whether the notices etc. Were sent through registered post or not has no bearing on the case as one thing is clear that no notice etc. Was either sent to the contesting respondent by post or was delivered to them otherwise. As such the appeal filed before the learned Additional District Judge was filed without compliance with the requirement of Rule 3 of Order XLIII, C.P.C. The only question, therefore, remains to be seen is the legal effect of the said non- compliance. From both the sides the learned counsel have quoted the same case-law on the point which is as follows:-
(1) Mrs. Dino Manekji Chinoy and 8 others v. Muhammad Matin PLD 1983 SC 693.
(2) Messrs Haji Suleman Gowawala & Sons Ltd. v. Usman and 13 others 1985 CLC 168;
(3) Munir Ahmad v. Fateh Muhammad and 2 others PLD 1985 Lah. 169;
(4) Siraj Din and others v. Province of Punjab 1984 CLC 1287;
(5) Muhammad Shan v. Sh. Muhammad Amin and another 1984 CLC 1528; and
(6) Muhammad Siddique and 6 others v. Boota PLD 1985 Lah.
243.
' The first mentioned case decided by the Honourable Supreme Court is the leading case on the point. A perusal of the same will show that it was held therein that an appeal preferred without compliance of Order XLIII, Rule 3, C.P.C. Is not competent and is not entertainable. However, as the case had been decided by the High Court in appeal it was held that it was a closed and past transaction and the matter required no interference. In the cases cited at Nos. 2 and 3 above similar was the position. Apart from that the case at No. 3 was a guardian case dealt under the Family Court Act, 1964 and obviously the provisions of the C.P.C. Are applicable to such cases directly. Only the principles of the same are applied in the family cases and not the C.P.C. Itself.
Therefore, Order XLIII, Rule 3, C.P.C. Did not apply to that case directly. The cases at Nos. 4 to 6 are directly on the point now under discussion. It was held in the same that the provisions contained in Order XLIII, Rule 3, C.P.C. Were mandatory and the non-compliance of the same will entail dismissal of the appeal. I am in respectful agreement with the law laid down in the said rulings at Nos. 4, 5 and 6. The same also show that such an appeal can be dismissed even after the same had been admitted. I would like to add that the purpose for which Rule 3 ibid it was added by Ordinance No. X of 1980 is two-fold, one that by the summoning of the record from the lower Court the proceedings in the pending case may not become automatically stayed as in fact the same should proceed unless the proceedings are specifically stayed by the appellate Court and the other purpose was to give a chance to the opposite party to appear at the preliminary stage when the appeal comes before the appellate Court for preliminary hearing for admission purposes so that if on hearin the parties the case is dismissed in limine the opposite party is saved from prolonged litigation. It is obvious that when an appeal is admitted it takes time in disposal in its own turn and when the appeal is admitted the proceedings before the lower Courts are also stayed. This results in the delay in disposal of the case which can conveniently be disposed of at the stage of preliminary hearing if the opposite party gets the notice etc. Within time. If the provisions contained in the said ruling was not mandatory there was no purpose to enact the same. The provisions carry the word 'shall' and have to be complied within letter and spirit and in fact it has been so held by the Honourable Supreme Court in the case cited at No.
1. In the present case no compliance of Rule 3, Order XLIII, C.P.C. Was made by the petitioners and they have to suffer as a result thereof. The learned Additional District Judge rightly dismissed the appeal on that account. The revision petition is, therefore, dismissed.
3. No order as to costs.
Revision .