1. ' The facts of the case are, that the applicant was selected and appointed as Deputy Superintendent of Police by the Respondents in 1974. On 31-10-1977 the services of the applicant were terminated without assigning any cogent reasons. The applicant then made various representations to the respondents against the termination of his services and ultimately the respondents issued a notification, dated 1-5-1984, reinstating the applicant in service, however, the applicant was required to clear a rifle firing test of the police department and also to appear in a written test in general knowledge. Both these tests could not be cleared by the applicant and his request for supply of marks sheet was also turned down by the respondents. Consequently, the applicant filed a suit against the respondents before the Senior Civil Judge, Sanghar, seeking declaration and injunction to restrain the respondents from acting upon the general knowledge test, etc. An application for grant of interim relief was also filed by the applicant before the learned trial Court and on 14-9-1986 the learned trial Court granted ad interim injunction in favour of the applicant. On 27-9-1986 the ad-interim injunction granted by the learned trial Court was further extended till final disposal of the injunction application. Aggrieved by such orders, the respondents filed an application before the learned District Judge, Sanghar who vide his judgment, dated 8-12- 1986, allowed the appeal and suspended the orders, dated 14-9-1986 and 27-9-1986 passed by the learned trial Court.
2. ' Admittedly, the judgment was passed by the learned District Judge without compliance being made by the respondents with the provisions of Order XLIII, Rule 3, C.P.C. Which was added to C.P.
3. Code by Ordinance X of 1980 Rules 3 and 4 of Order XLIII provides as under:- "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 acknowledgement 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."
4. ' Rule 3(i) clearly makes it incumbent on the appellant to give notice of 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 also to obtain an acknowledgement of receipt thereof for the information of the appellate Court, in all cases where an appeal against an order is preferred during the pendency of a suit. Sub-rule (3) gives a right to the respondent to appear before the Court and contest the appeal with permission of the Court and the Court has been empowered to award costs to the respondent on dismissal of the appeal in limine Rule 4 further provides that the provisions of rule 3 shall, mutatis mutandis, apply to all applications filed before an appellate Court during the pendency of a suit. In Mrs. Dino Manekji Chinoy and eight others v. Muhammad Mateen PLD 1983 SC 603 while referring to the above provision, it was held by the Supreme Court that: "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, inutile and negatory. 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."
5. ' The above passage quoted from the judgment of the Supreme Court makes it abundantly clear that compliance with the provisions of Order XLIII Rule 3 is mandatory and a condition precedent for exercise of jurisdiction by the appellate Court. Since admittedly the learned appellate Court proceeded and decided the appeal without such provisions being complied with by the respondents in the case, the judgment of the learned appellate Court suffers from an illegality which is not curable.
6. ' Mr. Syed Sarfraz Ahmed, the learned A.A.-G. Who appeared on behalf of the respondents in the case, however, argued that the order passed by the learned trial Court was without jurisdiction and if the judgment of the appellate Court is set aside, the order passed by the learned trial Court would again hold the field. Be that as it may, but the respondents have only to blame themselves for such a situation. Since the proceedings before the appellate Court were not properly initiated and suffered from an obvious defect, the same cannot be allowed to stand either. However, I do not think that the respondents would be completely left without a remedy against the order passed by the trial Court.
7. ' For the aforesaid reasons, the revision application is allowed and the judgment of the learned appellate Court is set aside. The parties are, however left to bear their own costs.