1. This is a defendant's revision application directed against concurrent order passed by the Courts below granting a temporary injunction sought by the plaintiffs respondents in a suit instituted by them against the defendant/applicant for a declaration that the plaintiffs are entitled to construct a building in accordance with the plan submitted by them and the said plan stands duly approved on lapse of sixty days and restraining the applicant from interfering with the building operations of the plaintiffs on the plot in suit. The temporary injunction sought was also restraining the defendants from interfering with the building operations.
2. The facts relevant for the disposal of the revision application are that piece and parcel of the land bearing Survey No. 13, sheet No. FT-4 admeasuring 4,524 square yards is situated at Frere Town Quarters, main Clifton Road. Karachi. The plaintiffs purchased the above said plot from Hefeez-ur- Rehman and others through registered sale-deed. The above plot is situated on main Clifton Road and the frontage of the plot abuts on the main Clifton Road while the portion of it faces Bath Island.
3. It is alleged in the plaint that the entire area on the side of the main Clifton Road is commercialised or at least is being used as such. The power to permit and utilize the plot for commercial purposes vested in K.M.C who has in principle agreed to allow the commercialisation of the plot in suit on payment of Rs. 400 per square yard as the fees of the commercialisation. 1t is alleged that the defendant/applicant is an authority created under the provisions of the Sind Building Control Ordinance and is assigned certain functions with respect to the approval of the building plan.
4. It is the case of the respondents that the respondents in accordance with the provisions of Sind Building Control Ordinance, submitted the plan for construction of one plus two storeys residential- cum-commercial building on the said plot. The applicant refused to accept the same on which the respondents approached the Director-General, K.DA., who ordered the applicant to accept the plan and process the same on 21-1-1987. It is the case of the respondents that they do not intend to use the building for commercial purpose unless all the formalities as required for such use are completed. In the plan the respondents propose to construct two town houses on the back side of the plot in suit abutting the road leading to Bath Island. It is further alleged that the respondents are thus not using the plot in suit for commercial purpose in so far as the Bath Island side of the plot is concerned. The respondents made enquiries from office of the applicant and they were informed that the matter was under consideration. It is the case of the respondents that the applicant failed to pass any order refusing permission to carry out the building work proposed in the building plan submitted by them on 21-1-1987. Therefore, under Article 13 of Karachi Building and Town Planning Regulations Part I as framed by the applicant in pursuance of the powers vested in it under the Sind Buildings Control Ordinance, the plan submitted by the respondents is deemed to have been sanctioned to the extent, it does not contravene the provisions of these regulations. It is the case of the respondents that the respondents have served the applicant with the notice as prescribed by Article 13(3) of the aforesaid Regulations. It is the case of the respondents that the plan is perfectly in order, strictly in accordance with the rules and regulations framed by the applicant and does not in any manner whatsoever, to the knowledge of the respondents, contravene any of such regulations.
5. It is the further case of the respondents that having served the applicant, with a requisite notice the respondents as a matter of right are entitled to start their building operation on the plot in suit and the applicant or any person or persons claiming through/under it is not entitled to interfere with the said building operation. There respondents have collected material and made preparations to commence the building operations on the plot in suit, but the applicant is extending threats that it will not allow the respondents to commence or carry on the building operations. The respondents have invested a huge amount in purchase of the plot in suit and also got it surveyed, levelled and made preparation of the plans for the use of the plot for the purpose of raising construction of- residential-cum-commercial building. The respondents have also invested huge amount for purchase of building material by employing qualified experts/engineers and architects and other personnel to commence or carry on the necessary building operations. The respondents filed the present suit for the following reliefs:- "(1) Declaration that the respondents are entitled to construct the building in accordance with the plans submitted by them which stands duly approved on lapse of sixty days.
(2) An injunction restraining the applicant from interfering with the building operations of the plaintiff on the plot in suit. N.P. Alongwith the suit, an application for temporary injunction in the same terms as the reliefs claimed in the suit was moved by the respondents. This was contested by the applicant. The trial Court granted the application of the respondents on the following findings:-
(1) The respondents are owners of the plot in suit and under the law they are entitled to use and enjoy the same as they like, within the four corners of law.
(2) It is an admitted fact that they submitted the proposed building plan vide application dated 21- 1-1987 and more than 60 days have passed but no order has been passed on the same by the applicant.
(3) It shall be treated to have been sanctioned.
(4) The respondents had a good prima facie case and the balance of convenience is also in their favour.
6. Being aggrieved with the above order, the defendant applicant filed an appeal. The appellate Court has endorsed the above findings of the trial Court and hence this revision.
7. Learned counsel for the applicant has mainly concentrated his argument at attacking the correctness and legality of the finding recorded by Courts below to the effect that the respondent- applicant did not submit any plan on 21-1-1987. The discretion was. Not properly exercised and both the Courts below have gone out of the scope of the suit by passing order for commercialisation by implication. Mr. Muhammad Sharif, the learned counsel for the plaintiff/respondent has combated the submission made by the applicant .Contending that the Courts below having concurrently granted injunction, this Court should not interfere with the order/judgment passed by the Courts below in its revisional jurisdiction. He has further submitted that the respondents moved the plan alongwith the letter and the Courts below have not gone beyond the scope of the suit.
8. The respondents filed suit against the applicant for declaration and injunction alleging therein.
9. That they are the undisputed owner of a plot measuring 4,524 square yards .On which they intended to raise a building. The respondents in accordance' with the provisions of the Ordinance submitted the plan for construction of 1 x 2 storeyed residential commercial building on the plot.
10. The applicant refused to accept their plan, hence they approached the Director---General K.D.A.
11. Who ordered the applicant to accept the plan and to process the same vide order dated 21-1-1987.
12. The learned District Judge has rightly come to the conclusion that the duly filled-in form and plan annexed to the plaint were annexed to the letter dated 21--1-1987. He has taken into consideration the notice under Regulation 13 served by the respondents. He also taken into consideration that the applicant did not inform the respondents that the plan submitted by them was rejected as it violated the building rules and regulations. He has come to the conclusion that the respondents have established prima facie case and the balance of convenience is also m their favour.
13. Therefore, under these circumstances it is rather hard to say that the Additional District Judge has gone at a tangent or has taken into consideration some matters which were not on the record.
14. Even it cannot be said hat he has misinterpreted the facts which were available on the record.
15. Therefore the argument of Mr. Mubarak that the learned Judge has taken into consideration some facts which were not borne out of the record and he has relied upon something which was not borne out of the record, does not appeal to me in the least. Thus the Additional District Judge was justified in coming to the conclusion that the respondents have a right of freedom of use and enjoyment of their property within four corners of law and they cannot be restrained from exercising their said valuable right on technical ground. Therefore on facts also, the present revision application fails.
16. Regulation 13 of Karachi building & Town Planning Regulations (Part-1) reads as under:- "13. After the receipt of an application for permission to carry out building works, the concerned Authority shall, within sixty days;
(1) Pass orders granting or refusing permission to carry out such building works, and in the case of refusal specifying the provisions of the regulations violated or;
(2) Require further details in the plans, documents, specifications and any other particulars to be submitted to it;
(3) If no order is passed on an application within sixty days of its receipt, it shall be deemed to have been sanctioned to the extent to which it does not contravene the provisions of these regulations, or the Master Plan or Site Development Scheme, if any, and after giving due notice on prescribed form to the concerned Authority may proceed to carry out the said building works at any time within one year from the date of delivery 'of such notice".
17. The respondents did not hear anything from the applicant.
18. The contention of the learned counsel for the respondents is that the plan dated 21-1-1987 is deemed to be approved according to Regulation 13.
19. "We understand the law to be that such period should be calculated from the date of a complete and proper notice, with a general description of the building to be erected with its plans and specifications, being submitted in such a form as to be capable of consideration by the municipal commissioners. The period should not be calculated from March, when the first notice was given but from the 6th of June, when it was submitted in a complete form and, calculated from this date, such as is contemplated by the law, that is. a period of six weeks, within which the municipal commissioners could or should have passed orders thereupon and the law declares that, on neglect or omission within such time to pass orders on the application, the person desirous of building shall be entitled to commence work on the ground that the Municipality, by their silence, shall be deemed to have given their sanction"
20. "In the present case the Municipal Committee allowed more than one month to elapse before communicating with Kifayatullah, and, when it did communicate with him, it did not issue a notice, as it might have done under subsection (2) of the section, requiring the building to be altered or demolished, but it required him to stop the work and submit a fresh application. If Kifayatullah gave a notice which did not comply with the law, it should have been regarded as no notice at all and the Municipal Committee could have required him to alter or demolish the building; but as it must be taken that the notice given was in compliance with the law, and as the Municipal Committee did not issue any directions within one month of the receipt of the notice, the Municipal Committee had no authority to take any action under subsection (2) of section 85"
21. "Another contention was raised on behalf of the first appellant, namely, that the Municipal Council did not sanction the construction of the building within six weeks on receipt of the plan and, therefore he was entitled to build it in any way he liked. Under S. 180, Cl. (5) of the District Municipalities Act if within the period of six weeks the Municipal Council does not grant the licence, the applicant can proceed to construct, re-construct or extend a wall or building, as the case may be, but such construction must be in accordance with the plan which accompanied his application. The period of six weeks is fixed by the Legislature in order to make the Municipal Council prompt in granting or refusing sanction and to prevent such applications being left pending for a long time. The applicant is not entitled to depart from the plan by reason of the laches of the Municipal Council in granting or refusing sanction. If the Municipal Council does not refuse sanction within six weeks the applicant may proceed to construct the building and that only in accordance with the plan submitted for sanction".
22. "As we read subsection (3) of section 77, we are of the view that in a case where a person applies for sanction of a plan by the Municipality, the Municipality must with all promptness deal with the application and pass necessary orders thereon, and the time taken by the Municipality for doing so has been fixed to be not more than sixty days. Within these sixty days according to us, the Municipality shall either accord sanction or refuse it or modify the plan or accord sanction by modifying the plan as it feels justified in accordance with the laws or by-laws of the Municipal Ordinance and if the Municipality does not within sixty days of the registration of the application intimate the applicant either way, it will be presumed that the Municipality has given sanction to the plan of a construction applied for".
23. PLD 1987 Lahore 171), the petitioner submitted a building plan on 1-8-1973 to the respondent for sanction but did not get any intimation about its disposal and after some waiting, he carried out the proposed construction on the assumption that since he had not been conveyed its rejection, therefore, the building plan submitted by him was deemed in law to have been sanctioned.
24. However, on 9-10-1973 the respondent issued a notice requiring him to demolish the house in question. The petitioner filed a suit for injunction against the respondent. The respondent resisted the suit. The suit was dismissed by the trial Judge. The petitioner's appeal was also dismissed. The petitioner being aggrieved filed the revision petitioner before Lahore High Court. A Single Judge of the Lahore High Court accepted the petition. It was held:- "It is not the case of the defendant that the construction made on the site in not in accordance with the plan submitted by the petitioner. Even the notice (Exh. P 3) has neither been issued to the petitioner nor does it mention anything regarding his plan, muchless about the rejection thereof and does not even specify as to which particular house does it relate. What to speak of the communication of the refusal to sanction the plan of the petitioner, he has never been notified its rejection and muchless has the defendant suggested any modification or alteration therein".
25. The revision was accepted and the decrees of the Courts below were set aside.
26. Mr. Mubarak contended that the plot is a residential plot and the respondents cannot raise a commercial building. This contention is devoid of force.
27. The breach is between the lessor and the lessee. Similar questions of restrictive covenants were considered in the following cases:-
(i) Moosa Bhunji v. Hashwani Sales and Services Ltd. & another (PLD 1982 Karachi 840).
(ii) Muhammad Munir v. Ahmad Ally Memon & 2 others (PLD 1982 Marachi 425).
(iii) R. G. Sehwani Co-operative Housing Society Ltd. v. Haji Ahmed & 3 others (PLD 1983 Karachi 11)
28. The learned counsel for the respondents stated at the bar that the respondents had already deposited conversion charges in this behalf. The respondents 1 to 5 have also filed an undertaking which reads as follows:- "Under Administrative Instruction No. 57 PSDJ/KDA/82/26, dated 21st July, 1982 'Shahrah-e-Faisal and Main Clifton Road have already been notified to be commercialized. The land in question belongs to K.M.C. And Karachi Municipal Corporation under letter of Director Land K.M.C. No. DL/CLS/FT/88/319, dated 2-11-1988 Plot No. 13 FT-4, Frere Town facing main Clifton Road, Karachi as per plan has allowed it to be used as commercial. But it is undertaken that user of plot will be subject to above."
29. But the Courts below have found as a fact that the plaintiffs-respondents have established a prima facie case inasmuch as cogent and positive material has been brought before the Court to lead to a reasonable conclusion that the respondents applied to the applicant for approval of the plan for construction of one plus two storeyed residential-cum-commercial building. Both the Courts below having come to the conclusion that the respondents have established a prima facie case and balance of convenience is also in their favour, they thought it is a fit case where a temporary injunction would be justifiable to issue. On this count the trial Court granted the application for temporary injunction. Appellate Court rejected the appeal.
30. Mr. Mubarak strenuously urged before me that both Courts are guilty of committing jurisdictional error inasmuch as they have not considered material which has been put before them for consideration. Before proceeding in this respect it would be necessary for us to consider as to what has been brought before the Court and what both the Court below have considered. To repeat once again, it was positive contention of the plaintiffs that they had submitted a letter dated 21-1- 1987 alongwith duly-filled-in form and plan to the Director-General who ordered to process and report. Obviously there was no material before the Courts which could justify the inference that plan was not annexed to letter but was submitted on 19-1-1987. Both the Courts below came to the conclusion and in my opinion rightly, when they considered the circumstances particularly flowing from averments made in the plaint, application under Order 39 and affidavit in support thereof. It is pertinent to note that at the time of hearing before the appellate Court when the case is made out for the first time that the plan was not annexed to the letter dated 21-1-1987 but was actually submitted on 19-1-1987 only for residential building. In fact the controversy started when the appeal came up for hearing. The plaintiffs/respondents have come before the Court that the plan was annexed to the letter dated 21-1-1987. The applicant neither approved the plan nor rejected the same within sixty days as provided by Regulation 13. A notice under clause (3) of Regulation 13 was duly served. The plan is deemed to be approved. Both the Courts below rightly held that the respondents have complied with the provisions of Regulation 13. Both the Courts held that there was clear material available on record which would justifiably lead to the conclusion that the plan was approved. This is obviously in Finding of fact.
31. It appears that the balance of convenience ties not in favour of the applicant but in favour of the respondents. Further the costs of materials aye escalating This aspect has not been lost sight of by the Courts below.
32. The question here is whether the High Court has jurisdiction to entertain a revision under Section 115, CPC, against an interlocutory order of the Court: below. Section 115, CPC expressly limits it to three cases mentioned therein. All three relate to jurisdiction. It will, therefore, be necessary to examine the meaning of jurisdiction. It is defined in Halsbury's Laws of England (Hailshw, Edition)
33. Volume 8 page 531 to mean: "By jurisdiction is meant the authority which a Court has to decide matters that are litigated before it or to take cognizance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter or commission under which the Court is constituted."
34. The distinction between an error of fact or law committed in the exercise of jurisdiction and an inherent lack of jurisdiction is brought out by the Privy Council in (76)2 Cal. 131: 3 IA. 221 (P.C.) in the matter of Hajee Abdoollah at page 141: "In the first case "(that is, when a Court of appeal is correcting an error of law made by a lower Court)" the Appellate Court reverses the order, because the Judge has erred in the mode in which he has exercised a judicial discretion; in the latter case "(that is, when the order is made without jurisdiction)", it quashes the order, because there was no discretion at all to be exercised."
35. This analysis reveals, to my mind, that cases like the present can in no event fall within clauses (1) and (b) of Section 115. 1 turn now to clause (c): "To have acted in the exercise of its jurisdiction illegally or with material irregularity."
36. I am clear that the words "illegally' and "material irregularity" do not cover either errors of fact or law. They do not refer to the decision arrived at but to the manner in which it is reached. The errors contemplated relate to the material defects of procedure. And not errors of either law or fact after the formalities which the law prescribes have been duly complied with both in letter and in spirit. It must be something independent of the decision itself; an irregularity or illegality in the manner of arriving at it, not in the conclusion reached.
37. "It will be observed that section applies to jurisdiction alone, the irregular exercise, or non-exercise of it, or the illegal assumption of it. The section is not directed against conclusions of law or fact in which the question of jurisdiction is not involved."
38. Those words appear to me to be emphatic and to be free from any sort of ambiguity. But even if there is difficulty, it is resolved by the illustrations given by their Lordships. One is: "------------.If the Civil Court should absolutely and whimsically decline to exercise its jurisdiction and refuse to make any orders------"
39. Another at page 74: "An order made in such a matter in disregard of the requirements of natural justice, such, for instance, as proceeding without giving the member sought to be removed notice, or affording him an opportunity of defending himself."
40. This was the view of the Privy Council as early as 7884 under the Old Code of Civil Procedure. Their Lordships said, construing Section 622 corresponding to Section 115, "The question then is, did the Judges of the lower Courts in this case, in the exercise of their jurisdiction act illegally or with material irregularity.
41. It appears that they had perfect jurisdiction to decide the question which was before them, and they did decide it whether they decided it rightly or wrongly, they had jurisdiction to decide the case and even if they decided wrongly, they did not exercise their jurisdiction illegally or with material irregularity."
42. The questions which lower Courts had to decide in that case were of res judicata and what is now Order 2, Rule 2 under the present Code of Civil Procedure. The lower Courts there held that the suit was not barred for either reason and proceeded with the trial. The Court of Judicial Commissioner entertained a revision and set aside the orders of the lower Courts on the ground that they were wrong. The Privy Council held: "The Judicial Commissioner had no jurisdiction in the case."
43. And this was not because the lower Courts were right but because whether they were right or wrong they had jurisdiction and accordingly the Judicial Commissioner had no jurisdiction to sit in judgment over them in revision.
44. This decision was followed by the Privy Council five years later. The headnote in (89) 16 Cal. 747; 16 IA. 104 (Muhammad Yusuf Khan v. Abdul Rahman Khan) runs "A decision by judgment of a competent Court whether right or wrong which by law is final and without appeal, where the Court has not acted in the exercise of its jurisdiction illegally, or with material irregularity; cannot be set aside under section 622, C.P.C."
45. This was reiterated for the third time in (15) 37 All. 485:. AIR 1915 P.C. 99 (Rajwnat Prasad v. Ram Ratan) at pages 494, 495: "Their Lordships think it is very little and very familiar that a challenge of the method of the exercise of the jurisdiction of a Court can never in law justify a denial of the existence of such jurisdiction.
46. The former has reference to the merits of the case."
47. Now it is pertinent to observe that with these three decisions before it the Legislature did not see fit to alter Section 622 in material respect when it enacted Section 115. I take it that that was done with deliberate intent and I think it is elementary that Courts in Pakistan are expected faithfully to carry out the intention of the Legislature and to follow the decisions of the Privy Council and Supreme Court.
48. "Section 115 applies only to causes in which no appeal lies, and where the Legislature has provided no right of appeal, the manifest intention is that the order of the trial Court, right or wrong, shall be final. The section empowers the High Court to satisfy itself upon three matters : (a) That the order of the subordinate Court is within its jurisdiction; (b) That the case is one in which the Court ought to exercise jurisdiction; and (c) that in exercising jurisdiction the Court has not acted illegally, that is, it breach of some provision of law, or with material irregularity, that is, by committing some error of procedure in the course of the trial which is material in that it may have affected the ultimate decision. If the High Court is satisfied upon those three matters, it has no power to interfere because it differs, however profoundly, from the conclusions of the subordinate Court upon questions of fact or law."
49. PLD 1970 S.C. 288) the Supreme Court approved the decision of the Privy Council.
50. PLD 1970 S.C. 139), the Supreme Court held: "---------It may also be pointed out, with all respect to the learned Single Judge, that he was exercising a limited jurisdiction in revision under Section 115 of the Civil Procedure Code which is meant primarily for correcting errors made by the subordinate Courts in the exercise of their jurisdiction and not those which are made in their discretion, unless the discretion is found to have been exercised fancifully or arbitrarily PLD 1964 Karachi 149), a Full Bench of the erstwhile High Court of West Pakistan, Karachi Bench held: "The central idea, the dominant aspect and the controlling consideration underlying section 115, is that the High Court must always be in a position to ensure that the Courts subordinate to it do not exceed their jurisdiction, do not decline their jurisdiction, and while acting in the exercise of their jurisdiction do not act in a manner contrary to law or in a manner not warranted by law and capable of prejudicing the case of one party or the other."
51. The said Bench further held: "Section 115 of the Code of Civil Procedure does not concern itself directly with justice or injustice. It is not a power to substitute what appears to the revisional Court to be correct view of the merits of case ---whether legal of factual--for review of the merits of a case that appears to it to be erroneous. Section 115 is not concerned with these matters. It is, on the contrary, concerned only with the exercise of jurisdiction. If no jurisdiction that is not vested is exercised ; if no jurisdiction that is vested is declined and if in the exercise of a jurisdiction that is vested, no one has acted illegally or with material irregularity, the question of using powers under section 115 does not arise, however gross an error of law or fact might have been committed in the determination of the merits of the claim and however grave the injustice might be. The converse is not always true. The word used in the opening part of section 115 is "may". The Court is not bound to act under that section, though it is hard to imagine cases falling under clause (a) and the first part of clause (c) in which the Court, on being satisfied that a jurisdiction not vested is being exercised, or that illegal action is being taken in the exercise of jurisdiction, will still refrain from exercising its powers under section 115. With reference to (b) and the second part of (c), however, there is no difficulty in thinking of examples where a Court, in spite of being satisfied regarding the failure to exercise a jurisdiction which is vested, or the grossness of an irregularity of the procedure adopted in the exercise of jurisdiction, would still refrain from exercising its powers under section 115. In such cases, if the Court is of the opinion that no injustice has been done or is likely to be done, it may refuse to act under section 115.
52. The ideas of justice is thus relevant to the provision of section 115 only as an additional factor affecting the discretion of the Court. Nor does the concluding portion of section 115 "the High Court may make such order in the case as it thinks fit", enlarge the discretion of the Court."
53. 1981 SCMR 196) the Hon'ble Supreme Court held as under: - "------..The revisional jurisdiction under section 115, C.P.C. Is meant primarily. For correcting errors made by the subordinate Courts in exercise of jurisdiction and not those which are made in their discretion unless the discretion is found to have been exercised fancifully or arbitrarily".
54. "A perusal of the above provisions would show that the scope of section 115 of Civil Procedure Code is limited to cases where the subordinate Court has exceeded its jurisdiction or has declined to exercise the jurisdiction or has acted in exercise of its jurisdiction in a manner contrary to law or in a manner not warranted by law. No doubt if a Court has jurisdiction to decide a matter on facts or law it has the jurisdiction to decide a matter on facts or law it has the jurisdiction to decide one way or the other and the fact that a superior Court is of the opinion that the decision arrived at by the Court below is incorrect, does not mean that decision is without jurisdiction. But when the point on which erroneous decision has been given is based on points, which affect the Court's capacity to entertain the case or to proceed further with it, the erroneous decision if acted upon would result either in the illegal assumption of jurisdiction or illegal or erroneous exercise of it. A revision petition based on casuistic arguments cannot be entertained as section 115 is not designed to meet unsubstantial points of form".
55. 1984 CLC 672) a Single Bench of Lahore High Court (BWP) held:-- "---.The view taken if erroneous cannot be subject to a challenge within the scope of section 115 CPC as nothing is involved as to the exercise of jurisdiction in any way as enumerated under section 115 CPC".
56. This Court cannot, therefore, in exercise of its jurisdiction under Section 115, Code of Civil Procedure, correct errors of fact however gross they may be unless it has relation to the jurisdiction of the Court whose order/judgment is impugned. It is not the case of the applicant that the trial Court had no jurisdiction to pass the order which it had passed. It is also not the case of the present applicant that the learned Additional District Judge had no jurisdiction to entertain and decide the appeal. No question of jurisdiction or defect of procedure is thus involved in the case. It is not shown that the Courts below have ignored any relevant provision of law or even any relevant fact.
57. The grant of interim injunction is a discretionary relief. True, it is that the discretion must be exercised reasonably and not arbitrarily or capriciously. Hence, if it is not made out that the Courts below have acted arbitrarily or with caprice in granting interim injunction, their discretion shall not be lightly interfered with under Section 115, Code of Civil Procedure. It was pointed out in Wazir Sunder Singh v. Musammat Farida Khanum (AIR 1920 P.C. 132) that the mere possibility of the revisional Court coming to a different conclusion on the same facts and evidence will not justify interference in revision. In the case in hand the applicant has failed to make out that the Courts below have acted illegally or with material irregularity in the exercise of jurisdiction. Having reached the conclusion that the respondents have made out a prima facie case and even on the ground of the balance of convenience and irreparable injury, the respondents would be entitled to the interim relief sought for by them, the trial Court exercised the jurisdiction in their favour. On appeal the learned Additional District Judge also declined to interfere with the discretion. In my view, the discretion had not been exercised arbitrarily, capriciously or illegally. I therefore see no reason to interfere with the impugned judgment/order.
58. The learned counsel for the applicant contended that the notice under Order 43 Rule 3 CPC was proper and duly served.
59. On the other hand Mr. Muhammad Sharif submitted that the notice was not in accordance with the provisions of Order 43 Rule 3.
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 of dismissal of the appeal in limine."
60. It consists of two parts. The first part relates to issuing of the notice and the second part relates to receipt of notice.
61. PLD 1983 S.C. 693) the Hon'ble Supreme Court analysed Rules 3 and 4 of Order XLIII at page 700 in paras. 16, 17 and 18 which read as under:--
16. The purpose of this revision obviously is to avoid the delay that is occasioned in issuance of notices to and having service effected on the respondent in 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 permission 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 limini 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 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 to 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 acknowledgement 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 acknowledgement receipt should not be entertained".
62. The dictum laid down in the above case was followed by a Division Bench of this Court in the case of Messrs Haji Suleman Goawala & Sons Ltd. v. Usman and 13 others (1985 CLC (Karachi) 168).
63. It seems that the provisions of Rules were not complied with in this case. The issuance of the notice and its service on the respondents was obligatory as held by the Hon'ble Supreme Court. The applicant in this case has failed to discharge this obligation. The appeal was heard by the learned Additional District Judge on merits also. The learned counsel for the respondents had fairly conceded that the judgment of the appellate Court be set aside to this extent only. In view of this concession the appeal was competent and ought not to have been dismissed on this ground.
64. Before parting with the revision, I-direct the trial Court to dispose of the suit within four months from receipt of this judgment on merits in accordance with law after recording evidence of the parties and after hearing the arguments of the learned counsel for the parties. The revision application, therefore, fails and is accordingly dismissed. In the circumstances of the case, the parties shall.
65. Bear their own costs.
66. It may be mentioned that this judgment may be construed not to have decided the issues involved in the suit; which will finally be determined on full appraisement of evidence that may be adduced by the parties.
67. H.B.T./K-136/K