' ABAID ULLAH KHAN, J.--The precise question which comes up for determination before this Bench is whether an appeal against the interim order passed in a pending suit can be dismissed after its admission by the appellate Court for non-compliance with the provisions of Order XLIII, rule 3 of the Code of Civil Procedure. It may be advantageous to note in brief the facts of the case giving rise to the issue demanding resolution. The petitioners brought a suit assailing the validity of the order passed by respondent 2 sanctioning supply of canal water to the fish farm of respondent 5 and for issuance of permanent injunction restraining the respondents from making any change in the existing arrangements regulating supply of water to the lands of various shareholders. They moved application for securing suspension of the operation of the impugned order of respondent 2 pendente lite. Their application was rejected by the learned trial Civil Judge, Sargodha, on the 30th September, 1986. Before preferring appeal against the order of the learned Civil Judge to the learned District Court, Sargodha, they did not comply with the provisions of rule 3 of Order XLIII of the Code of Civil Procedure inasmuch as they did not give notice of appeal to the respondents or their Advocate by delivering a copy of the memorandum and grounds of appeal alongwith a copy of the order appealed against. Nevertheless, the appeal was admitted to regular hearing.
2. The learned Additional District Judge, Sargodha, seized with the hearing of the appeal was impressed by the respondents' objection to the maintainability of the appeal due to the petitioners' failure to comply with the provisions of rule 3 of Order XLIII of the Code and consequently dismissed it in the following words of his judgment of the 5th May, 1987.
' In view of this matter, this appeal is not maintainable as laid down by Hon'ble Supreme Court in PLD 1983 SC 693, and by Hon'ble High Court in its judgment PLD 1985 Lahore 243, wherein it was also held that despite that appeal being admitted for hearing, if notices under Order 43 rule 3 CPC are not delivered to the respondents prior to the institution of appeal, in that case too, the appeal is not maintainable, so this appeal fails on this ground and the same is hereby dismissed with costs."
3. Feeling aggrieved the petitioners invoked the revisional jurisdiction of this Court to impugn the legality of the orders of the learned trial and the appellate Courts below. The learned Single Judge, before whom the learned counsel for the parties addressed arguments in support of their respective cases, found divergence of opinion not only in the Benches of this Court but also in those of the High Court of Sindh touching the manner of dealing with appeal against an order made during the pendency of a suit where the appellant has not complied with the provisions of Order XLIII, rule 3 of the Code. Whereas in Siraj Din v. Province of Punjab 1984 CLC 1287 (Lah.); Muhammad Shafi v. Muhammad Amin 1984 CLC 1528 (Lah.); Muhammad Siddique v. Boota PLD 1985 (Lah.); 243; Ghulam Rasool v. Mst. Fatima 1987 CLC 1177 (Lah.) and Nazir Ahmad Jagirani Balouch v. Province of Sindh 1987 CLC 1750 (Sindh) it was held that an appeal even after admission could be dismissed for want of compliance with the provisions of Order XLIII, rule 3 contrary view that after admission in such a situation appeal could not be dismissed was adopted in Suleman Gowawala and Sons Ltd. v. Usman 1985 CLC 168 (Sindh) and Muhammad Ramzan v.
Haji Karim Bakhsh 1988 CLC 448 (Lah.). To resolve the difference of opinion the learned Judge had the matter referred to this Bench.
4. It seems that the observations of the Supreme Court of Pakistan while considering the provisions of Order XLIII, rule 3 of the Code in Mrs. Dino Manekji Chinoy v. Muhammad Matin PLD 1983 SC 693 were differently interpreted in the above cases by the High Courts. The following passage from the judgment of the Supreme Court explains the application and implication of the provisions of rule 3 of Order XLIII,-- "Coming now to the nature of the provisions of the newly-inserted rule 3 of Order XLIII, C P C we observe that sub-rule (1) of rule '3 requires that the party preferring an appeal against any order made during the pendency of the suit must give notice of such appeal to the respondent or his Advocate before presenting the appeal by delivering a copy of the memorandum and grounds of appeal alongwith a copy of the order appealed against. In order to satisfy the appellate Court that this has been done, he should obtain an acknowledgement receipt to the effect that a copy of the grounds of appeal alongwith the other documents has, indeed, been received by the respondent or his Advocate.
' 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.
' 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.
' 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 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 appeals 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 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 the acknowledgement receipt should not be entertained."
5. To appreciate its nature, significance and scope it may be useful to have rule 3 of Order XLIII of the Code in view,-- "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."
6. The learned counsel for the respondent employed the reasoning used in the judgments of the first five reported cases referred to above to advance argument in favour of incompetency and dismissal of appeal. In Siraj Din v. Province of Punjab 1984 CLC 1287 appeals against the orders of the learned Civil Judge rejecting the plaintiffs' applications for issuance of temporary injunction pendente lite were admitted to regular hearing but after having been heard on merits were dismissed by the learned Additional District Judge on the short ground that notice under rule 3 of Order XLIII had not been served upon the respondents or their counsel. In revisional jurisdiction invoked by the plaintiffs it was urged on their behalf that the provisions of rule 3 were directory and not mandatory in nature and, therefore, non-compliance therewith was not fatal to the appeals and further that even if the provisions were to be taken to be obligatory their non-observance could constitute a ground for dismissal of the appeals in limine but not after their admission for regulr hearing. This Court, in view of the observations of the Supreme Court of Pakistan in Mrs. Dino Manekji Chinoy v. Muhammad Matin PLD 1983 SC 693, held that issuance of notice under rule 3 before filing an appeal was mandatory and non-service of such notice could entail dismissal of the appeal. While dealing with the arguments of the learned counsel for the plaintiffs that even if the provisions of rule 3 were obligatory the appellate Court could dismiss the appeals in limine but not after their admission this Court formed the view that what an appellate Court could do at the motion hearing could also do at the time of regular hearing for to hold otherwise would amount to retricting The powers of the appellate Court without any legal justification. The Court concluded that the appeals were not competent and could be dismissed not only at the limine stage but also after their admission and that in that view of the matter admission of the appeals was of no avail to the petitioners.
7. The above view finds reiteration in Muhammad Shafi v. Muhammad Amin 1984 CLC 1528 where an appeal against an order passed by the learned Civil Judge of Kasur during the pendency of suit after its admission was dismissed by the learned Additional District Judge, Kasur, simply because the appellant had failed to comply with the provisions of rule 3 of Order XLIII. The matter was brought in revision before this Court and it was urged on behalf of the petitioner that since no penalty had been provided in rule 3, the learned Additional District Judge could not dismiss the appeal for the omission of the petitioner to act in terms of rule 3 and it was contended that no prejudice had been caused to the respondent due to the filing of the appeal in disregard of the provisions of rule 3 inasmuch as the respondent had entered appearance through his counsel before the learned appellate Court prior to the admission of the appeal to regular hearing.
However, this Court was not favourably impressed by the argument of the learned counsel and equated the view of the Supreme Court touching non entertainability of the appeal with its dismissal in the following words,- "There is no force in the argument of the learned counsel for the petitioner that an appellant cannot be penalized for not complying with the provisions of rule 3 of Order XLIII of the Code of Civil Procedure. It has been ruled in the cases of Mrs. Dino Manekji Chinoy and 8 others, cited by learned counsel for the petitioner himself, that the said provisions are mandatory and if an appeal is preferred without satisfying the requirements of the said provisions the appeal is not entertainable.
This clearly means that the appeal can be dismissed on the short ground that it has been filed without fulfilling the condition precedent to the entertainability thereof."
8. The case of Muhammad Siddique v. Boota PLD 1985 Lah. 243 was decided on the concession of the learned counsel for the appellants that in view of the rule laid down in the case of Mrs. Dino Manekji Chinoy v. Muhammad Matin PLD 1983 SC 693, Siraj Din v. Province of Punjab 1984 CLC 1287 and Muhammad Shafi v. Muhammad Amin 1984 CLC 1528, 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 regular hearing. The Court considered the appeal to be incompetent and dismissed it. The relevant portion of the judgment is reproduced below:-- "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 acknowledgement of the receipt thereof. In view of the cases of Mrs. Dino Manekji Chinoy and others, Siraj Din and others and Muhammad 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."
9. In the same vein was decided the case of Ghulam Rasool v. Mst. Fatima 1987 CLC 1177. The learned Additional District Judge, Vehari had dismissed appeal (after its admission) against the order of the learned Civil Judge, Mailsi, rejecting the petitioners' application for grant of temporary injunction pendente lite on the sole ground that the same had been filed without complying with the requirements contained in iule 3 of Order XLIII. From the perusal of the judgment of the Supreme Court in Mrs. Dino Manekji Chinoy v. Muhammad Matin this Court took it that an appeal preferred without compliance with the provisions of rule 3 was not competent and was not entertainable.
Considering the provisions of the rule to be mandatory the Court remarked that the petitioners had to suffer as a result of non-compliance thereof. It endorsed the dismissal of the appeal recorded by the learned Additional District Judge.
10. In Nazir Ahmad Jagirani Balouch v. Government of Sindh 1987 CLC 1750 the learned trial Court of the Senior Civil Judge, Sanghar, passed in favour of the plaintiff-petitioner ad interim injunction order which on appeal was suspended by the learned District Judge, Sanghar. The matter was taken by the plaintiff in revision before the High Court of Sindh where it was noticed that the respondent had filed appeal with the learned District Judge and secured his judgment against the interlocutory order of the learned trial Court without complying with the provisions of rule 3 of Order XLIII. The High Court drew conclusion from the judgment of the Supreme Court in Mrs.Dino Manekji Chinoy's case that compliance with the provisions of rule 3 of Order XLIII was mandatory and a condition precedent for exercise of jurisdiction by the appellate Court and since the appellate Court had proceeded and decided the appeal without such provisions having been complied with by the respondents in the case the judgment of the appellate Court suffered from an illegality which was not curable and as such it could not be allowed to stand. The revision petition was accepted and the judgment of the learned appellate Court was set aside.
11. It appears that while dealing with and deciding the above cases this Court and the High Court of Sindh interpreted the observations of the Supreme Court in Mrs. Dino Manekji Chinoy's case that an appeal without meeting with the requirements of rule 3 could and should not be entertained to mean that such an appeal was not competent and was liable to dismissal even after it had been admitted.
12. The learned counsel for the petitioners put forth the view expressed in Suleman Gowawala and Sons Limited v. Usman 1985 CLC 168 and Muhammad Ramzan v. Karim Bakhsh 1988 CLC 448 to press for the hearing and decision of the appeal on merits maintaining that the exercise of serving notice upon the respondents or their Advocate of the intended appeal was relatable to limine stage and bore no connection with the hearing of the appeal after its admission. While dispelling the argument of the learned counsel for the respondents that the appeal wherein the preliminary requirement of informing the respondent of the intended action had been bypassed and which had been admitted to regular hearing should be dismissed, the High Court of Sindh in Suleman Gowawala and Sons Limited v. Usman 1985 CLC 168 observed that the compliance of the rule could be insisted upon at the time of filing/entertainment of the appeal and that stage having passed the transaction was past and closed.
13. The circumstances in which the question whether appeal after its admission should be dismissed for assumed non-compliance with the provisions of rule 3 of Order XLIII came up before this Court in Muhammad Ramzan v. Karim Bakhsh 1988 CLC 448 may be shortly stated. The revision petitioners had lodged two appeals with the District Court, Bahawalpur, on the 22nd December, 1986, against the orders of rejection of their applications in two suits for grant of temporary injunction. The memoranda of appeal made mention of giving of notices to the counsel for the respondents through post on the 21st December, 1986, and post office receipts were appended. When the appeals came up for fmal hearing before the learned Additional District Judge, Bahawalpur, of course after having crossed the limine stage and after having been admitted quite some time back, the respondents raised objection to their maintainability on the ground that the requirements of rule 3 had not been met inasmuch as the appellants had not served any notice by delivery of copies of impugned orders and grounds of appeal nor they had furnished affidavits to that effect nor produced any acknowledgement receipts in token of service of notices. The appellants placed reliance upon the postal receipts to urge that due compliance with law had been made. However, the learned Additional District Judge, despite the presence of the postal receipts on the records, was persuaded to uphold the respondents' objection. He observed that the appeals had been filed on the 22nd December, 1986, and postal receipts had been issued on the 21st December, 1986, which meant that the appellants had not obtained acknowledgement receipts from the respondents before presentation of their appeals and consequently dismissed both the appeals holding them to be incompetent in view of the rule laid down in Mrs. Dino Manekji Chinoy v. Muhammad Matin PLD 1983 SC 693 and Muhammad Siddique v. Boota PLD 1985 Lah.
243.
14. This Court was of the view that the question of giving notice before filing of appeals was relevant only upto the stage of preliminary hearing and at the time of final hearing the objection had lost efficacy because preliminary stage was over since long before and, therefore, the appeals could not be thrown out without hearing at subsequent stage. The Court considered any lapse on the part of the Court to admit the appeals despite non-fulfilment of precondition of giving notice to the respondents to be condonable by the maxim actus curiae neminem gravabit (an act of the Court shall prejudice no man) because the appellant was not to be punished for any action of the Court in admitting the appeal.
15. It seems that while deciding the first five cases what the Courts understood by the expressions 'no appeal can be entertained' and 'appeal should not be entertained' occurring in the Supreme Court judgment in Mrs.Dino Manekji Chinoy v. Muhammad Matin was that the appeal could not be given any consideration and in a way it was incompetent and not maintainable and as such should be dismissed. On the other hand the contrary view expressed in Suleman Gowawala and Sons Limited v. Usman 1985 CLC 168 and Muhammad Ramzan v. Karim Bakhsh 1988 CLC 448 indicating that these expressions were received in the sense of not considering the appeal for deciding the question of its admission to regular hearing. It appears that the resolution of the controvery depends upon the true interpretation of the word 'entertain'. Its dictionary meaning, given in the Oxford English Dictionary, in the context of the prevailing situation, is 'to admit to consideration'. The Supreme Court of India had the occasion of gauging in Lakshmiratan Engineering Works Limited v. Assistant Commissioner (Judicial) I, Sales Tax, Kanpur Range, Kanpur AIR 1968 SC 488, the import of the word 'entertain' used in analogous sense in the proviso to section 9 of the Uttar Pradesh Sales Tax Act, 1948, which ordained that no appeal against an assessm ent should be entertained unless it was accompanied by satisfactory proof of the payment of the amount of tax admitted by the appellant to be due or of such instalments thereof as might have become payable. The appeal of the assessee was rejected by the Assistant Commissioner of Sales Tax because in his opinion provisions of section 9 (as also of rule 66(2)) had not been complied-with since no proof had been given alongwith memorandum of appeal that the tax had been paid. The question for determination before the Supreme Court was as to what was the meaning of the word 'entertained' used in the proviso to section 9. The Court examined different facets of its meaning, whether it meant that no appeal could be received or filed or it meant that no appeal could be admitted or heard and disposed of unless satisfactory proof was available. The Court mainly banked upon the dictionary meaning of the word `entertain' referred to above for formulating its decision. After examining a few High Court cases wherein the word 'entertain' had come up for interpretation it concluded that the direction to the Court in the proviso to section 9 was that the Court should not proceed to admit to consideration an appeal which was not accompanied by satisfactory proof of the payment of the admitted tax and that would be when the case was taken up by the Court for the first time. It explained tkat when the proviso spoke of the entertainment of the appeal it meant that the appeal such as was filed would not be admitted to consideration unless there was satisfactory proof available of the making of deposit of the admitted tax.
16. It would be legitimate to accept the dictionary meaning of the word `entertain' used by the Supreme Court of Pakistan in its judgment. Therefore, the expression 'that no appeal can or should be entertained' would signify that the appeal would not be given any judicial consideration by the Court. It need hardly be mentioned that the very beginning of such consideration starts with the preliminary hearing of the appeal at limine stage. The legal consequences of nonobservance of the condition precedent to the filing of appeal, namely, giving of notice to the respondent or his Advocate, as stated by the Supreme Court in Mrs. Dino Manekji Chinoy's case, are that the appeal would not be entertained, thatis to say, it would not be given judicial consideration by the Court.
The officers of the Court responsible for receiving and scrutinising the appeal would get precondition of giving of notice of the appeal to the respondent or his Advocate fulfilled before the appeal is entertained and laid before the Court for preliminary hearing. If per chance the appeal is placed before the Court in the absence of previous notice to the respondent or his Advocate the Court would decline to hold preliminary hearing till after notice has been served upon the respondent or his Advocate.
17. Service of previous notice, as observed by the Supreme Court, is meant to avoid delay that is occasioned in issuing notice to and having it served on the respondent by the Court and to afford an opportunity to the respondent to contest the admission of the appeal and seek its dismissal in limine. Of course the respondent has no unqualified right to enter appearance at limine stage to contest the appeal and seek its dismissal; he can do so, as it transpires from sub-rule (2) of rule 3 of Order XLIII, only with the permission of the Court, exercise of right being dependent upon the grant of perinission by the Court Rule 3 is evidently intended to cater for the hearing of appeal at limine stage; its, application cannot be stretched to post admission stage of the appeal. As discussed in Muhammad Ramzan v. Karim Bakhsh 1988 CLC 448 wrong entertainment of appeal by the Court or by its officers and admission thereof would not adversely recoil upon the appellant for he is not to be penalised for any act or omission of the Court. The maxim actus curiae neminem gravabit (an act of the Court shall prejudice no man) would be squarely applicable to and cover his case. The utility of giving previous notice of filing of appeal is meant to be restricted to the stage of preliminary hearing of the appeal and is not to have any further effect once the appeal has crossed that stage and has been admitted for regular hearing; thereafter the appeal is to be heard and decided on merits. It follows that after its admission the appeal cannot be dismissed for non- compliance with the provisions of Order XLIII, rule 3 of the Code of Civil Procedure.
18. The revision petition will be laid before the Single Bench for decision according to law.