' This civil revision petition arises out of the judgment and decree passed by the learned Additional District Judge, Mansehra, on 16-3-1989, whereby the appeal of the petitioner/plaintiff was dismissed being incompetent, filed against the order of Senior Civil Judge dated 17-10-1987 vide which he rejected the application of the petitioner/plaintiff for the grant of temporary injunction in Civil Suit No, 399/1. The learned counsel for the respondent raised an objection before the appellate Court that the provision of Order XLIII, Rule 3, C.P.C.Has not been complied with by the petitioner/plaintiff, therefore, the appeal is incompetent in view of the judgment of the Supreme Court reported in PLD 1983 Supreme Court 693. The learned appellate Court after hearing both the parties dismissed the appeal vide the impugned order.
2. I have heard the learned counsel for the parties and have gone through the relevant law.
3. For a just decision of the case it is pertinent to reproduce Order XLIII, Rule, 3 C.P.0 which is as under:-- "ORDER XLIII--APPEALS FROM ORDERS
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 on dismissal of the appeal in limine."
Rule 3 of Order XLIII C.P.C. In clear words lays down that notice of such appeal is to be given 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. These conditions as provided in Rule 3 of Order XLIII C.P.C.
Are mandatory because the words used therein are "the appellant shall."
4. In the instant case the appeal was filed on 19-4-1988 which was decided by the learned Additional District Judge, Mansehra, on 16-3-1989. According to the learned counsel for the respondent the respondent appeared on Court notice and he did not appear in lieu of the notice of the appellant on 19-4-1988 otherwise the appeal would have been dismissed on 19-4-1988 or soon thereafter on the objection of the respondent. The learned counsel for the petitioner submitted that the learned appellate Court failed to notice that a notice was issued on 13-4-1988, the photostat copy of which is Annexure-H on the file. He further submitted that Annexure-I is the receipt of the Post Office which is in the name of the counsel for the respondent and similarly Annexure-J is the affidavit filed by the petitioner stating therein that notice was given to the respondent. The learned counsel for the appellant was asked to produce acknowledgment receipt thereof and he failed to point out that he had obtained any acknowledgment receipt from the respondent which is mandatory under Rule 3 of Order XLIII C.P.C. The learned counsel for the respondent cited PLD 1983 Supreme Court 693, wherein Order XLIII Rule 3 C.P.C.Has been interpreted in headnote 'C', which is as under:-- "Sub-rule (1) of rule 3 Order XLIII, C.P.C. 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 along with a copy of the order appealed against. In order to satisfy the appellate Court that this has been done, he should obtain an acknowledgment receipt to the effect that a copy of the grounds of appeal along with the other documents has, indeed, been received by the respondent or his Advocate. The purpose of Order Rule 3, C.P.C. 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, Order XLIII, C.P.C. 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. These provisions highlight 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 nugatory. Hence issuance of a notice to the respondent before presentation of an appeal preferred against' an order passed during the pendency 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, along with 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 him a copy of the memorandum and grounds of appeal along with a copy of the order appealed against and shall also attach with the said affidavit a copy of the acknowledgment 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 acknowledgment receipt should not be entertained". (Underlined is mine).
' The learned counsel for the respondent also relied on1987 CLC page 1177 headnote 'B' which lays down as under:- "Order XLIII, Rule 3---Non-compliance of mandatory provisions of Order XLIII, Rule 3 C.P.C.--Effect-- Appeal filed before appellate Court without compliance with mandatory provisions of Order XLIII, Rule 3, C.P.C., held would be liable to dismissal."
5. It is pertinent to mention here that reliance in this judgment is placed on the judgment of the Supreme Court reported as PLD 1983 Supreme Court 693.
6. After going through the judgment of the Supreme Court, quoted above, I have no option but to follow that ruling. No doubt, the copy of the notice has been attached with the file and copy of the affidavit is also there but there is no acknowledgment receipt obtained from the respondent that the notice was in fact served on the respondent and he appeared in Court in compliance with that notice. According to the learned counsel for the respondent the respondent appeared on the Court notice that is why the case lingered on for about a year. If the respondent had been served as required under Order XLIII Rule 3 C.P.C. He would have immediately raised the preliminary objection and the appeal would have been dismissed by the appellate Court earlier and the respondent would have been awarded with costs.
7. In view of law laid down by the Supreme Court mentioned above this revision petition is without force and is hereby dismissed with costs throughout.