1. ' This is a High Court Appeal also at times described as an Intra- Court Appeal. Such appeal may either be directed against a final order or judgment or even to challenge what may be termed as an interim or interlocutory order. In either of such cases, the judgment or order assailed in appeal has to be of a Single Judge of the High Court and the appeal variously described as the High Court or Intra-Court Appeal, is to lie to a Bench of two Judges of the same Court.
2. ' The question, in the form of an objection through C.M.A. 32/95, being dealt with here is irrelevant when the appeal is directed against a final judgment, decree or order and arises only when an appeal seeks to assail an interim or interlocutory order. The right to bring such an appeal is, inter alia, enshrined in Order XLIII, Rule 1, C.P.C. In relation to appeals of this character Rule 3 of Order XLIII, C.P.C., which was enacted through Ordinance X of 1980 as amended by Act XIV of 1994, prescribes a prior notice from the appellant to the respondent. The provision is not only applicable to High Court or Intra-Court Appeals against interim or interlocutory orders but also to civil miscellaneous appeals against similar order brought before District Judges. It would be appropriate here to reproduce the current version of Rule 3 of Order XLIII as it subsists in the Code of Civil Procedure.
3. Such is 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 either personally or through registered post acknowledgement due and the postal or other receipt shall be filled with the memorandum of appeal for the record 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. ' Now upon the facts of this appeal, such was filed on 7-12-1994, calling into question an interim order dated 15-11-1994 in Suit No,88 of 1994 whereby a learned Single Judge of this Court sitting on the original side confirmed the ad interim injunction granted earlier in such suit. Together with the memo. Of appeal, Mr. S.A. Samad Khan, the learned counsel for the appellants, filed a personal affidavit on 7-12-1994 itself maintaining therein that service of copies in accordance with Order XLIII, Rule 3, C.P.C. Had been effected on the learned counsel for the respondent. As it turns out, Mr. Samad Khan laboured under the impression that due service must have been effected at 8-00 a.m. That day, but such evidently did not come to transpire because the office of the respondent's learned counsel, Mr. Mansoorul Arfin, was found closed at the time, actual personal service materializing only at 4-00 p.m. The same day. The appeal was put up for Katcha Peshi on 21-12- 1994 when it was adjourned as Mr. Mansoorul Arfin was not present and the Bench seized of the matter observed that it "would like to hear him as well". On the next date when the case was taken up viz. 29-12-1994, Mr. Mansoorul Arfin filed power on behalf of the respondent and the matter was adjourned by consent. In course of time, for the respondent C.M.A. 32/95 was filed seeking that the appeal be dismissed "as notice under Rule 3 of Order XLIII, C.P.C. Has not been served in accordance with the provision thereof before filing of the appeal". Later the learned counsel for the appellants filed an application for constitution of a larger Bench as, according to the plea taken therein, there was divergence of opinion on the interpretation of Rule 3 of Order XLIII, C.P.C., warranting its resolution through a larger Bench. Such application came up before a Division Bench headed by A.H. Memon, ACJ but was dismissed with the observation, "we see no justification in constituting a larger Bench".
5. ' Today, upon hearing the learned counsel, as to the effect of Rule 3 of Order XLIII, C.P.C. On the maintainability of this appeal, we have recorded the following short order:- "At the outset we proposed to hear the learned counsel on the merits of the controversy taking up the question of compliance or otherwise of Rule 3 of Order XLIII, C.P.C. As an ancillary question but Mr. Mansoorul Arfin insisted that the objection being preliminary in nature is to be heard first and it is only thereafter that merits, if warranted, be addressed.
6. ' We have, therefore, heard the learned counsel on the impact of Rule 3 of Order XLIII, vis-a-vis the maintainability of this appeal.
7. Hearing them at length, which has consumed almost two hours, we are of the view that the objection is to be overruled for reasons which we would record in course of time.
8. ' Accordingly, the H.C.A. Would be laid for Katcha Peshi on an adjourned date but according to roster."
9. ' What follow below are our reasons for the aforequoted short order.
10. ' It is clear from the record that while no service could be effected of due notice in terms of Order XLIII, Rule 3, C.P.C: on the respondent before the filing of this appeal, such service was effected the same day at about 4-00 p.m. Mr. Mansoorul Arfin appearing for the respondent, however, has urged that the requisite service under the provision had to be effected before the presentation of the appeal and that such presentation was bad not having satisfied a mandatory requirement as held in Mrs. Dino Manekji Chinoy v. Muhammad Matin, PLD 1983 SC 693, Muhammad Latif Ghazi v.
11. Farid Akhtar Hadi (Civil Petition No,573-K of 1990) decided on 24-4-1991, and Saleem Muhammad v.
12. Khadija Bai and others (H.C.A. 2 of 1994), decided on 27-10-1994.
13. ' On his part, Mr. S.A. Samad Khan has relied upon Haji Suleman Gowawala & Sons Limited v. Usman, 1985 CLC 168, Muhammad Ramzan v. Karim Bukhsh, 1988 CLC 448, Muhammad Naeem v. Ghulam Nabi, PLD 1988 Quetta.9, Bashir Ahmad v. Province of Punjab, 1990 MLD 986, Ejaz Siddique v. Kaneez Begum, 1992 CLC 1658 and Trustees of the Port of Karachi v. Muhammad Saleem, 1994 SCMR 2213.
14. ' While the object and effect of Order XLIII, Rule 3, C.P.C. Has been examined in practically all the cited case-law and some more, the basic decision on the subject is that of the Supreme Court of Pakistan in the matter of Mrs. Dino Manekji Chinoy v. Muhammad Matin ibid., which in turn arose from a decision of this Court in Muhammad Matin v. Mrs. Dino Manekji Chinoy, PLD 1983 Karachi 387, not cited at the Bar. Some other decided cases on the subject which may, off-hand, be also referred are Siraj Din v. Province of Punjab, 1984 CLC 1287, Muhammad Siddique v. Boota, PLD 1985 Lahore 243, Managing Director,"Punjab Industrial Development Board v. Habib Sugar Mills Limited, 1986 CLC 2044, Ghulam Rasool v. Fatima, 1987 CLC 1177 and Nazir Ahmad Jagirani Blouch v.
15. Province of Sindh, 1987 CLC 1750.
16. It is now well-settled that a case is only authority for what it actually decides, that generality of expressions to be found therein are not to be taken as unqualified expositions of law and that the propositions deducible from each case are to be controlled by the particular facts emerging therefrom. Besides, precedents themselves, have been found to fall in distinct categories. It is upon these premises that the cited cases on the point are to be examined. Mr. S.A. Samad Khan in the context has correctly drawn our attention to the following observation of the Supreme Court regarding precedent law from the Trustees of the Port of Karachi v. Muhammad Saleem, 1994 SCMR 2213:-- "19. Precedent cases fall in two distinct categories. In the first category fall the decisions which decide a question of law or are based upon or enunciate a principle of law within the meaning of Articles 198 and 201 of the Constitution and are, therefore, binding, if the decision be by the Supreme Court, on all Courts in Pakistan, and if the decision be by a High Court, on all Courts subordinate to it. In the second category fall the cases which are not so binding but are merely illustrations of the application of the principles of law enunciated in the first category of precedent cases. So, in order that a decision on a question of law is binding within the meaning of Articles 198 and 201 of the Constitution it is not enough that a legal proposition follows logically from it; that question must have been actually decided."
17. ' Respectfully subscribing to the quoted dictum of the Supreme Court and treating the case of Dino Manekji Chinoy as central to the controversy, we now proceed to examine the connotations of the requirements spelt out in Order XLIII, Rule 3, C.P.C.
18. ' In Siraj Din v. Province of Punjab, 1984 CLC 1287 (Muhammad Ilyas J., as he then was), Muhammad Siddique v. Boota, PLD 1985 Lah. 243 (Muhammad Ilyas, J.), Managing Director, Punjab Industrial Development Board v. Habib Sugar Mills Limited, 1986 CLC 2044 (Muhammad Ryas, J.), Ghulam Rasool v. Fatima, 1987 CLC 1177 (Muhammad Asadullah J.), Nazir Ahmed Jagirani Balouch v.
19. Province of Sindh, 1987 CLC 1750 (Mamoon Kazi, J.) and M. Naeem v. Ghulam Nabi, PLD 1988 Quetta 9 (Munawar Ahmed Mirza, J., as he then was), it seems to have been held that the requirement of notice under Order XLIII, Rule 3, C.P.C. Is mandatory. On the other hand, in Muhammad Matin v. Mrs. Dino Manekji Chinoy, PLD 1983 Karachi 387, a Division Bench of this Court, presided over by Abdul Hai Qureshi, CJ., on a close analysis of the provision, came to the conclusion that it was not mandatory. In appeal before the Supreme Court, the report being Dino Manekji Chinoy v.
20. Muhammad Matin, PLD 1983 SC 693, the Supreme Court did not expressly disagree with the High.
21. Court view that the provision was directory and not mandatory observing only that the issuance of due notice to the respondent before presentation of the relevant appeal was obligatory and no appeal could be entertained without issuance of the requisite notice. It then proceeded to amplify the provision by adding requirement of an affidavit with the memo of appeal setting forth due issuance of such notice. The dictum in para. 18 of the judgment occurs in these words:-- "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 otter 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 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."
22. ' A degree of misapprehension in some of the case-law, which has followed, seems to have occurred because the foregoing observation was largely approached either without reference to or with a mere cursory dissertation of the actual application of the dictum on the facts of the case, which really was its ratio and which occurred thus in para. 19 of the report:- "19. In the instant case, we observe that the learned Division Bench had issued a pre-admission notice to Advocate of the respondents (the petitioners herein) and their Advocate Mr. Akhtar Mahmood was present on pre-admission notice. Thus, he could contest the admission of the appeal and seek its dismissal in limine. No grievance, furthermore, was made by him to the effect that any document to which reference was being made during the hearing of the appeal had not been supplied to him or that he was otherwise taken by surprise. Thus, in this case, all the objects for which rule 3 was inserted in Order XLIII of the C.P.C. Were satisfied in substance. Since the proper place of procedure is to help and not to thwart the obtaining of justice and procedural laws, as painted out by Mr. Sharifuddin Pirzada, should be utilised as 'stepping stones' rather then we might add, as stumbling blocks; the right of a party in this case to have this appeal heard, cannot be allowed to be defeated for failure to comply with the form where the substance has, in fact, been complied with. See Imtiaz Ahmad v. Ghulam All and others (PLD 1963 SC 382) and Manager, J & K State Property in Pakistan v. Khuda Yar (PLD 1975 SC 678)."
23. ' Substantially correct interpretation of the provision and application of the Supreme Court dicta, in our respectful view, occurs inter alia in Haji Suleman Gowawala & Sons v. Usman, 1985 CLC 168 (Naimuddin and Ibadat Yar Khan, JJ.), Muhammad Ramzan v. Karim Bukhsh, 1988 CLC 448 (Amjad Khan, J.), Bashir Ahmad v. Province of Punjab, 1990 MLD 986 (Abaidullah Khan and Khalid Paul Khwaja, JJ.) and Ejaz Siddique v. Kaneez Begum, 1992 CLC 1658 (Abdul Majid Tiwana, J.). The foregoing Karachi and Lahore Division Benches appear to have settled the law in so far as these Courts are concerned. As to the unreported Supreme Court and this Court cases of Muhammad Latif Ghazi v. Farid Akhter Hadi (Civil Petition No,573-K of 1990) and Saleem Muhammad v. Khadija Bai (High Court Appeal No,2 of 1994), heavily relied upon by Mr. Mansoorul Arfin, such appear essentially to be illustrations of the application of the principle of law enunciated in the case of Dino Manekji Chinoy and do not appear to lay down independent enunciations. This is more so because the Supreme Court unreported case of Muhammad Latif Ghazi was authored by Naimuddin, J., who sat on the Bench with Sajjad Ali Shah, J. (as he then was) and Naimuddin, J.
24. Cannot , without due dilation, be assumed to have said anything contrary to what was observed in the case of Haji Suleman Gowawala to which he was a party. The case of Dino Manekji Chinoy itself cannot be interpreted in isolation of the fact that the question whether the conditiorialities in Order XLIII, Rule 3, C.P.C. Were directory or mandatory in nature was examined in a background where no notice whatever, prior or otherwise, for filing the relevant High Court Appeal was served in the case but the respondent appeared upon issuance of pre-admission notice and in actual fact was accorded due hearing before the appeal could be decided. It was, therefore, held that the provision in essence and in substance stood satisfied.
25. Now one of the criteria to determine whether a statutory provision was absolute or merely directory is to find out whether the same was couched in affirmative or negative language, negative in the sense of the statute enacting that a certain thing shall be done in a certain manner and none other. While a universal rule cannot be laid down, it may, conveniently be stated that where the language employed is affirmative, the statute would be directory and where negative it would be mandatory. Another criterion to be noticed in determining the mandatory or directory nature of a statutory provision is to see as to what consequences are stipulated to follow upon non- compliance thereof. If the disobedience is to entail invalidity, the provision would be mandatory, if not it would be directory. Yet another test to be applied is to examine the object, which the statutory provision was designed to fulfil. If the provision was designed to benefit the entire populace, as distinguished merely from the parties to a particular cause, the provision would be mandatory: Muhammad Matin v. Dino Manekji Chinoy, PLD 1983 Karachi 387. Thus, because Rule 3 of Order XLIII, C.P.C. Neither employs negative language nor contemplates a consequence of invalidity upon non-compliance nor was it for the benefit of the entire populace, as distinct from the parties to a cause, the inescapable conclusion is that while the requirement of notice in Rule 3 of Order XLIII, C.P.C. May be obligatory or binding, something in the higher echelon of being directory, it cannot be termed to be mandatory, peremptory or absolute. The conclusion that it is so is strengthened by the fact that the positive step envisioned in the rule is procedural and the place of all procedure in law is designed to secure the ends of justice and not, as pointed out by the Supreme Court, to create "stumbling blocks". Thus approached the condition seems to be enacted to ensure expeditious disposal of interlocutory appeals and to thwart the proverbial delays of law.
26. Failure to satisfy the requirement, of the prescribed notice in Rule 3 of Order XLIII, C.P.C., in appropriate cases, may be visited by dismissal of the appeal whereas in like manner where the justice of the case so requires, the party in default may be relieved of the pains of dismissal by according adequate dispensation in the way of costs or otherwise because costs, we may add, have been held to be a penacea for all civil wrongs. This arises because the legislature, in its wisdom, has chosen not to spell out the consequences of default in each individual case, leaving a discretion on the Court but like all discretions, vesting in judicial and quasi-judicial bodies, such has to be judiciously exercised.
27. Here we may point out that the word "entertain" as used in the opinion of the Supreme Court, incorporated in the case of Dino Manekji Chinoy, cannot be termed as entertainment by the office of the Court but involves due process of application of a judicial mind to the matter. In other words, the Court office is obliged to receive an appeal and to raise necessary objections if not accompanied with due notice etc. But whether to entertain the appeal or to throw it out must still remain in the domain of Judge(s), who would in the normal course come to be seized of an individual case. A very useful discussion on the subject is to be found in the Division Bench judgment of the Lahore High Court reported as Bashir Ahmad v. Province of Punjab, 1990 MLD 986 (see paras. 15 and 16 of the report).
28. ' The conclusion that we have reached is fortified by the realities on the ground. Thus miscellaneous or interlocutory appeals, which are covered by Order XLIII, C.P.C., are often enough directed against judicial dispensations of very pressing or urgent characters such as interim orders of injunction, attachment, receivership and even arrest. It, therefore, arises that an appeal may be preferred the same day such an order is passed. If so, there will be little prospect of service of notice, as such. It is for this reason that the learned Judges in the Supreme Court in the case of Dino Manekji Chinoy have deliberately insisted upon and used the word "issuance" rather than service of notice, which manifestly is in line with the language used in the provision: See also the observations of Amjad Khan, J. In Muhammad Ramzan v. Karim Bukhsh ibid. The rule, therefore, involves a prior issuance and not necessarily actual service of notice. In urgent cases the appellate forum need not wait for service and may act on its mere issuance. In others, it may choose to have the respondent served before passing any operative order. Serious cases, where the appellate Court comes to the conclusion that the omission or avoidance is deliberate, calculated to extract an undue advantage by circumventing the requirement of law, may entail penalties, of dismissal. All these are discretionary matters and compliance of Rule 3 of Order XLIII, C.P.C., therefore, is more a matter of applying the spirit and substance than the mere letter of law, divested of justice. We need not be detained here by the use of the word "shall" in the rule. That word, sometimes connoting a mandate and on others a discretion, is to be given effect to in the context of each case. Here it enjoins an obligation or a duty but that can be relieved where justice of a cause so warrants. Coming to the instant appeal, on the basis of the discussion which has preceded, we are of the view that the necessary notice was evidently issued by, the learned counsel for the appellants and in the circumstances of the case, where the respondent in course of time Appeared in the proceedings, the conditionality's of Rule 3 of Order XLIII, C.P.C. Appear to have been substantially complied with.
29. No mala fides have been shown to exist. No prejudice is claimed- to have been caused. For such reasons, we have, through the short order quoted above, overruled the objection taken and dismissed the application brought for the purpose of non-suiting the appellants.