This appeal under section 104 read with Order 43 of the Civil Procedure Code, 1908 is directed against the order of the trial Court, dated 30-7-1995 by which it rejected the appellant's application under Order 39, Rules 1 and 2, C.P.C. For grant of interim injunction pending disposal of the appeal.
2. The plaintiff filed a suit in forma pauperis for declaration that the suit property was joint, that its alleged alienation in favour of respondent No. l from respondent No.4 was illegal and as a result of fraud and misrepresentation and that further alienation of 'the suit property by respondent No.1 in favour of respondent No.3 through Hiba was illegal and so was the relevant mutation entered in respect of the transaction. Alongwith the plaint an application under Order 39, Rules 1 and 2, C.P.C.
Was filed praying for a restraint order against the defendants from damaging the suit property in any manner, evicting the plaintiff from the same or disconnecting the phone or electricity connection or closing the passage and alienating the machinery etc. In any manner. Both were contested by alleging that the deed of general attorney, dated 29-6-1993 in favour of respondent, Mubarak A.I, was valid and so was the other transaction regarding the sale. It was pleaded that the plaintiff received substantial amount of Rs.4,10,000 against receipt and thus respondent No.1 came to own the suit property which he validly transferred through Hiba in favour of his brother's wife, respondent No.3. Respondents in support of their contentions attached photo copies of the relevant documents including receipt, Hiba Nama etc. As noted, after hearing the parties, the trial Court rejected the injunction application on the ground that the contention of the plaintiff required evidence while the respondents-defendants produced prima facie documentary proof in favour of their assertions. The appeal was originally filed in the District Court, Faisalabad but considering the valuation, the same was returned to the appellant vide order, dated 13-9-1995. It was, thereafter, that this appeal was lodged in this Court.
3. Learned counsel for the respondents has sought summary dismissal of the appeal on the ground that the appellant failed to serve requisite notice before the filing of appeal in this Court. It is contended that the notice in this case is required to be served under Order 43, Rule 3, C.P.C. And the consequence of non-service is that the appeal itself is not maintainable and is liable to dismissal in limine. Reliance in this regard is placed on Mrs. Dino Manekji Chinoy and 8 others v. Muhammad Matin (PLD 1983 Supreme Court 693). It is correct that when an appeal is directed against an interim order, the notice before presentation of appeal is required to be given under Rule 3 of Order 43, C.P.C. It is also correct that in some of the judgments this notice has been held to be a mandatory notice so that the failure to serve the same renders the appeal liable to dismissal at the time of preliminary hearing. However, if this aspect of the case is not noted at the preliminary hearing and the appeal proceeds to next stage and the respondents enter appearance to, contest the appeal after service of notice from the Court, the dismissal of appeal at that stage on the ground of absence of notice has been held, in number of judgments, to be not required inasmuch as sufficient compliance has been made and the giving effect to this objection would amount to giving so much importance to a technicality. In the case of Fateh Muhammad v. Muhammad Hanif and another PLD 1990 Lahore 82 it has been held that, where no material prejudice is shown to have been caused, non---service of notice by itself will not be fatal. During the course of hearing it has trot been argued that due to non-service of the requisite notice before presentation of appeal in this Court, the respondents have suffered any material prejudice. Resultantly, I am not minded to give effect to this technical objection at this stage and overrule the same.
4. Learned counsel for the respondents has then supported the denial of injunction by the trial Court by submitting that the question of appellant's pauperism is still pending and in such a situation Order 39, Rules 1 and 2 are not applicable. By relying on the provisions of Order 32, Rules 2 and 8 of the Civil Procedure Code, 1908, it is contended that it is only when the application to sue in forma pauperis has been granted that a suit can be said to have been instituted and it is only thereafter that the provisions of Order 39 are available. Reliance in this regard is placed on Four Friends Construction Co. v. Domez Eorie, Chashtna Barrage, Contractors and another (1974 SCMR 461).
5 This argument has force and the judgment in the case of Four Friends construction Co.- (1974 SCMR 461) supra fully supports the argument. It has been held by the Supreme Court that until the grant of application to sue in forma pauperis, no suit is said to have been instituted and it is only after the permission is granted that the application is registered as a suit and it is thereafter that the provisions of Order 39 become available. However, this is not the end of the matter. The question whether m such circumstances the applicant or plaintiff cannot at all be granted any interim injunction, has been the matter of consideration and as early as 1920 this Court answered the question by holding that in exercise of residual power preserved under section 151, C.P.C., the Court can pass orders meant to preserve the subject-matter of the suit pending further proceedings. This is the view taken in the case of Manohar Lal Mahabir Pershad, Delhi v: Jai Narain Babu Lal of Delhi (AIR 1920 Lahore 436). In the case of Dhaneshwar Nath Tewari v. Ghanshyam Dhar Mtsra (AIR 1940 Allahabad 185), the question was dealt with in detail and after appraisal of the case-law on the subject, the Allahabad High Court followed the view of this Court reported in AIR 1920 Lahore 436. The facts in Allahabad case are more or less similar to the facts in this appeal and it was held that the order of the trial Court was justified even if Order 39 was held to be not applicable. This view was again approved and followed in Full Bench Judgment of Patna High Court reported as Matuki Mistry v. Kamakhaya Prasad and others (AIR 1958 Patna 264). The Patna High Court was more specific and it said that pending the question of pauperism the trial Court was competent to issue interim injunction under section 151, C.P.C. And even under Order 39, Rules 1 and 2, C.P.C.
6. This Court is bound by the principle of law laid down by the Supreme Court of Pakistan. Although the cases from the Lahore High Court, Allahabad High Court and Patna High Court do not seem to have been cited before their Lordships of the Supreme Court but the question whether interim relief can be provided to the pauper applicant pending decision on his application under section 154 of the Civil Procedure Code, 1908, has not been negatived by the Supreme Court. All that it has laid down is that Order 39 will be applicable only after the permission to sue in forma pauperis is allowed. In fact as the perusal of the record of the judgment reveals, the question whether such a pauper applicant could be granted any relief under section 151, C.P.C. Was never debated before their Lordships. Learned counsel for the respondents is, therefore, not correct in reading in the judgment of the Supreme Court some thing which was neither debated and, therefore, not decided. I would, therefore, hold that powers contained in Order 39, Rules 1 and 2, C.P.C. May not be available to the trial Court in this case but the impugned order could be passed under the inherent power of the Court as preserved in section 151, C.P.C. I would now proceed to examine the order of the trial Court on merits.
7. In support of the appeal, learned counsel has repeated the submissions which have not found favour with the trial Court in the impugned order. The view of the trial Court that the case of the appellant requires evidence to establish and that on the other hand the respondents' assertion was supported by documents, is correct. The appellant has not been able to prima facie show that the transaction entered into by respondent No.4 in favour of respondent No.1 was invalid on the score of misrepresentation etc. The trial Court is correct that question of misrepresentation cannot be determined without recording evidence.
8. After hearing the learned counsel, I am satisfied that this conclusion of the trial Court cannot be said to be illegal or incorrect. Resultantly, this appeal has no force and is dismissed without any order as to costs.