M/s. Nasir Metal Crafts (Pvt.) Ltd, the petitioner herein, filed a suit for permanent injunction against the respondents in which an application under Order 39, Rules 1 and 2 was also moved for restraining respondent No.3 from making any payment under a contract for supply of Solvent Oil Extraction-cum---Refining Plant to respondents Nos. l and 2 till the decision of the suit.
2. The trial Court on 15-7-1996 while issuing notices to the defendants/respondents for 21-7-1996 also granted an ad interm injunction till that date. This application remained pending with the Civil Judge for various reasons which need not be dilated upon. However, on 5-8-1996 respondent No. l filed an appeal against the order dated 15-7-1996 before the District Court. That appeal came up for hearing before the learned Additional District Judge who accepted the same on 16-9-1996.
Hence this revision.
3. The main contention raised by the learned counsel for the petitioner in support of this petition is that as respondent No. l had failed to serve a notice under Order 43, Rule 3 of C.P.C. Upon the petitioner, the appeal before the District Court was not maintainable. In support of this contention, learned counsel has heavily relied upon the pronouncement of Supreme Court in Mrs. Dino Manekji Chinoy and others v. Muhammad Matin PLD 1983 SC 693.
4. This contention was also raised before the learned Additional District Judge by the petitioner but was repelled by observing that as the appeal stands admitted to regular hearing and the parties had appeared before him, there was no occasion to dismiss the appeal on the ground of lack of service of notice under Order 43, rule 3, C.P.C.
5. Having heard the learned counsel for the parties and gone through the precedents cited by him, I find that this approach of the Additional District Judge is unexceptionable. Admittedly, at the time when the objection of non-service of notice was raised, all the parties had appeared before the Additional District Judge and the appeal had gone through the stage of admission. The question, of lack of service of notice had thus pailed into insignificance.
6. A Division Bench of this Court in Ch. Bashir Ahmad and others v. Province of Punjab 1990 M LD 986 after reviewing the entire case-law on the subject including the case of Mrs. Dino Manekji 'surpa'
PLD 1983 SC 693 has observed as under;--- "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 permission 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 provision of Order XLIII, Rule 3 of the Code of Civil Procedure."
The interpretation of the Division Bench of the judgment of the Supreme Court is binding on me. I have therefore no hesitation in repelling this contention.
7. Learned counsel for the petitioner next attempted to argue that the Additional District Judge had erred in vacating the temporary injunction granted by the Civil Court. The argument is again devoid of any force. Admittedly, there is no privity of contract between the petitioner and respondent No.3. The petitioner claims that a part of the contract was sublet to it by other two respondents. Even if that be so, the petitioner cannot ask for any injunction e against respondent No.3. Be that as it may, as the dispute having arisen out of a contract it is purely fiscal in nature, it is highly doubtful whether a suit for permanent injunction was at all maintainable. In these circumstances, if the petitioner is of the view that respondents Nos. l and 2 have failed to honour their obligations, its remedy lies, in filing a suit for damages and not by asking for permanent injunction.
Dismissed in limine.