' Briefly stated, the facts giving rise to the present revision petition are that the respondent filed a suit for declaration and permanent injunction against the petitioner to the effect that no agreement subsists between the parties where under the petitioner can stop supply of gas to the respondent during the month of December, 1990 to February, 1991. The suit was accompanied by an application under Order XXXIX, Rules 1 and 2, C.P.C. Wherein it was prayed that the petitioner be restrained by grant of permanent injunction from disconnecting the supply of gas for the period commencing from December, 1990 to February, 1991.
2. The suit as well as application was contested by the petitioner. The learned trial Court after hearing arguments confirmed the stay order as prayed for by the respondent vide order, dated 24- 1-1991. The petitioner preferred an appeal against the said order in the Court of learned District Judge. Sheikhupura which was entertained in the office on 19-2-1991 and was entrusted to the Learned Additional District Judge Sheikhupura who dismissed the same on 202-1991 in limine on the ground that the requirement of Order XLIII, Rule 3, C.P.C., were not complied with by the petitioner.
3. The revisal of the order is sought on the ground that not only the petitioner served the respondent with the required notice under registered/A.D. Cover but also placed on record an affidavit, dated 17-2-1991 sworn in by the General Manager Legal of the petitioner's company to the effect that the petitioner made all sorts of effort to deliver the requisite notice but the respondent refused to receive the same and that the learned lower Appellate Court has failed to exercise jurisdiction vested in it in deciding the appeal on merits and illegally resorted to technicalities and did not peruse the documents on record or the relevant provisions of law.
4. The revision petition was admitted on 19-5-1992 and notice for its hearing on 8-5-1992 was duly served upon the respondent as per report of the Process-Server (Mark-A) and power-of-attorney (Mark-B) was filed by Mr. Azmat Saeed Advocate on 6-6-1992 on its behalf. Thereafter the case was never fixed and has now been listed in the Daily Single Bench Supplementary. Cause List for today (Monday 31-5-1999) in which the names of the counsel for the parties are correctly mentioned but only the learned counsel for the petitioner has appeared and learned counsel for the respondent is not present. As such, the respondent is proceeded as ex parte. Ex pane arguments have been heard.
5. Relevant law on the subject is contained in Order XLIII, Rule 3, C.P.C., which reads 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 along with a copy of the order appealed (against either personally or through registered post acknowledgement due and the postal or other receipt shall be filed with the memorandum of appeal for the record of the Appellate Court).
(2) On receipt of notice referred to in sub-rule (I), 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. In the case of Mrs. Dino Manekji Chinoy and 8 others v. Muhammad Matin (PLD 1983 SC 693), the Hon'ble Supreme Court of Pakistan while dealing with the nature of the provisions of Order XLIII, Rule 3, C.P.C.,. Observed as under:--- "15. 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 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 acknowledgement receipt to the effect that a copy of the grounds of appeal along with the other documents tias, indeed, been received by the respondent or his Advocate.
16. 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 entertain ability of the appeal.
3 17. 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.
18. 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 pendent 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 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 appeal 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 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 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."
7. It is on the record that the petitioner before presenting the appeal give notice of the appeal to the respondent along with copy of memorandum and grounds of appeal and of the order appealed against to obtain an acknowledgement of receipt thereof but the same was refused. To that effect, there is affidavit of S.M, Sarwar, General Manager Legal/Company Secretary S.N.G.P.L., Gas House, 21 Kashmir Road, Lahore, certified true copy of which is at page 31 of this revision petition. There is also on the record postal receipt bearing No,172 according to which registered/A.D.
Notice was sent to the respondent by Ch. Akbar Ali Shad, Advocate which clearly states that it was a notice from the Advocate of the appellant to the respondent that he was going to file an appeal before learned District Judge, Sheikhupura against the order of the Civil Judge, Ferozewala, dated 24-1-1991. It also mentions that copies of the impugned order, dated 24-1-1991 and grounds of appeal were attached therewith. Both the documents are at pages 29 and 30 of this revision petitioner. In this circumstance, there was sufficient compliance of Rule 3 of Order XLIII, C.P.C., by the revision petitioner. In the case Muhammad Ramzan and another v. Haji Karim Baldish and 5 others (1988 CLC 448) (Lahore), this question had come under consideration before this Court and my learned brother Amjad Khan, J. (as he then was) observed as under:--- "4. There is no doubt that the view of the Additional District Judge is not correct and he was only ill- advised to throw out the appeals at that stage, on such a ground. Relevant pan of Rule 3, of Order XLIII, is. "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 along with a copy of the order appealed against and obtain an acknowledgement of receipt thereof for the information of the Appellate Court."
' Section 27 of the General Clauses Act (X of 1897) provides:--..
"Where any Central Act or Regulation made after the commencement of this Act authorizes or requires any document to be served by post, whether the . Expression "serve" or either of the expression "give" or "send" or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, prepaying and posting by registered post, a letter containing the document, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post."
' Rule 3 enjoins merely that an appellant will "give notice" by fulfilling the prescribed requirement and its mode has, however, not been prescribed so that he is free to adopt any legal manner for this purpose but it is not that he will also be responsible even for the actual service of a registered notice, if he elects to give notice a registered post notice, in the absence of proof to the contrary, also arises under the above quoted section 27 and a similar presumption arises even under section 14 of the Evidence Act. It really surpasses comprehension as to how, in the presence of the above quoted section 27, may the Additi6W-. District Judge have thought that the postal receipts of issuance of registered letter did not prove that the required notices had been duly given?
' It is not always possible for a litigant to exact an acknowledgement from his opponent with regard to service of notice and, in such a situation, he can legitimately approach the post office with the requisite notice for service on the opposite party because a post office can be taken to be acting as an agent for the party. This position is clearly envisaged by sections 4 and 5 of the Contract Act and the illustrations appended thereunder. In a case, reported as Westhead v. Sproson (30 L.J.Ex.
265) which was decided by the Court of Exchequer in England under the analogous provisions of law, it was held:--- "it is settled law that an offer is deemed to be accepted when the letter of acceptance is, posted, the post office is to be considered the common agent of both the parties."
' In Bashir Ahmad v. Mumtaz Khan (PLD 1965 Lah. 126), a question with regard to service of notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 had come up for consideration and on a conspectus of decided cases it was held that a notice, if proved to be correctly addressed and posted, is presumed to have been received by the addressee. Actually, there are volumes of case-law available on the subject and reference may usefully be made only to some of the old cases. In Harihar Benerji trnd others v. Ramshashi Roy and others (AIR 1918 Privy Council 102), it was held: "if a letter properly directed, containing a notice to quit, is proved to have been put into the post office, it is presumed that the letter reached its destination at the proper time according to the regular course of business of the post office, and was received by the person to whom it was addressed and that presumption would apply with still greater force to letters which the sender has taken the precaution to register."
' Yet another authority about due service being presumed to have been made from the moment of posting of a registered letter is Girish Chandra Ghose v. Kishore Mohan Das (AIR 1920 Cal. 287(2)), wherein it was laid down as under:- "The evidence proves that the notice was placed in a registered cover addressed to the defendant at his residence. It was taken to the post office, registered there and left in the custody of postal authorities. Therefore, under section 114, Evidence Act, the letter having been properly placed in the custody of post office, the Court might presume that the letter reached the defendant."
' In Gobinda Chandra Saha and another v. Dwarka Nath Patita (AIR 1915 Cal. 313), a similar presumption about delivery to the addressee in due course of post was held to arise under section 114 of the Evidence Act from post-mark of date and place of posting which was held entitled to be presumed as genuine. Again, in Aburubammal-Garnishee v. The Official Assignee of Madras (AIR 1924 Mad. 214), it was held:- "The presumption is that a letter which is proved to be posted and posted to the right address is in fact received by the recipient."
' To the same effect see also Kamakhya Narain Singh v. Khalik Ahmad and others (AIR 1927 Pat. 305 and Smt. Hamangin Dassee v. Smt. Samalatika Dassee (AIR 1940 Cal. 227).
' The question about the service of notices through post has come up before the superior Courts for consideration in a variety of circumstances, even where they had been received back endorsed with refusal of acceptance and although there is some conflict of judicial opinion as to whether or not it is necessary to prove the refusal of such a notice by means of direct evidence, yet, there is no dissension of views either with regard to such notice reaching the addressee in normal course or about the sufficiency of such a service.
In these cases, it is admitted that registered notices were so delivered in the post office one day before the institution of the appeal where to receipts of their issuance were also appended. Hence, onus got shifted to the respondents to positively prove the contrary which they did not discharge and it was wrong to have expected that they may have appended with their appeals even the acknowledgement receipts which are returned by the post office to the sender. Since a notice is deemed to have been given to the addressee as soon as it is handed over to the agent (a post office in this case), therefore, the receipts issued in that behalf, after receiving the relevant envelopes, were entitled to be considered the acknowledgements spoken of in Rule 3 (ibid.). There is no reason why the principles laid down in the above cited cases may not have applied to the notices issued by the petitioners in pursuance of the requirements of Rule 3 of Order XLIII of the C.P.C. Hence, the- view held by the Additional District Judge to the effect that compliance of law had not been made, is altogether unsustainable."
8. Same view was taken by this Court in C.R. No,339 of 1990 titled as "Shabrati v. Nawaz Khan and 2 others".
9. Apart from this, there has been new development whereby procedural reforms have been brought for expeditious disposal of civil cases by the Civil Laws (Reforms) Act, 1994, w,e,f, 31-7-1994 whereby in order XLIII, in Rule 3, in sub-rule (1) for the words "and obtain an acknowledgement of receipt thereof for the information of the Appellate Court" the words "either personally or through registered post acknowledgement due and the costal or other receipt shall be filed with the memorandum of appeal for the record of the Appellate Court" have been substituted. In this view of the matter, the revision petition merits to be allowed.
For the above reasons, it is held that the learned Additional District Judge failed to exercise jurisdiction vested in him under the law in the circumstances of this case. As such, the revision petition is accepted, impugned order, dated 24-1-1991 is set aside and the case is remanded back to the learned lower Appellate Court for disposal of appeal on merits. There is no order as to costs.