This revision application under section 115, C.P.C. is directed against the order, dated 30th September, 1998 by the First Additional District Judge, -Karachi, (South).
2. The relevant facts are that the respondents filed suit for declaration and permanent injunction against the applicant and others in the Court of Xth Civil Judge, Karachi South, being Suit No.1218 of 1994. The respondents/plaintiffs filed an application under Order 39, Rules 1 and 2, C.P.C. which was allowed' on 6-11-1996. The trial Court directed to maintain status quo till the disposal of suit.
3. Being aggrieved with the granting of injunction, the applicant, Qamaruddin filed miscellaneous appeal which was heard by the learned First Additional District Judge, Karachi South. The learned counsel for the respondents/plaintiffs raised objection before the learned Additional District Judge that a notice was required to be served by the appellant on the respondents under Order 43, Rule 3, C.P.C. The said notice was not served before filing the appeal and hence the appeal was not maintainable. Reliance was placed on the judgment of Honourable Supreme Court of Pakistan, in the case of Mrs. Dino Manekji Chinoy and .8 others'v. Muhammad Matin PLD 1983 SC 693. Further reliance was placed on a Single Bench judgment of Sindh High Court in the case of Nazir Ahmed Jagirani Baloch 1987 CLC 1750. It was contended that the provisions contained in Order 43, Rule 3, C.P.C. are mandatory in nature and non-compliance thereof would render the judgment of Appellate Court illegal and, therefore, the appeal was not maintainable. The learned Additional District Judge accepted the contention and held that for want of notice under Order 43, Rule 3, C.P.C. on the respondents, prior to the filing of appeal the appeal was not maintainable. The miscellaneous appeal was dismissed accordingly, for this sole reason.
4. The applicant being aggrieved with the dismissal of Civil Miscellaneous Appeal has preferred this revision application.
5. I have heard Mr. Rizwan Ahmed Siddiqui, Advocate for the applicant and Mr. . Mehmood Habibullah, learned counsel for the respondents.
6. Mr. Rizwan Ahmed Siddiqui, has submitted that the learned First. Appellate Court has failed to exercise jurisdiction vested in it and has thereby committed illegality. He has further submitted that the learned First Appellate Court has accepted the contentions of the respondents, without going through the judgment of the Honourable Supreme Court of Pakistan in the case of Mrs. Dino Manekji Chinoy and 8 others v. Muhammad Matin PLD 1983 SC 693 and has acted in flagrant violation of the dictum laid down by the Honourable Supreme Court, in the case of Salahuddin v.
Syed Mansoor Ali Shah 1997 SCMR 414. He has contended that with the issuance of notice to the respondents by the Court before making any order, the purpose of provisions contained in Order 43, Rule 3, C.P.C. was fulfilled and, therefore, the learned First Appellate Court instead of . dismissing the Miscellaneous Appeal for the reason of technical noncompliance, ought to have decided the appeal on merits, by adopting the purposive approach.
7. On the other hand Mr. Mehmood Habibullah, learned counsel for the respondents. has supported the impugned order of the learned First Appellate Court by placing reliance on the judgment of Lahore High Court, reported as 1997 CLC 659.
8. I have carefully considered the contentions raised by the learned Advocates for the parties, and in the facts and circumstances of the case, am persuaded to agree with the contention Of learned counsel for the applicant.
Rule 3 was inserted in Order 43, C.P.C. by Ordinance X of 1980 and an amendment was made in the year 1994. Order 43, Rule 3, ,C.P.C. reads as follows:-- "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 filed 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."
9. This provision came for consideration before a Division Bench of this Court in the case of Muhammad Matin v. Mrs. Dino Manekji Chinoy and others PLD 1983 Kar. 387. The provision was examined in depth by his Lordship Mr. Justice Abdul Hayee Qureshi, Acting Chief Justice. I can do no better than to reproduce the entire discussion which is as follows:-- "Before we go to the merits of the appeal in so far as the cardinal rules for grant of injunctions are considered vis-a-vis application of such rules to the facts,of the present case, we would like to dispose of a preliminary objection raised by Mr. Akhtar Mahmood in regard to the maintainability of this appeal."
The learned Advocate has urged before us that the provisions of Order XLIII, Rule 3, C.P.C. requiring notice before presentation of appeal had not been complied with, because the applicant, who has given notice of such appeal to the respondent, or, his Advocate, had not complied with the rule.
Rule 3 was enacted by Ordinance X of 1980. It reads as follows:- "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 posts 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 (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."
The contention of Mr. Akhtar Mehmood is that the use of the word "shall" in the said rule would seem to indicate that rule was imperative and mandatory. A counter-affidavit was filed on behalf of the respondents on 2-1-1983, and the same is at page 421 of the record. An objection was taken on the ground of non-compliance with this rule, and it was stated that the appeal was liable to be dismissed summarily on such ground of noncompliance. However, when this appeal came up for admission on 17-1-1983, Mr. Akhtar Mehmood was present on pre-admission notice. It was stated by Mr. Akhtar Mehmood that he would not press this point. No doubt the order-sheet, dated 17-1- 1983 does not mention that this point was not being pressed, but during arguments Mr. Akhtar Mehmood as well as Mr. Naseem Farooqui, stated that Mr. Akhtar Mehmood did say so. However, Mr. Akhtar Mehmood stated that, since the point was one of law and touched what he called the jurisdiction of this Court, he may be permitted to argue the same. We are, however, of the view that the point was not in regard to jurisdiction of the Court, but merely in relation to a correct exercise of power of this Court. Ordinarily the word "shall" is construed as couching a mandatory provision, but very often the words "shall" and "may" connote interchangeable concepts. The point has been considered by some learned authors. Crawford in "Statutory Construction", 1940 Edn. at topics 261 and 262 has considered the question in all aspects. At page 520, the learned author has stated the case as such:-- "Nevertheless, it will always be presumed by the Court that the Legislature intended to use the word in their usual and natural meaning. If such a meaning, however, leads to absurdity, or great inconvenience, or for some other reason is clearly contrary to the obvious intention of the Legislature, then words which ordinarily are mandatory in their nature will be construed as directory, or vice versa. In other words, if the language of the statute, considered as a whole and with due regard to its nature and object reveals that the Legislature intended the words 'shall' and 'must' to be directory, they should be given that meaning. Similarly, under the same circumstances, the word 'may' should be given a mandatory meaning, and especially where the statute concerns the rights, and interests of the public, or where third persons have a claim de jure that a power shall be exercised, or whenever something directed to be done for the sake of justice or the public good, or is necessary to sustain the statute's constitutionally."
Maxwell on "The Interpretation of Statutes", Twelfth Edn., at p.314 has also stated the case as follows:-- "It is impossible to lay down any general rule for determining whether a provision is imperative or directory. 'No universal rule', said Lord Campbell L.C. 'can be laid down for the construction of statutes, as to whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for disobedience. It is the duty of Court of justice to try to get at the real intention of the Legislature by carefully attending to the whole scope of the statute to be construed."
In the same treatise, the learned author has referred to the judgment of Scarman, J., in the case of B. v. B.(1). In that case, the learned Judge was considering a question in relation to the import of provision, stating that Court shall not make any decree for divorce, or nullity of marriage absolute, unless and until the Court was satisfied that the parties had, in the matter of upbringing of the children, made satisfactory arrangement. It may be noted that the statute has used the word "shall" and with the added qualification by use of the word "not" that it appeared that the Court would be completely debarred from making the decree absolute, if conditions were not fulfilled. Yet the learned Judge, at page 397 of the Report, observed as follows:-- "' I agree', said the learned Judge (at page 397)' that prior authority on other statutes is not of great assistance to the Court in determining the intention of the Legislature when this section was enacted. It seems to me that it is my duty to look at this statute, to look at the circumstances in which it was enacted and the purposes that it was intended to serve, and then to come to a conclusion whether the purposes intended this requirement as to the Court's action before making a decree absolute to be something without which the parties should have no decree absolute or Merely a beneficial requirement which, if ignored by the parties (of course in all innocence), could thereafter, be ignored by the law of the land."
Craies on "Statute Law", Sixth Edn., has considered the point with more particularity in relation to the object of a statute relating to general policy in contradistinction to the object being for the benefit of a person, or, a class of persons. Order XLIII, Rule 3, C.P.C. undoubtedly, is not a provision regarding general policy of the realm, but only intends to give benefit to a class of persons, who come as suitors before a Court. In that regard, the learned author at page 269 has stated the case thus: "If the object of a statute is not one of general policy, or if the thing which is being done will benefit only a particular person or class of persons,. then the conditions prescribed by the statute are not considered as being indispensable, this rule is expressed by the maxim of law, Quilibet potest renuntiare juri pro se interoducto. As a general rule, the conditions imposed by statutes which authorise legal proceedings are treated as being indispensable to giving the Court jurisdiction. But if it appears that the statutory conditions were inserted by the Legislature simply for the security or benefit of the parties to the action themselves, and that no public interests are involved, such conditions will not be considered as indispensable, and either party may waive them without affecting the jurisdiction of the Court."
Mr. Akhtar Mehmood has invited our attention to the judgment of the Supreme Court in the case of Atta Muhammad Qureshi v. The Settlement Commissioner, Lahore (1). Mr. Justice Sajjad Ahmad Jan, has examined this point by reference to consequences of neglect of plain requirements of statutory enactments, prescribing the mode of doing a particular act. The learned Judge formed a question. It was, whether an enactment is to be considered as absolute, or, directory. At page 70 of the Report, the learned Judge expressed as follows:-- "It is not possible to lay down a general rule of universal application in this behalf, but the one which is suggested by reported authorities in this connection is the affirmative or negative character of the language in which the provision is couched. If it is negative, that is to say, if the statute enacts that certain action shall be taken in a certain manner and in no other manner, it has been held that the requirements are absolute and that neglect to attend them will invalidate the whole procedure. If, on the other hand, the language is affirmative, it may be considered as a directory provision. Nonetheless, it appears that in several reported English cases, it has been held that an enactment, prescribing the formalities which are to be observed for validating an action, are not absolute, although expressed in negative or prohibitory language. In Mayor of London v. R.
(1948) 13 QB 30, it was stated that 'the words negative and affirmative of a statute mean nothing'.
The question is whether they are repugnant or not to that which before existed. That may be more easily shown when the statute is negative than when it is affirmative, but the question is the same."
Again, in the case of Mansab Ali v. Amir and 3 others (2), a case decided by our Supreme Court the same point came up for consideration, and the learned Judges once again expressed the opinion that the result, or, consequences of non-compliance would depend on the question, whether the provision is mandatory, or not. We would also refer to the case of Niaz Muhammad Khan v. Mian Fazal Raqib (3) because, in that case the nature of the provision had been held to be mandatory or directory by reason of the statute providing for consequences of non-compliance. The learned Judges stated the case as follows:-- "It is the duty of the Courts to try to get at the real intention of the Legislature, by carefully attending to the whole scope of the statute to be construed. As a general rule, however, a statute is understood to be directory when it contains matter merely of direction, but not when those directions are followed up by an express provision that, in default of following them, the facts shall be null and void. To put it differently, if the Act is directory, its disobedience does not entail any invalidity, if the Act is mandatory disobedience entails serious legal consequences amounting to the invalidity of the act done in disobedience to the provision."
The question in regard to a provision being mandatory, or directory is not capable of an easy answer. The answer has to depend on several questions in regard to the correct interpretation of the statute itself, the objects which the statute wants to fulfil, the consequence which follows the non-compliance of the rule, the prejudice and quantum thereof that it causes to the other party by non-compliance, the penalty which the statute prescribes in the matter of non-compliance and the nature of the provision, whether it is for the benefit of the entire populace, or, is in the limited sense of the parties being concerned only in a particular cause. All these questions need to be considered, while determining the nature of the provision.
In the background of forbearance which Akhtar Mehmood had expressed on 17-1-1983, by stating that he 'does not press that point, it is easy to infer that no prejudice has been caused to the respondent. In any case, we are dealing with an appeal in which we refer to and review only such questions as are already within the knowledge of both the parties. No grievance has been made on the score that same copies of documents, to which reference has been made by the appellant during the arguments, had not been supplied to Mr. Akhtar Mehmood. At no stage of the case, Mr. Akhtar Mehmood has made a grievance that he had been taken by surprise. The point of prejudice, therefore, does not arise in this case at all. We also cannot overlook that Order XLIII, Rule 3, C.P.C. does not provide for the consequences that will ensure in regard to an appeal on account of noncompliance of the rule. One of the important test in-the matter of a rule being mandatory, or, directory is, whether a consequence in the nature of dismissal of an appeal, or, imposition of penalty must ensue on account of the noncompliance. The statute book contains several provisions laying down the consequences for non-compliance of a rule. But, in the instant case, the consequences are not stated, muchless than the dismissal of an appeal for the mere reason of non-supply of copies. This appears to be a rule of convenience and expediency. In the background of legislative process, it may be remembered that before the enactment of Order XLIII, Rule 3, C.P.C., no less than three, or four successive dates of hearing were consumed, so that the parties could become ready by knowing the case of each other. This rule C was enacted, so that such wastage of time could be avoided, but just for that reason, the rule cannot be termed to be a mandatory rule, the non-compliance with which must inevitably result in dismissal of an appeal. We overrule this objection.
10. The above judgment was assailed before the Honourable Supreme Court of Pakistan and vide judgment reported as PLD 1983 SC 693, the Division Bench judgment of this Court, rejecting the preliminary objection was upheld. It was observed that the appeal preferred before Division Bench was liable to be disposed of on merits. The findings of Honourable Supreme Court of Pakistan are as follows:-- "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 alongwith 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 alongwith the other documents has, 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 entertainability of the appeal.
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 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 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, alongwith 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 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.
19. In the instant case, we observed that the learned Division Bench has issued a pre-admission notice to Advocate of the respondents (the petitioner herein) and their Advocate Mr. Akhtar Mehmood 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 hold and not to thwart the obtaining of justice. and procedural laws, as pointed out by Mr. Sharifuddin Pirzada, should be utilised as 'stepping stones' rather than we might add, as stumbling blocks; the right of a party in this case to have his appeal heard, cannot be allowed to be defeated for failure to comply with the form where the substance has, in fact, been complied with."
11.After the above judgments, the controversy ought to have been laid to rest but unfortunately it was not done so and conflicting views were expressed by various Benches of the Sindh High Court, Lahore High Court, Peshawar High Court and Blochistan High Court.
12.The issue was raised before Lahore High Court in the case of Ch. Bashir Ahmed and 4 others v.
Province of Punjab and 4 others and because of divergence of opinion by various High Courts, and by different Benches of the High Courts, a learned Single Judge referred the case to a Division Bench and vide judgment reported as PLD 1990 Lah. 266, the learned Division Bench of Lahore High Court discussed a large number of cases from various High Courts. The judgments considered by the learned Division Bench of the Lahore High Court are as follows:-- (1)Mrs. Dino. Manekji Chinoy and 8 others v. Muhammad Matin PLD 1983 SC 693, (2)Siraj Din and others v. Province of Punjab 1984 CLC 1287 (Lahore High Court), (3)Muhammad Shafi v. Muhammad Amin 1984 CLC 1528 (Lahore High Court), (4)Muhammad Siddique and 6 others v. Boota PLD 1985 Lah. 243, (5)Ghulam Rasul v. Mst. Fatima 1987 CLC 1177, (6)Nazir Ahmed Jagirani Balouch v. Province of Sindh and another 1987 CLC 1750, (7)Messrs Haji Suleman Gowawala & Sons Ltd. v. Usman and 13 others 1985 CLC 168, and (8)Muhammad Ramzan and another v. Haji Karim Bakhsh and 5 others 1988 CLC 448.
13.I would like to refer to a judgment by Balochistan High Court in the case of Haji Muhammad Naeem and another v. Malik Ghulam Nabi and 5 others PLD 1988 Quetta 9 and by the Peshawar High Court in Salahuddin v. Mansoor Ali Shah F.A.O. No.7 of 1995. In both these judgments it was held that the service of notice required in Order 43, Rule 3; was mandatory in nature and the non- service of notice on the respondent was sufficient in itself for dismissal of appeal. The latter judgment was overruled by the Honourable Supreme Court of Pakistan, vide judgment reported as 1997 SCMR 414.
14.The learned Division Bench of the Lahore High Court in the case of Ch. Bashir Ahmed v. Province of Punjab (supra), held as follows:-- "15. It seems that while deciding the first five cases what the Court understood by the expression 'no appeal' can be entertained and ' appeal should not be entertained' occurring in the Supreme Court judgment in Mrs. Dino Manekji Chinoy v. Muhammad Matin was that the appeal could not be given any consideration and in a way it was incompetent and not maintainable and as such should be dismissed. On the other hand the contrary view expressed in Suleman Gowawala & Sons Limited v.
Usman 1985 CLC 168 and Muhammad Ramzan v. Karim Bakhsh 1988 CLC 448 indicating that these expressions were received in the sense of not considering the appeal for deciding the question of its admission to regular hearing. It appears that the resolution of the controversy depends upon the true interpretation of the word 'entertain'. Its dictionary meaning, given in the Oxford English Dictionary, in the context of the prevailing situation, is to admit to consideration. The Supreme Court of India had the occasion of gauging the Lakshmiratan Engineering Works Limited v. Assistant Commissioner (Judicial-I), Sales Tax, Kanpur Range AIR 1968 SC 488, the import of the word 'entertain' used in analogous sense in the proviso to section 9 of the Uttar Pradesh Sales Tax Act, 1948, which ordained that no appeal against an assessment should be entertained unless it was accompanied by satisfactory proof of the payment of the amount of tax admitted by the appellant to be due or of such instalments thereof as might have become payable. The appeal of the assessee was rejected by the Assistant Commissioner of Sales Tax because in his opinion provisions of section 9 (as also of Rule 66(2)) had not been complied with since no proof had been given alongwith memorandum of appeal that the tax had been paid. The question for determination before the Supreme Court was as to what was the meaning of the word 'entertain' used in the proviso to section 9. The Court examined different fracets of its meaning, whether it meant that no appeal could be received or filed or it meant that no appeal could be admitted or heard and disposed of unless satisfactory proof was available. The Court mainly banked upon the dictionary meaning of the word 'entertain' referred to above for formulating its decision. After examining a few High Court cases wherein the word 'entertain' had come up for interpretation it concluded that the direction to the Court in the proviso to section 9 was that the Court should not proceed to admit to consideration an appeal which was not accompanied by satisfactory proof of the payment of the admitted tax and that would be when the case was taken up by the Court for the first time. It explained that when the proviso spoke of the entertainment of the appeal it meant that the appeal such as was filed would not be admitted to consideration unless there was satisfactory proof available of the making of deposit of the admitted tax.
16. It would be legitimate to accept the dictionary meaning of the word 'entertain' used by the Supreme Court of Pakistan in its judgment. Therefore, the expression that no appeal can or should be entertained would signify that the appeal would not be given any judicial consideration by the Court. It need hardly be mentioned that the very beginning of such consideration starts with the preliminary hearing of the appeal at limine stage. The legal consequences of non-observance of the condition precedent to the filing of appeal, namely, giving of notice to the respondent or his Advocate, as stated by the Supreme Court in Mrs. Dino Manekji Chinoy's case, are that the appeal would not be entertained, that is to say, it would not be given judicial consideration by the Court.
The officers of the Court responsible for receiving and scrutinizing the appeal would get precondition of giving of notice of the appeal to the respondent or his Advocate fulfilled before the appeal is entertained and laid before the Court for preliminary hearing. If per chance the appeal is placed before the Court in the absence of previous notice to the respondent or his Advocate, the Court woad decline to hold preliminary hearing till after notice has been served upon the respondent or his Advocate.
17. 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 nc 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 penalized 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 provisions of Order XLIII, Rule 3 of the Code of Civil Procedure."
15. The latest judgment on the point is by the Honourable Supreme Court of Pakistan, in the case of Salahuddin v. Syed Mansoor Ali Shah and others 1997 SCMR 414. It was contented in this case that the appearance on behalf of respondent was put in. High Court, before full hearing of the case by the D.B, of the High Court and, thus, object of serving notice under Order 43, Rule 3, C.P.C. was fully served and achieved. In these circumstances the case was sent back to the High Court for decision on merits. It was held by the Honourable Supreme Court of Pakistan as follows:-- "We are, otherwise, satisfied that as the respondents were fully represented before the learned Judges of the Division Bench before admission of the appeal, the object of serving a notice on the respondents under Order 43, Rule 3, C.P.C. before filing of the appeal was fully met in the case and therefore, the appellant could not be non-suited in the appeal on this ground."
16.Before parting with this order I would like to refer one judgment of the Lahore High Court and the other by this Court. In the case of Abdul Ghani v. Settlement and Rehabilitation Commissioner and another NLR,1983 Civil 558, it was held by Justice Irshad Hasan Khan (as his Lordship then was) that "mere failure to serve notice of the appeal on respondent would not by itself, furnish a valid ground for dismissal of appeal. The rationale behind provisions of Rule 3 is to achieve expeditious disposal- of appeals against interlocutory orders and application filed before the Appellate Court during pendency of a suit. The provisions are somewhat pari materia with the caveat system prescribed by Supreme Court Rules. The purpose is that the opposite-party may appear before a Court at the time of hearing of appeal in motion without being summoned through process of Court. The respondent in this case admittedly appeared at the time of admission of the appeal, therefore, the technical non-compliance of the provisions of Order 43, Rule 3, C.P.C. have not occasioned any injustice to the respondent. It is well-settled that the object behind all procedural laws is to save paramount interest of justice and the mere technicalities, unless offering insurmountable hurdles cannot be allowed to defeat the ends of justice".
17. In the case of. Elite D. Silva v. Dilawar Hussain 1993 CLC 361, a Single Judge of this Court after reference to the judgment of Honourable Supreme Court reported as PLD 1983 SC 693 and other judgments held that "in view of the judgment reported as PLD 1983 SC 693, referred to above, the defect in serving notice under Order 43, Rule 3, C.P.C. before filing of the appeal stood cured upon pre-admission notice having been given by the learned First Appellate Court to respondent before admission and hearing of the appeal. The appeal, therefore, could not have been dismissed on that legal ground".
18. Consequent to the above discussion, it is held that the substantial compliance was made with the provisions under Order XLIII, Rule 3, C.P.C. with the appearance of the learned counsel for the respondent before the First Appellate Court, prior to the consideration of merits and application of mind by the First Appellate Court. In these circumstances the learned First Appellate Court ought to have decided the miscellaneous appeal on merits instead of dismissing the same for technical non-compliance of the provisions contained in Order 43, Rule 3, C.P.C. since miscarriage of justice has taken place, rendering the impugned order as illegal, therefore, the impugned order of learned 1st Additional District Judge, Karachi (South), is set aside. The case is remanded back to the learned First Additional District Judge, Karachi (South), for rehearing of miscellaneous appeal and decision on merits.
The revision application is allowed accordingly.