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Civil Revision No. 136 of 1982, decided on 31st May, 1983.

‑‑ O. XLIII, r. 3‑Failure to serve notice of appeal on respondent. Not a valid ground for dismissal of appeal‑Rationale behind pro vision of r. 3 of O. XLIII to achieve expeditious disposal of appeals against interlocutory orders and applications filed before appellate Court during pendency of appeal with purpose that opposite party may appear without being summoned through process of Court.

Mst. Saadat Parveen v. Hafiz Muhammad Rafiq etc. N L R 1981 C L J 656 rel. .

Nazir Ahmad v. King‑Emperor A I R 1936 P C 253 and Malik Abdul Aziz v. West Pakistan Publishing Company (Private) Ltd. P L D 1965 (W. P.) Lah. 82 ref.

‑‑ O. XLIII, r. 3‑Respondent appearing at time of admission of appeal though not served with notice thereof‑Technical non‑com pliance of r. 3, O. XLIII, held, occasioned no injustice‑Object behind all procedural laws, held further, to save permanent interest of justice and mere technicalities unless offering insurmountable hurdle cannot be allowed to defeat ends of justice.

Tariq Transport Company, Lahore v. The Sargodha‑Bhera Bus Service, Sargodba and others P L D 1958 S C (Pak.) 437 rel.

S. M. Masud for Petitioner.

Sardar Muhammad Akram for Respondent No. 2.

This revision petition arises out of the order, dated 27th January, 1982 of the learned Additional District Judge, Kasur, whereby the appeal filed by the petitioner against interim order passed during the pendency of the suit was dismissed for non‑compliance of the provisions of Order XLIII, rule 3, C. P. C.

2. The sole question involved in this petition is as to whether the provisions of rule 3 of Order XLIII which provide that 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 respon dent or his advocate by delivering a copy of the memorandum and grounds of appeal alongwith a copy of the order appealed against and obtain an acknowledgment of receipt thereof for the information of the Appellate Court, are mandatory.

3. Mr. S. M. Masood, learned counsel for the ‑ petitioner contends that the requirement of rule 3 of Order XLIII, Code of Civil Procedure stood complied with when the counsel for respondent No. 2 accepted notice and appeared before the appellate Court at the admission stage notwith standing the fact that no formal notice was sent to the respondent or his counsel. This contention finds support from Mst. Saadat Parveen v. Hafiz Muhammad Rafiq etc. (A I R 1936 P C 253) wherein it was hold that failure to serve notice as contemplated by Order XLIII, rule 3, C. P. C. does not by itself, in all circumstances, furnish a valid ground to re‑call an interim order passed during the pendency of an appeal.

4. Learned counsel for the respondent placed reliance on Nazar Ahmed v. King Emperor (1) and Malik Abdul Aziz v. West Pakistan Publishing Company (Private) Ltd. (P L D 1965 (W. P.) Lah. 82) to contend that where a power is given to do a certain thing in a certain way the thing must be done in that way and other methods of performance are necessarily forbidden.

5. I am inclined to agree with the submission of the learned counsel for the petitioner that in circumstances of this case, mere failure to serve notice of the appeal on the respondent would not by itself furnish a valid ground for dismissal of appeal. The rationale behind the provisions of rule 3 of Order XLIII is to achieve expeditious disposal of appeals against, interlocutory orders and applications filed before the appellate Court during the pendency of a suit. The provisions are somewhat pari materia with the caveat system prescribed under the Supreme Court rules. The purpose is that the opposite party may appear before a Court at the time of hearing of the 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 XLIII, rule 3 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 insure mountable hurdle cannot be allowed to defeat the ends of justice. Refer Manager, Jammu & Kashmir, State Property in Pakistan v. Khuda Yar and another (P L D 1975 S C 671). Reference may also be made to The Tariq Transport Company Lahore v. The Sargodha‑Bhera Bus Service, Sargodha and others (P L D 1951 S C (Pak.) 437) wherein it was held, "it is sound rule, recognised by almost all general codes of procedural law and absolutely essential for the preservation of all duly considered verdicts, that an omission or error in procedure unless it has occasioned a failure of justice or prejudiced a party in the presentation of his case is not a sufficient ground for reversing the decision".

In view of the above, the impugned order dated 27th January, 1982 of the learned Additional District Judge, Kasur, is set aside and the revision petition is accepted with no order as to costs. The result is that the appeal preferred by the petitioner against the order, dated 7th September, 1981 of the learned Senior Civil Judge, Kasur, is deemed to be pending and the same shall be disposed of justly, fairly and as expeditiously as possible.

M. Y. H. Petition allowed.

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