P L D 1964 (W (PLP)

ANWAR‑UL‑HAQ, J.‑--This order is intended to deal with certain preliminary objections raised by the learned counsel for respondent No. 1 to the maintainability of this revision petition, which is directed against an order of remand passed by Mr. Sher Bahadur Khan, Additional District Judge, Peshawar, directing the trial Court to decide certain issues in a suit between the parties, which had been left undecided by that Court, for the reason that the plaintiff‑respondent's suit was dismissed on a preliminary ground, named, the non‑registration of the partner ship firm. The order of remand was passed on the 9th of February 1963, and is specifically stated to be under rule 23 of Order XLI of the Code of Civil Procedure.

2. Mr. Pir Bakhsh Khan, the learned counsel for respon dent No. 1, contends as follows:‑ (a) That as the Impugned order in this case is an order of remand passed under rule 23 of Order XLI of the Code of Civil Procedure the proper remedy for the aggrieved party was by way of appeal under the provisions of clause (u) of rule 1 of Order XLIII, C. P. C., and not by way of a revision under section 115, C. P. C., (b) that even if the present revision petition be treated as an appeal, it would not be competent for the reason that it does not bear the necessary Court‑fee which amounts to Rs. 625, whereas the petitioner has only affixed Court‑fee in the sum of Rs. 15 on the revision petition, (c) that if the deficiency of Court‑fee is made good at this stage, the appeal would clearly be barred by time for the reason that the order of remand appealed against was passed on the 9th of February 1963. and there is no application under section 5 of the Limitation Act for the condonation of delay, (d) that the revision petition is also incompetent for the reason that it has been filed by Muhammad Shafi in his indivi dual capacity, whereas the suit was against the firm Ch. Karim Bakhsh Muhammed Shafi through Muhammad Shafi petitioner, and (e) that if the present revision petition is to be heard and determined as such, then it does not fall within the ambit of section 115, C. P. C., and should be dismissed for that reason.

3. The order which is being challenged by means of the present revision petition is an order of remand, which has clearly been stated by the learned Additional District Judge to have been passed under rule 23 of Order XLI, C. P. C. According to clause (u) of rule 1 of Order XLIII, C. P. C., an appeal shall lie from an order under rule 23 of Order XLI remanding a case where an appeal would lie from the decree of the appellate Court. It will be seen that in order to determine whether the order of remand passed in this case would fall within the purview of clause (u) just mentioned, we have to ascertain whether an appeal lay from the decree of the appellate Court.

4. By the Code of Civil Procedure (Amendment) Ordinance, 1962 (No. XLIV of 1962), promulgated by the President of Pakistan on the 7th of June 1962, section 100 of the Code of Civil Procedure was omitted and the scope of section 115, C. P. C., was enlarged. It was further directed; in subsection (4) of section 59 of the Ordinance, that "every appeal from an appellate decree pending before a Court immediately before the promulgation of this Ordinance shall be deemed to be an application for revision under section 115 of the said Code as amended by this Ordinance and shall be heard and as far as practicable determined accordingly". The effect of these amend ments was that on the day the order of remand was passed in this case by the lower appellate Court, no appeal lay from an appellate decree and only a revision petition could be filed to challenge such a decree. A further result clearly ensued from this position, namely, that the order of remand passed under rule 23 of Order XLI, C. P. C., by an appellate Court no longer remained appealable for the reason that the decree of the appel late Court could not be appealed against due to the omission of section 100 of the Code of Civil Procedure. Clause (u) of rule 1 of Order XLIII was not amended by Ordinance XLIV of 1962, so as to bring it in conformity with the other amendments introduced by this Ordinance, whether the omission to amend clause (u) in question was intentional or otherwise, it is not for us to say.

5. However, the position was subsequently altered by the Code of Civil Procedure (Amendment) Act, 1963 (No. III of 1963), enacted on the 4th of April 1963, which repealed major portion of Ordinance XLIV of 1962, with the result that section 100, along with several other provisions previously omitted, stood revived. By section 4 of the amending Act it was expressly made clear that "no amendment made in the Code of Civil Procedure, 1908 (Act V of 1908), by any provision of the said Ordinance which has been omitted or substituted by this Act shall continue; and the text of the relevant provisions of the Code shall stand revived as if it had never been amended or repealed by the said Ordinance". Again, in subsection (5) of section 5 of the Amending Act it was laid down that "every revision under section 115 of the Code pending before a Court immediately before the commencement of this Act shall be dealt with and disposed of either as a revision or as an appeal according as it be of the nature of revision or of an appeal under the provisions of the Code as revived by this Act". The effect of these legislative changes was that from the 4th of April 1963, an appeal once again lay from the decree of the appellate Court, and for that reason an appeal also became competent from an order of remand passed by an appellate Court.

6. Now, in the present case although the order of remand was made on the 9th of February 1963, yet the present revision petition was not instituted until the 18th of April 1963, i.e., B until after the enactment of amending Act III of 1963. It is clear that on that day an appeal should have been filed to challenge the order of remand under the provisions of clause (u) of rule 1 of Order XLIII, C. P. C. To this extent, therefore, the objection raised by Mr. Pir Bakhsh Khan, the learned counsel for respondent No. 1, is correct.

7. It is, however, clear that the present revision petition was filed under a bona fide mistake as to the legal position obtaining in this behalf. It was stated at the Bar that the amending Act of 1963, did not become available until the month of June c when it was reproduced in the relevant section of the All Pakistan Legal Decisions. It is interesting to observe that even Mr. Pir Bakhsh Khan himself filed a revision petition on the 9th of May 1963, to challenge the same order of remand. How ever, Mr. Pir Bakhsh Khan realised his mistake much earlier than the learned counsel for the present petitioner, as Mr. Pir Bakhsh Khan made an application in the month of June 1963, for converting his revision petition into an appeal. We consider that as the learned counsel for the present petitioner was acting under a bona fide mistake about the legal position, we would be justified in allowing the present revision petition to be treated as an appeal under clause (u) of rule 1 of Order XLIII, C. P. C.

8. Once this is done, the question of the payment of the proper Court‑fee arises. It is conceded by Mr. Muhammad Afzal Khan, the learned counsel for the petitioner, that the full Court‑fee amounting to Rs. 625 shall have to be paid before the appeal can be considered to be properly constituted. Although there is no formal written application for the condonation of delay under section 5 of the Limitation Act, yet the learned counsel for the petitioner has requested that the Court may exercise its discretion under section 149 of the Code of Civil Procedure and allow time to the petitioner/appellant to make good the deficiency in the amount of Court‑fee payable. This request is opposed by Mr. Pir Bakhsh Khan on the ground that there has been clear negligence on the part of the learned counsel for the petitioner/appellant as he took no steps to rectify the error even after coming to know of the amendment introduced by Act III of 1963, on the 4th of April 1963. Considering the circumstances of the case and the view we have already expressed, namely, that the mistake in this case was a D bona fide mistake of law, we are of the opinion that it is a case where the discretion vesting in us under section 149, C. P. C. should be exercised in favour of the petitioner. In this view we are fortified by the dictum of the Judicial Commissioner in Kala Ram v. Punjab National Bank Limited, Peshawar City (A I R 1937 Pesh. 3), and of their Lordships of the Full Bench in Jagat Ram v. Misar Khairati Ram and another (A I R 1938 Lah. 361). In the latter case it was observed that "the discretion conferred on the Court by section 149 is normally expected to be exercised in favour of the litigant except in cases of contumacy or positive mala fides or reasons of a similar kind. The question of bona fides in this connection should be construed in the sense that the word is used in the General Clauses Act and not as used in the Limitation Act". We would accordingly grant one. month's time to the petitioner to make good the deficiency in the Court‑fee, and if that is done, the present revision petition shall be treated as an appeal having been instituted on the 18th of April 1963, on which date it was clearly within time.

9. The next objection taken by Mr. Pir Bakhsh to the maintainability of the revision petition/appeal is that it has not been filed by a party to the suit. In the suit the plaintiff‑respondent had cited two defendants, namely, defendant No. 1 Ch. Karim Bakhsh Muhammad Shafi through Muhammad Shafi partner, and defendant No. 2 Ch. Din Muhammad Maula Bakhsh through Muhammad Ashiq partner. It is clear from the plaint that Mian Muhammad Shafi as an individual was not a party to the suit and, therefore, he is not competent to file a revision petition or appeal in his individual capacity. It was alleged by Mr. Pir Bakhsh Khan that this had been deliberately done so as to derive some benefit in the matter of the application of the provisions of the Partnership Act, which is one of the questions to be decided when the case is taken up by us on merits. However, it was frankly conceded by Mr. Muhammad Afzal Khan, the learned counsel for the petitioner/appellant, that it was not open to Mian Muhammad Shaft to bring this revision petition or appeal in his individual capacity, and that if the recital in the grounds of revision gives this impression it must be treated as a mis-description, and he should be allowed to correct the mistake. He further submitted that the firm Ch. Karim Bakhsh Muhammad Shaft has been sued through the present petitioner Mian Muhammad Shafi as a partner, and it is he who has been actively pursuing this litigation. Mr. Pir Bakhsh Khan contended that the mis-description was not merely of a technical nature but it went to the very root of the matter inasmuch as that Mian Muhammad Shaft as an individual was not at all competent to bring this revision petition/appeal.

10. We are of the view that the mis-description of the peti tioner (or appellant) in the present case is nothing more than a technicality for the reason that throughout the litigation in the two Courts below it was Mian Muhammad Shaft who had been acting for defendant No. 1, i.e., the firm Ch. Karim Bakhsh Muhammad Shaft, and even the plaintiff had sued this firm through Mian Muhammad Shafi partner. We cannot imagine how any benefit could accrue to the defendant‑firm with regard to the merits of the case, by bringing forward the present revision/appeal on behalf of Mian Muhammad Shafi alone as an individual. This is thus obviously, a case of a technical mis-description and no prejudice would be caused to the opposite‑party if we allow the petitioner to rectify the error by a clerical amendment of the relevant recital.

11. In view of the fact that we have decided to treat the present revision petition as an appeal, the last contention raised by Mr. Pir Bakhsh Khan that the present revision would not fall within the purview of section 115 of the Code of Civil Procedure no longer arises. It was, however, contended by Mr. Pir Bakhsh Khan that as the defendant‑firm Ch. Karim Bakhsh Muhammad Shafi would have full opportunity of fighting out its case on merits in the trial Court, to which the case has been remanded, we should refuse to allow the rectification of even formal or technical defects and should dismiss the revision petition summarily on account of those defects. We regret we cannot subscribe to this view for the reason that a party to a judicial proceeding is entitled to be heard on merits according to law, and that right should not be allowed to be defeated merely on account of mere technicalities or a bona fide mistake as to legal procedures, if such defects or mistakes are capable of rectification (which they clearly are) and are so rectified within the time allowed by the Court. The defendant in this case has a right to be heard not only by the trial Court, to which the case has been remanded, but also in the High Court in appeal as permitted by clause (u) of rule 1 of Order XLIII, C. P. C.

12. For the foregoing reasons, we overrule the preliminary objections except to the extent that the present revision petition shall be treated as an appeal and shall be numbered as such by the office. The learned counsel for the petitioner/appellant shall amend the heading so that the appeal shall be in the name of the defendant firm Ch. Karim Bakhsh Muhammad Shah and not on behalf of Muhammad Shafi in his individual capacity. The appellant shall further make good the deficiency in the Court‑fee within the period of one month from to‑day. If that is done, the appeal shall be fixed for hearing on merits. If, how ever, the petitioner/appellant fails to comply with our directions within the period of one month, mentioned above, the present revision petition/appeal shall stand automatically dismissed. K. B. A. Order accordingly.