1980CLC1892 (PLP)

5. It is contended by the learned counsel for the petitioners that striking off the defence under Order VIII, rule 12, C. P. C. is only discretionary and that as the trial Court had found that there was a sufficient Cause t-or the petitioners to have failed in tiling the list of legal representatives and their addresses, the learned Additional District Judge ought not to have interfered He further stated that the order of the learned Additional District judge, notionally transferring the file to his record and decreeing the suit without looking into the plaint and the written statement, was not valid. Reliance was placed on the are of Shamroz Khan and another v. Muhammad Amin and others (P L D 1978 S C 68).

6. As regards the order of transfer, the learned counsel referred to sec tion 24 of the C. P. C. as well as section 6 of the Civil Courts Ordinance, 1962 to- argue that the Additional District Judge could hear and decide only such cases as would be entrusted to him by the District Judge and that the order of transfer of a case to his file was against law. The learned counsel for the respondents relied on Mst. Nazir Begum and another v. Sheikh Abdul Rashid and another (P L D 1979 Lah. 546), Order VII, rules 23, 25 and 8(1), C. P. C.

7. In the case of Shamroz Khan the petitioner-plaintiff had applied on 29th September, 1974, when issues were framed, to say that as the respondents had failed to supply the addresses to the Court under Order Vill, rule 11, their defence be struck off under Order VIII, rule

12. The respondents immediately supplied the addresses and contested the application against them on the ground that the provisions of Order VIII, rule 11 were not mandatory. The trial Court held otherwise and also decreed the suit ex parte. The order of the trial Court was maintained by the District Judge to appeal but set aside in the revision before the High Court.

8. Their Lordships of the, Supreme Court upheld the order of the High Court in art elaborate judgment after comparing and interpreting the phrases `shall be liable to have his suit or his petition rejected shall be liable to have his defence, if any, struck off' in order VII, rule 21, Order VIII, rule 12 respectively and `shall be liable to pay a fine' as provided in various sections of the Penal Code. The findings of their Lordships may be reproduced below with advantage :-_ "After reviewing the entire case-law including judgments of the English Courts, the learned Judges of the Full Bench overruled the view taken in Muhammad Akbar's case and held that words 'shall be liable to a fine' did not make it incumbent upon the Courts to imposed a fine. Whilst we agree with the view of the Full Bench, we have referred to this judgment, because it is not disputed that it has been consistently followed thereafter by the Courts. Now when a Legislature uses in a Statute a legal term Which has received a judicial interpretation, it is to he presumed that the term. has been used in the sense in which it has been judicially interpreted, unless a contrary intention appears from the Statute. There is no intention to the contrary either in Order VII, rule 19 or in Order X11, rule S and further nothing runs do the fact that Karor's case related to the Penal Code whilst the said words are to be found in the Civil Procedure Code, Accordingly, on this ground also, we agree with the view taken by the High Court."

9. The situation in the case in hand was that the deficient written statement was filed on 12th January, 1977, while the objection was taken in the replication by the respondents on 10th February, 1977. The requisite documents were filed on 24th February, 1977, while the issues were framed on IIth March. Thus the record was complete before the framing of the issues and the provisions of law stood substantially complied with so as to let the matter be decided on me, it. The default was condoned by the trial Court in its discretion but the learned District Judge in the exercise of his power reversed the order for the reason that there was no material before the trial Court to pass its order.

10. Their Lordships of the Supreme Court in the above case held that the Order VIII is not a compulsive provisions and. o a Court is not bound to decree a suit in case of every default. The default in that case was similar to one in this case but the defect has been cured at an earlier stage in the present case. In this view of the matter, we shall be proceeding beyond the rule laid down in the above Supreme Court case if the petitioner are to be penalised for the default.

11. Again, the moment we come to the conclusion that the provision involved is not mandatory, then another principle comes into play. The object and purpose of every procedure is to see that disputes between the parties must be decided on their merit than thrown out on mere technicalities held in Imtiaz Ahmad v. Ghulam Ali and others (PLD1963SC383). The following obser vations can be reproduced with grant advantage :

"I must confess that having dealt with technicalities for more than forty years, out of which thirty years are at the Bar, I do not feel much impressed with there. I think the proper place of procedure in an system of administration of justice is to help and not to thwart the grant to the people of their rights. All technicalities have to be avoided unless it be essential to comply with them on grounds of public policy. The English system of administration of justice on which our own is based may be to a certain extent technical but we are not to take from that system its defects. Any system which by giving effect to the form and not to the substance defeats substantive rights is defective to that extent. The ideal must always be a system the gives to every person what is his."

12. Similarly in; Wali and others v. Manak and others (P L D 1965 S C 651), their Lordship held that: "Law favours adjudication on merits for a failure to so adjudicate mean a refusal to the parties of their rights and an adjudication will not be refused unless there exists some insuperable practical obstacle pre venting it." The impugned order, therefore, cannot be maintained for that reason also.

13. The next question raised was that the learned Additional District Judge could not interfere with the discretion exercised by the trial Court parti cularly when the same was meant to advance the purpose of law and cause of justice. I agree with the. learned counsel that in view of what bas been said above, this was not a case for interference. Reference be made to the rule laid down by the Supreme Court in the case of Muhammad Swaleh and another v. Messrs United Grain & Fodder Agencies (P L D 1964 S C 97) which is in the follow ing words :- "At the same time it should be stated that if there be jurisdiction in a Court to act the jurisdiction should be exercised if the failure, to exercise it will lead to injustice and there is no principle of public policy which forbids its exercise in the particular circumstances." A similar view was taken in Muhammad Umar Bag v. Sultan Muhammad Khan (P L D 1970 S C 139) and it will be useful to add the same also :- "It may also be pointed out, with all respect to the learned Single Judge, that he was exercising a limited jurisdiction in revision under sec tion 115 of the Civil Procedure Code which is meant primarily of correcting errors made by the Subordinate Courts in the exercise . of their jurisdiction and not those which are made in their discretion, unless the discretion is found to have been exercised fancifully or arbitrarily."

14. The next question is about the transfer of the case by the learned Additional District Judge to his file. Section 6 of the Civil Courts Ordinance, 1962 runs as under: "Additional District Judges.-(1) Government may, in consultation with the High Court, appoint as many Additional District Judges as may be necessary. (2) An Additional District Judge shall discharge such functions of a District Judge as the District Judge may assign to him, and in the discharge of those functions he shall exercise the same powers as the District Judge." According to it an Additional District Judge can handle and decide only1c such cases as have been assigned to him by the District Judge. In this case there was no assignment to him of any transfer application. Further, sec Lion 24, C. P. C. lays down that :- "General power of transfer and withdrawal.-(1) On the application of any of the parties and after notice to the parties and after hearing such of them as desire to be heard, or of its own motion without such notice, the High Court or the District Court may at any stage- (a) transfer any suit, appeal or other proceedings pending before it for trial or disposal to any Court. subordinate to it and competent to try to dispose of the same, or (6) withdraw any suit, appeal or other proceedings pending in any . Court subordinate to it, and (i) try or dispose of the same ; or (ii) transfer the same for trial or disposal to any Court subordinate to it and competent to try or disposed of the same ; or (iii) retransfer the same for trial or disposal to the Court from which it was withdrawn. (2) Where any suit or proceeding has been transferred or withdrawn under subsection (1), the Court which thereafter tries such suit may, subject to any special directions in the case of an order of transfer, either retry it or proceed from the point at which it was transferred or withdrawn. (3) For the purposes of this section, Courts of Additional and Assist ant Judges shall be deemed to be subordinate to the District Court. (4) The Court trying any suit transferred or withdrawn under this section from a Court of Small Causes shall, for the purposes of such suit, be deemed to be a Court of Sm4ll Causes." The impart of section 24(3) appears to be that a power to transfer is conferred only on the District judge as, for the purpose of this section, the Additional District Judge is a Court subordinate to the District Judge, The impugned order of transfer is, therefore, bad on these scores also.

15. The last question to be considered is about the power of the learned Additional District Judge to decree the suit just for the reason that the defence having been struck off and there being no one to defend a case must be decreed. Such a situation hid been considered by the Supreme Court in the above case of Shamroz .K6ian end it will be advantageous and timesaving to reproduce the rule laid down. The relevant portion is as under :- "In the instant case, however, the suit was decreed against the said respondents merely because their defence was struck off, therefore, on this ground also the suit was illegally decreed against the said respondents." In view of the above, this petition succeeds. The impugned order is set aside anal the case is sent beck to !he trial Court to proceed further and decide the same in accordance with law. M, Y. M. Petition accepted.