1986 PLP 2951 (CLC)

6. Whereas on the other hand learned Advocate‑General has strenuously canvassed that provisions of Order VI11, Rule 10, C.P.C. have not been correctly construed by trial Court. He argued that neither discretion in law was properly exercised, nor evidence was recorded nor any reasons were given by trial Court, therefore, judgment dated 13‑7‑1985, is deemed to be a nullity in the eyes of law as such bar of limitation would not be operative. Reference in this behalf is made to the observations in cases Faqir Muhammad v. Mulla Mahmood PLD 1973 Quetta 1, Syed Mahmud Alam v. Syed Mehdi Hussain and others P L D 1970 Lab. 6 and Syed Nazir Hussain v Settlement Commissioner, Lyallpur P L D 1974 Lah.

434. In the same stream it was argued that service of summons on Deputy Commissioner Khuzdar was not proper, as he is not recognized agent of Provincial Government within the scope of section 79 or Order XXVII of C.P.C. Thus, all proceedings recorded in the matter recorded by trial Court age devoid of lawful authority. Reliance is placed on the observation in case Yousuf Ali v . Muhammad Aslam Zia and others P L D 1958 S C 104, Khuda Bakhsh v. Khushi Muhammad and others P L D 1976 S C 208 and Mansab Ali v. Amir and others P L D 1971 S C

124. It is also submitted that appellate Court has exercised discretion vested in it by law, in condoning the delay, therefore, same cannot be sought to be interfered with. Illegality committed by trial Court stands rectified by the impugned judgment. In the circumstances revisional jurisdiction cannot be invoked for perpetuating illegality merely for technical reasons. I have carefully examined the arguments advanced by learned counsel for parties. Perusal of trial Court's judgment dated 13‑7‑1985 manifestly indicates that learned Qazi merely expressed his intention to act under Order VII1, Rule 10, C.P.C. and without recording any further proceeding or assigning any reasons simply decreed the suit. In order to properly appreciate the contention raised in the matter it would be fair to reproduce Order VIII, Rule 10, C.P.C:‑ "

10. Procedure when party fails to present written statement called for by Court.‑‑Where any party from whom written statement is so required fails to present the same within the time fixed by Court, the Court may pronounce judgment against him or make, such order in relation to the suit as it thinks fit. " It may be seen that in the event of defendant's failure to file written statement within specified time the trial Court enjoys jurisdiction either to pronounce judgment or to make such order as it deems fit. In this matter it appears that Trial Court was inclined to pronounce judgment. But factually no comments on the merits of the case were at all made. Evidently without giving any reasoning or even indicating application of mind the suit has been decreed. Word "Decree" has been defined in section 2(2) of Civil Procedure Code, whereas procedure for passing judgment is explained in Order XX of C.P.C. Obviously for a proper judgment and decree there has to be formal expression of the Court conclusively determining matter in controversy which should be essentially based on sound judicial grounds in the light of available record. Principle of law decided by the Honourable Supreme Court, in case Shamroz Khan v. Muhammad Amin and others P L D 1978 S C 89 for interpreting identical provisions of Order IX, Rule 6, C.P.C. is on all force in the instant case: "This means that the Court may proceed ex parte and that it may. pass a decree without proceeding evidence. The word 'may' here imports discretion and means may, not shall, therefore, when a Court strikes off the defence of a defendant, it has further to decide it, the exercise of its discretion, whether it should decree the claim against the defendant after recording evidence or without recording evidence, and like all discretion vested in the Courts, this discretion must be exercised judicially. 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 respondent." In the light of aforesaid principle, the trial Court has acted, arbitrarily in exercising discretion for pronouncing judgment without recording further proceedings in the matter. Learned counsel for petitioner by relying on the observation in the case Sardar Shaukat‑ud‑Din v. Muhammad Iqbal and others P L D 1983 Lab. 448 emphasized that trial Court, straightaway passing judgment without recording any further proceedings has acted within the scope of law. There was however divergence of judicial opinion about object and manner of exercising jurisdiction under Order VIII, Rule 10, C.P.C. Earlier judgments reported in Nizul Khan and others v. Habibullah P L D 1980 Lab. 48 and Bilqis Begum v. Syed Ali Turab, and others 1980 C L C 930 have not approved passing of judgment without recording evidence. However, controversy in this behalf has been authoritatively elucidated by Division Bench of Lahore High Court in case Malik Muhammad Saeed v. Mian Muhammad Sadiq reported in 1985 M L D 1440. It is profitable to reproduce relevant observations:- "

15. After giving our anxious consideration to the matter in the above light, we are of the opinion that it is inherent in the very process of dispensation of justice that the judicial conscience of the Court must be satisfied about the genuineness of the case set up by the plaintiff approaching the civil Court in the proceedings for discovery of truth and in order to obviate chances of unscrupulous litigants getting away with illmerited judgments or decrees which would amount to negation of justice and defeat the very purpose of law. It follows that a judgment that is based on no evidence whatsoever on the merits of the case would be illegal. It cannot also be overlooked that there are no words to be found in Order VIII, Rule 10, C.P.C. doing away with absolute requirement of the Evidence Act. 16 ............................................................... 17. ...............................................................

18. We are also not oblivious of the principle that Courts favour adjudication on merits while construing the provisions under examination. Reference may be made to Manager Jammu and Kashmir State Property in Pakistan v. Khuda Yar and another PLD 1976 S C 159 and Imtiaz Ahmed v. Ghulam Ali PLD 1963 SC 382." I am in respectful agreement with dictim laid in the aforementioned report. Thus, unless the Court applies mind the fact and circumstances of the case and specific reasons for arriving at conclusions are given the decision cannot qualify to be judicial judgment. In this context reference can also be made to Oudh Court reported as Indian Case XII Vol.

215. Relevant portion is however, reproduced:- Nanhe v. Saiyad Tasadduq Hussain--212 "It is urged on behalf of the applicant that the Munsif acted with material irregularity because under Order VIII, Rule 10, he was only empowered to pronounce judgment against the defendant and in this case there is no judgment, but merely an order decreeing the plaintiff's claim. A judgment is defined in section 2(9) of the Code of the statement given by the Judge of the grounds of a decree or order. Therefore, the law contemplates that the Court should go into the case and pronounce a decision upon the facts so far as they are before it. If the learned Munsif had examined the plaintiff and considered the documents produced before him and written a decision stating that he believed the plaintiff's evidence that would have been a judgment within the meaning of Order VIII, Rule 10, but I cannot hold that the order of the Munsif in this case was a judgment, I am, therefore, of opinion, that there was a material irregularity. The learned Pleader for the respondent refers to the case of Kristanmma v. Chaps Naidu, where it is said that material irregularity, within the meaning of section 622 of the old Code of Civil Procedure, means, 'a perverse decision on a question of law or procedure, a decision being perverse where it is a conscious departure from some rule of law or procedure', and he contends that there is no departure from any rule of law or procedure in this case. I must assume that the learned Munsif knew what the meaning of a judgment is. A judgment certainly means some kind of decision upon the merits, but there is none in this case." Since in the instant case trial Court has announced the judgment dated 13-7-1984 without recording evidence or giving any reasons, as such decree, awarded in this matter is devoid of lawful sanction; same is accordingly declared to be defective, erroneous and in violation of law, as such of no effect. Admittedly there is delay in filing appeal before Majlis-i-Shoora. Normally respondent was supposed to explain each day's delay as also held in the cases relied upon by the petitioner. However, in this case as observed earlier, the judgment and decree passed by trial Court is clearly contrary to mandatory requirement of law, based on incorrect assumption of jurisdiction by deciding the matter without considering merits of the case; therefore, on the principle laid down in case Atta Muhammad Qureshi v . Settlement Commissioner, Lahore etc. P L D 1971 SC 61 same would be deemed as nullity. In such circumstances of the case objection regarding bar of limitation will have no legal sanction. In support of this aspect reliance may however be placed on the observation in cases. Hussain Bakhsh v. Settlement Commissioner and others P L D 1969 Lah. 1039, Abdus Salam Khan v. Salimuddin Ahmed Siddiqui and others P L D 1979 Lah. 85; Rahim Bakhsh and another v. Gul Muhammad and others P L D 1971 Lah. 746; Faqir Muhammad v. Mulla Mahmood P L D 1973 Quetta 1, Syed Nazir Hussain v. Settlement Commissioner Lyailpur and another P L D 1974 Lah. 434, Nawabzada Muhammad Umer Khan and others v. Pakistan through Secretary -Cabinet Division and others P L D 1982 Pesh.

1. It may be seen that application for condonation of delay in filing appeal was submitted by respondent before Majlis-i-Shoora. Undoubtedly appellate Court was competent to examine plausibility of condoning delay. In the circumstances discretion exercised by the appellate Court in condoning delay, cannot be lightly interfered with unless it can be shown on the basis of proved facts that the action in that behalf was fanciful, perverse, or arbitrary. If authority is needed reference can be made to decided cases, some of which are mentioned below: - (i) Jaanada Prosad Mukherji v. G.M. Falkner A I R 1930 Cal. 426. (ii) Avasarala Kamaraju v. Balls Saramma A I R 1942 Mad. 604. (iii) Shahzada Muhammad Umer Baig v. Sultan Mahmood Khan and others P L D 1970 S C 139. (iv) Umar Dad Khan and another v. Tila Muhammad Khan and others P L D 1970 S C 288. (v) Sardar and another v. Sultan and others P L D 1971 Lah. 690. (vi) Malik Khuda Bakhsh and others v. Syed Hamid Ali Shah 1981 SCMR 196. (vii) Mst. Fazal Begum v. Bahadur Khan and others P L D 1983 Lah.

365. The last contention, which has been emphatically argued relates to the scope of revision. It is now well-settled that jurisdiction under section15, C.P.C. is of discretionary nature. It cannot be exercised for correcting every irregularity or impropriety. It can be invoked only it is satisfactorily established that subordinate Court has exercised the jurisdiction not vested in it; or has failed to exercise the jurisdiction so vested in it; or has acted in exercise of its jurisdiction illegally or with material irregularity. The Revisional authority however cannot be H utilized in aid of injustice when factually substantial justice has been done in the matter. It may be mentioned that the impugned judgment of Majlis‑i‑Shoora, has set right, the wrong committed by trial Court, i.e. Qazi Khuzdar. In this case attempt is being made to take shelter on certain technicalities only. In fact impugned judgment has provided a fair opportunity to the parties to prove, their respective claims. Generally law favours adjudication of matters on merit, and this object is being achieved by impugned order. Thus, for the foregoing reasons, I am inclined to hold that petition is not maintainable, same is accordingly ordered to be dismissed. Parties are, however, left to bear their own costs. A . A .????????????????????????????????????????????????????????????????????????????????????????????????? Petition dismissed.