2002 PLP 54 (CLC)

Taffazul H. Rizvi for Petitioner. Malik Akhtar Hussain Awan, Addl. A.‑G. for Respondents. Brief facts out of which present writ petition arises are that the petitioner and respondent No.3 solemnized marriage and out of this wedlock, two children were born respondent No.3 filed an application before respondent No.2 for recovery against the petitioner which was accepted and a decree for the recovery of Rs.9,000 was passed against the petitioner. The petitioner being aggrieved, filed the revision petition before respondent No.1, who rejected the same vide order, dated 20‑10‑1994 on the ground that the petitioner failed to attach the certified copy of the decree of the impugned order alongwith revision petition.

2. The learned counsel of the petitioner submits that according the rule 20(2) of the Conciliation Rules, 1962, the petitioner had attached either the certified copy of order or decree with revision petition. He further submits that the provisions of Civil Procedure Court are not applicable to the proceedings arising under the Conciliation Courts Ordinance, 1961. This fact was overlooked by respondent No.

1. He further submits that judgment passed by respondent No.1 is distinguishable fact and law as the same is not arising out of the proceedings under the Conciliation Courts Ordinance, 1961. He further submits that the petitioner has non‑suited on technical ground.

3. Respondent No.3 had engaged Mr. Muhammad Aslam Rajpoot, Advocate, who had filed power of attorney on 19‑2‑1995. His name was also mentioned in the cause list, but he did not enter appearance despite repeated calls. In this view of the matter, I have no alternative except to pass the ex parte order against the respondent No.3.

4. Malik Akhtar Hussain Awan, Additional Advocate‑General submits that the writ petition is liable to be dismissed as substantial justice has been done between the parties. He further submits that respondent No.3 did not get single penny on the basis of decree as operation of the impugned decree and order stayed by this Court vide order dated, 9‑1‑1995. He further urged that the learned counsel of the petitioner failed to point out any illegality or infirmity in the impugned order of respondent No.

1. He further urged that provisions of Civil Procedure Code are applicable to the proceedings arising under the Conciliation Courts Ordinance, 1961.

5. I have given my anxious consideration to the contention of the learned counsel of the parties and perused the record myself.

6. The provisions of Evidence Act or Qanun‑e‑Shahadat and C.P.C. are not applicable to the proceedings arising before the Conciliation) Courts by virtue of section 15(1) of the Conciliation Courts Ordinance, 1961. According to rule 16, of the Punjab. Conciliation Courts Rules, 1982 or rule 20(2) of the Conciliation Courts Rules, 1962, it is duty cast upon the petitioner to attach certified copy of the decree or order with revision petition. It is better and appropriate to reproduce sub‑rule (2) to resolve the controversy between the parties:‑ "A copy of the decree or order passed by the Conciliation Court certified under the hand of the Chairman of Conciliation Court shall also be attached to the application." The use of word "or" signifies a disjunctive sense and it cannot be read as "and" unless of course the context provides so. In this regard it may be pertinent to quote the following passages from Maxwell on the Interpretation of Statutes, 12th Edition at pages 232 and 233 and from Crawford on Statutory Construction, 1940 Edition at pages 322 and 323:‑‑ "Passage from the Maxwell on the Interpretation of Statutes, 12th Edition‑‑‑`And' and `or'. In Ordinary usage, `and" is conjunctive and `or' disjunctive. But to carry out the intention of the legislature it may be necessary to read `and' in place of the conjunction `or' and vice versa'. Passage from the Crawford on Statutory Construction: ' 188 Disjunctive and conjunctive words‑In ordinary use the word `or' is a disjunctive that marks an alternative which generally corresponds to the word `either'. In face of this meaning, however, the word `or' and the word `and' are often used interchangeably. As a result of this common and careless use of the two words in legislation, there are occasions when the Court, through construction, may change one to the other. This cannot be done if the statute's meaning is clear, or if the alteration operates to change the meaning of the law. It is proper only in order to more accurately express, or to carry out the obvious intent of the legislature, when the statute itself furnishes cogent proof of the error of the legislature, and especially where it will avoid absurd or impossible consequences, or operate to harmonize the statute and give effect to all of its provisions." From the above‑quoted passages from the above celebrated treatises on the Interpretation of Statutes, it is evident that the words "and" and "or" are interchangeable. However, in ordinary usage the word "and" is conjunctive and the word "or" is disjunctive. But to implement the legislative intent, it may become imperative to read "and" in place of the conjunction "or" and vice versa. This cannot be done if the meaning of the relevant provision of the statute is clear or if the above construction will operate to change the meaning of the law.

7. The reference can also be made to following pronouncements of the Superior Courts:‑‑ Muhammad Sanaullah v. Allah Din 1993 MLD 399 (Karachi), Ebrahim Brothers Ltd. v. Wealth Tax Officer, Circle III, Karachi and another PLD 1985 Kar. 407, Abdul Qadir and others v. Seth Byramji D. Mama PLD 1963 (W.P.) Kar.

300. The judgment relied by the Revisional Court is distinguishable on facts and law as the same was based on provision of C.P.C.; whereas in the present case, the provisions of C.P.C. are not applicable by virtue of section 15(1) of the Conciliation Courts Ordinance, 1961.

8. In view of aforesaid discussion, the word "or" used in the aforesaid rule, clearly reveals the intention of the rule‑making authority, that either certified copy of the decree or order passed by the Conciliation Courts, be filed alongwith memorandum of the revision, the word "or" is used by the law‑making authority, in the sense of disjunctive. In the present case, certified copy of the order was attached with the memorandum of the revision petition before respondent No. 1, therefore, the revision petition was filed properly in the terms of the aforesaid rule before respondent No.

1. The Honourable Supreme Court insisted that the cases must be decided on merits instead of technicalities as per principle laid down by the Honourable Supreme Court in Manager Jammu and Kashmir State Property in Pakistan v. Khuda Yar and another PLD 1975 SC

678. The relevant observation is as follows:‑‑ "Mere technicalities unless offering insurmountable hurdles should not be allowed to defeat ends of justice."

9. In view of what has been discussed above, this writ petition is accepted with no order as to costs. Meaning thereby the revision petition filed by the petitioner before respondent No.1 shall be deemed to be pending adjudication. The respondent No.1 is directed to decide the revision petition of the petitioner on merits after notice to respondent No.3 within two months. The petitioner is directed to appear before respondent No.1 on 1‑10‑2001. With these observations, the writ petition is disposed of. H.B.T./M‑786/L Petition accepted.