P D 1997 Lahore 728 (PLP)

A suit for declaration was filed by the respondent in the Court of Civil Judge, Sahiwal in respect of land measuring 20 Kanals and 13 Marlas which was decreed by judgment and decree dated 4-2-1988 passed by the Civil Judge, Sahiwal. The petitioners filed an appeal which was dismissed for non prosecution on 2-3-1991 by the Additional District Judge, Sahilval.

2. Learned counsel for the petitioners has submitted that the parties had arrived at a compromise out of the Court and the petitioners did not feel the necessity of attending the Court. As a consideration for compromise the petitioners paid Rs.1,22,000 to the respondent and for the remaining amount of Rs.28,000 a cheque was issued by surety Muhammad Akram in favour of the respondent which cheque was also encashed. The compromise deed is found as Annexure ' A' to the civil revision. Notwithstanding the compromise the respondent filed execution application before the learned civil Court on 22-4-1992 which was objected to by the petitioners in writing on 21-5-1992. By order dated 27-5-1992 the Civil Judge dismissed the objection petition which order was appealed against but the appeal was dismissed on 9-2-1995. Hence this revision petition against the order passed by the Additional District Judge.

3. Learned counsel for the petitioners has pressed into service the provisions of section 47 of the Civil Procedure Code in which it has been laid down that the objections are required to be decided by framing of issues. The learned Civil Judge as well as the learned Additional District Judge, according to the learned counsel were required to decide the objections on the basis of framing of issues and allowing the parties to lead their evidence.

4. On the other hand, the learned counsel for the respondent lady has maintained the validity of the orders passed by both the lower Courts which are concurrent findings. Learned counsel relies on Order XXI, Rule 2, Civil Procedure Code in which it is required that compromise in the suit made out of Court should be certified by the executing Court. which has not been done by the executing Court. He also finds support in Muhammad Ishak Ali v. Hiralal Seraogi PLD 1964 Dacca 637 according to which the learned Civil Judge was required to be informed within 90 days of the compromise.

5. I have heard the learned counsel for both the parties. I find that the requirements of section 47, C.P.C have not been satisfied by the learned Civil Judge as well as by the learned Additional District Judge in this case. Whatever may be the pleas as regards the factual as well as legal sides of the petitioners and the respondent the same were required to be ascertained and adjudicated upon by framing of issues and recording of evidence of the parties. The intention of law appears to be to do substantial justice between the. parties and not to go by mere technicalities of procedure. The period of 90 days for informing the Court in my opinion is directory provision and not a mandatory provision as no consequences are to follow in case of such failure. The law does envisage a distinction between directory provisions and mandatory provisions as laid down in Mukhtar Hussain Shah v. Waseem Sajjad PLD 1986 Supreme Court

178. In the case of Imtiaz Ahmad v. Ghulam Ali PLD 1963 Supreme Court 382 and Manager, Jammu and Kashmir State Property in Pakistan v. Khuda Yar and another PLD 1975 SC 678) the Supreme Court has laid down that Civil Courts of this country have to keep in view the substantive rights of the parties and not to go by mere technicalities of procedure. The Courts below were required to keep in view the object and intention with which section 47, C.P.C. was enacted. The perfunctory approach of the subordinate Courts is not countenanced by the letter of but without spirit of the law. In this view of the matter I accept the civil revision, set aside the impugned orders passed by both the Courts below and remit the case to the learned Civil Judge, Sahiwal who shall dispose of the objections of the petitioners in accordance with law by franung proper issues and by allowing a reasonable opportunity to both the parties to - produce their evidence in support of their pleas. Both the parties are directed to appear before the Senior Civil Judge, Sahiwal on 17-3-1997 and the matter is to be decided before the summer vacation. No order as to costs. C.M.S./M-398/1 Revision accepted