2022 PLP 1203 (MLD)

AHMAD NADEEM ARSHAD, J.

Through this petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioners have called into question the validity, legality, and propriety of the orders passed by learned lower courts whereby an application for preparation/drawing up the decree sheet was concurrently declined.

2. The petitioners/plaintiffs instituted a suit for specific performance of the contract, during the pendency of the suit, a compromise was effected between the parties and respondent/ defendant while recording his statement, admitted the execution of the agreement to sell and receiving of an amount of Rs.9,46,000/- as earnest money. The remaining consideration amount of Rs.84,000/- was received on 18.11.2000 at the time of recording his statement before the learned trial court in the presence of his counsel. In the light of that compromise, the learned trial court decreed the suit vide judgment dated 18.11.2000 but inadvertently failed to draw the decree sheet. The petitioners moved an application for preparation of decree sheet on 10.07.2007, which was dismissed by the learned trial court vide impugned order dated 25.10.2008 mainly on the ground that they have moved the said application after a lapse of six years and no logical reason has been advanced by them for such a delay. Against that order, three revision petitions were filed. Learned Revisional Court disposed of all the three revision petitions on the ground that as the respondent/defendant has challenged the compromise statement and consent judgment dated 18.11.2000, by filing an application under section 12(2), C.P.C., therefore, before the conclusion of that application and knowing its fate, the revision petitions could not be decided and disposed of the revision petitions while observing that the revision petitions would be decided in the light of the decision of the application under section 12(2), C.P.C. Feeling aggrieved, the petitioners/plaintiffs filed the instant writ petition.

3. Learned counsel for the petitioners states that the suit was decided on the basis of compromise and it was the duty of the court to prepare and draw the decree sheet. He adds that no person should suffer by the act of court and the act of court should not prejudice anyone.

4. No one appeared on behalf of respondent No.1 Muhammad Usman. M/s Ch. Abdul Sattar Gujjar and Ch. Shafaat Advocates filed power of attorney on 30.07.2009 on behalf of the respondent Muhammad Usman. After the demise of said respondent No.1, his legal heirs were impleaded as a party, and on behalf of his legal heirs, Ch. Muhammad Afzal Javed and Rana Aurangzeb Khan Advocates filed power of attorney on 17.01.2018. Lastly, on behalf of the legal heirs of respondent No.1, Ch. Zafar Ullah Warriach Advocate has submitted power of attorney on 17.04.2018. Despite sufficient intimation as the names of the learned counsels appeared in the cause list, no one appeared on behalf of the legal heirs of respondent No.1, therefore, they have proceeded against ex-parte.

5. Admittedly the suit for specific performance was decreed by the learned trial court vide judgment dated 18.11.2000 on the basis of compromise. Court has to draw up a decree sheet and no limitation has been provided for drawing up such a decree sheet. It is a settled proposition of law that no person shall suffer for the act or omission or neglect of the court, or its officials, and the act of court shall not prejudice anyone. Reliance is placed upon "Muhammad Ijaz and another v. Muhammad Shafi and another" (2016 SCMR 834), relevant para is as under "There is a well-known maxim "Actus Curiae Neminem Gravabit" (an act of the court shall prejudice no man) thus, where any court is found to have not complied with the mandatory provision of law or omitted to pass an order, required by law in the prescribed manner then, the litigants/parties cannot be taxed, much less penalized for the act or omission of the court. The fault in such cases does lie with the court and not with the litigants and no litigant should suffer on that account unless he/they are contumaciously negligent and have deliberately not complied with a mandatory provision of law". Further reliance is placed upon "Mian Muhammad Talha Adil v. Mian Muhammad Lutfi" (2005 SCMR 720).

6. It is not a part of the duty of a litigant to remind the court or its office about its obligation to draw up a decree after the judgment is announced in any suit. No one can deny that it was the duty of the Court to prepare and complete the decree sheet in line with its judgment. If it fails to perform its duty, was it fair to punish a party for default of the Court. In this regard, reliance can be placed upon "Jagat Dish Bhargava, Appellant v. Jawahar Lal Bhargava and others, Respondents" (AIR 1961 Supreme Court 832). For ready reference, the relevant paragraph is reproduced as under:- "Then it was argued that the respondents should have moved the trial Court for the drawing up of a decree as soon as they found that no decree had been drawn up. It may be assumed that the respondents might have adopted this course; but where the dual system does not exist it would be idle to contend that it is a part of the duty of a litigant to remind the Court or its office about its obligation to draw up a decree after the judgment is pronounced in any suit. It may be that decrees when drawn up are shown to the lawyers of the parties; but essentially drawing up of the decree is the function of the Court and its office, and it would be unreasonable to penalize a party for the default of the office by suggesting that it was necessary that the party should have moved the Court for the drawing up of the decree. Therefore, we are not satisfied that the appellant is justified in attributing to the respondents any default for which the penalty of dismissing their appeal can be legitimately imposed on them." This Court while dealing with a similar type of situation declared that the court needed to draw up a decree sheet and the omission or neglect on the part of the court in the performance of its statutory duties cannot be taken as a ground for penalizing the party. In this regard, reliance is placed upon "Ghulam Rasool v. Deputy Director, Military Lands and Cantonment Board and 2 others" (1982 CLC 550) and "Mst. Mumtaz Begum v. Said Zaman and 11 others" (1993 CLC 1202). Furthermore, no time limit having been provided under Order XX, Rule 7 of the C.P.C. for preparation or signing of a decree after the pronouncement of a judgment, as it prescribes duty that the formal decree made out in a case should bear the date of judgment. However, the preparation of a decree is a ministerial act, the date of the signing of the decree remains uncertain. The august Supreme Court of Pakistan observed that limitation under Article 156 for filing an appeal runs from the signing of the decree and period elapsing between announcing of judgment and signing of decree to be accommodated. Reliance is placed upon "(1) The Government of West Pakistan, through The Chief Secretary, Lahore, (2) The project Director, Guddu Barrage WAPDA, Sukkur, (3) The Superintending Engineer, Duddu Mechanical Circle, Sukkur Now at Keshmore, (4) The Executive Engineer, Field Division, Keshmore and (5) The Sub-Divisional Officer, Transport sub-Division, Keshmore v. Niaz Muhammad" (PLD 1967 Supreme Court 271). For ready reference, the relevant paragraph is reproduced as under:- "The conclusions reached above are unaffected by the fact that Order XX, Rule 7, C.P.C., requires that the decree should bear the same date as the judgment. That provision renders the formal expression of the adjudication effective, as between the construed so as to enhance the burden expressly imposed on the litigant by Order XLI, Rule 1, C.P.C., read with Article 156 aforesaid, in respect of the exercise of the right of appeal. Where there is delay in signing of the decree, that would ordinarily be accommodated in the period requisite for obtaining a copy of the decree, even if notionally, the date of signing of the decree is related back to the date of the judgment, for purposes of limitation. But the time would still run from the date of signing of the decree, under Article 156." Reliance can also be placed upon "Fariduddin v. Essa Muhammad" (1990 ALD 632).

7. Mere technicalities cannot defeat the rights of any person, although certain technicalities of law, where right is vested in the opposite party by efflux of time or where public policy demands so, may become relevant, however, the same cannot be given any preference by defeating the ends of justice, depriving a party of substantive rights, which accrued to it under the law and principle of justice. In this regard, the Supreme Court of Pakistan in the case titled "Imtiaz Ahmad v. (1) Ghulam Ali, (2) Ch. Khushi Muhammad, S.D.O. (Canal) Gojra, Layallpur District and (3) District Election Officer, Layallpur." (PLD 1963 Supreme Court 382) held as under: - "I think the proper place of procedure in any 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 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 that gives to every person what is his."

8. The other limb of this litigation also concluded as respondent No.1 filed an application under section 12(2), C.P.C. for setting aside the judgment dated 18.11.2000, which was dismissed by the learned trial court vide order dated 05.04.2010. Thereafter he filed a revision petition, which also met the same fate and was dismissed by the learned Revisional Court vide order dated 19.03.2011. Against both the orders, he filed Writ Petition No.15179 of 2011 titled "Muhammad Usman v. Addl: District Judge and others", which has been dismissed by this Court today.

9. In the light of what has been discussed above, this writ petition is allowed and the impugned orders/judgments dated 25.10.2008 and 20.05.2009 passed by the learned courts below are set aside. Resultantly the application filed by the petitioners/plaintiffs for preparation/drawing up a decree sheet in the judgment dated 18.11.2000 shall be deemed to have been allowed and learned trial court is directed to prepare/draw up the decree sheet in accordance with the judgment dated 18.11.2000. ZH/A-104/L Application allowed.