1991 PLP 563 (CLC)

Ss. 82 & 115

Constitution of Pakistan (1973), Art.25

Equality before law and equal protection of law

Provisions of S.82, Civil Procedure Code, 1908 required to be interpreted and applied liberally in view of principle of equality before law. All citizens are equal before law and are entitled to equal protection of law. The actions of the Government might consist of transactions which would be carried on by private individuals in which no element of exercise of sovereign powers was involved. Examples were transactions relating to trade, commerce or contracts. The present was a case of such a nature-hiring a house for a specific period. If in such a transaction decree had been passed against the Government, 15 days' time within the meaning of section 82 allowed to satisfy the decree, the same having not been satisfied and in spite of the full knowledge of the decree, more than one year having passed from the dismissal of the appeal (of the Government) (since 9-12-1989) the petitioner/judgment-debtor Government could not be given any allowance. In view of the principle of equality before the law, the provisions of section 82 of the Code require to be interpreted and applied liberally. (d) Interpretation of procedural provisions

Provisions of procedural law as to the technicality must be liberally interpreted. Mumtaz Ali Mirza for Petitioner. A house of Mrs. Khalid Nazir (hereinafter to be referred to as the decree-holder) was hired by the Ministry of Works, Government of Pakistan Islamabad. The decree-holder obtained a decree for possession of the house as the lease period had expired on 31-8-1985, from the Court of Senior Civil Judge, Islamabad, on 26-7-1989. The appeal filed by the judgment-debtor (through Secretary, Ministry of Works, the petitioner herein) was dismissed by the learned Addl. Distt. Judge on 9-12-1989.

2. The decree-holder riled application for execution of the decree on 23-9-1990. On 4-10-1990 the petitioner/judgment-debtor moved an application that no report having been made to the Provincial Government as required under section 82 of the Code of Civil Procedure, the execution could not issue. This was contested and dismissed by the learned Civil Judge/Executing Court vide order dated 6-10-1990. Appeal against the same was dismissed by the Addl. Distt. Judge, Islamabad, on 25-11-1990.

3. Sole ground urged is the non-compliance of the provisions of section 82 of the Code of Civil Procedure. For facility of reference, it is reproduced as under:-- "Execution of decree.--(l) Where the decree is against the Government or against a public officer in respect of any such act as aforesaid, a time shall be specified in the decree within which it shall be satisfied; and, if the decree is not satisfied within the time so specified, the Court shall report the case for the orders of the Provincial Government. (2) Execution shall not be issued on any such decree unless it remains unsatisfied for the period of three months computed from the date of such report." In subsection (1) there are two requirements, namely, (i) time shall be specified in the decree within which it shall be satisfied, and (ii) if the decree is not satisfied within the time so specified, "the Court shall report the case for the orders of the Provincial Government". Subsection (2) stipulates that execution shall not issue unless the decree remains the unsatisfied for the period of three months computed from the date of the report (to the Provincial Government). In the present case it is admitted that while passing the decree~ for possession, the Court had allowed 15 days time to the judgment-debtor to satisfy the decree. It was not satisfied within this specified time. Learned counsel for the appellant was not in a position to cite any case-law on the subject from the Supreme Court or the High Courts of our own country. He, however, referred to Jagarnath Prasad Singh v. State of Bihar (A I R 1961 Pat. 271). In this case the provisions of section 82 were very strictly applied. But with utmost respect I am not persuaded to adopt the principle laid down in the precedent case.

4. Sections 79 to 82 of the Code of Civil Procedure are procedural in nature. These do not create any substantive right or liability. The object of section 80 is to give time to the Government or the Public Officer, at the highest level to consider the matter involved, and in case the suit has already been instituted to determine whether to defend the same or to contest the claim. Section 82 of the Code is the further extension of this very principle. This object is to allow a final chance to the Government or the Public Officer concerned to satisfy the decree before the execution is ordered against it/him. In the present case 15 days time had been granted to the Government to satisfy the decree and admittedly it failed to do so. It had a right under the procedural technicality provided in section 82 of the Code to a period of three months further to consider about the satisfaction and it was only then that the execution could have issued (warrants of possession in the present case). Since the time application was moved by the Government (4-10-1990) much water has flowed down the bridges and yet to insist upon the compliance of the technicality would be nothing more than frustrating the decree for as long a time as possible. This cannot be allowed. The provisions of procedural law as to the technicality must be liberally interpreted.

5. There is another angle to look at the problem. Article 25 of the Constitution of Islamic Republic of Pakistan, 1973, gives the guideline. All citizens are equal before law and are entitled to equal protection of law. The actions of the Government may consist of transactions which may be carried on by private individuals in which no element of exercise of sovereign powers is involved. Examples can be, transactions relating to trade, commerce or contracts. The present is a case of such a nature-hiring a house for a specific period. If in such a transaction decree has been passed against the Government, 15 days time within the meaning of section 82 allowed to satisfy the decree, the same having not been satisfied and in spite of the full knowledge of the decree, more than one year having passed from the dismissal of the appeal (of the Government) (since 9-12-1989) the petitioner/judgment-debtor Government cannot be given any allowance. In view of the principle of equality before the law, the provisions of section 82 of the Code require to be interpreted and applied liberally.

6. For what has been discussed above, the Civil Revision is dismissed in limine, A.A./P-124/L?? ??????????????????????? ??????????????????????? ??????????? Revision dismissed.