' MUHAMMAD AMEER BHATTI, J.--- This Civil Revision is directed against the order dated 28-4-2009 passed by the learned First Appellate Court, whereby while setting aside the judgment and decree dated 11-6-2007 passed by the learned trial Court, remanded the case on short and technical ground that the evidence of the witnesses in the respective suit was recorded by the Reader of the Court without there being any certificate as required under the law.
2. The contention of the learned counsel for the petitioner while relying on (1990 MLD 588 Lahore)
Bahadur All v. Syed Ghulam Sabir Gilani is that since no prejudice has been caused to the parties by recording the evidence by the Reader of the court and if any provision of law has been overlooked by the learned trial court by not giving its note on the said evidence or in the interim order the trial cannot be vitiated. Further contends that the evidence has been recorded by the Reader of the court in the presence of the learned counsel for the parties under the supervision of the learned Judge, apart from the absence of his note, the objection has neither been raised at the time of recording of the evidence nor this ground has been taken in the grounds of appeal.
However, objection has been pointed out during the pendency of the appeal after about eighteen months by filing an application under section 15r, C.P.C., hence at this stage the remand of the case for recording of the evidence is not justifiable. Therefore, this petition may be accepted and the direction may be issued for the decision of the appeal on merits.
3. On the other hand, learned counsel for the respondents contends that the provisions of Order XVIII, Rules 8 and 14, C.P.C. Have been grossly violated while recording the evidence of the parties which illegality is not curable and the evidence recorded by the learned trial court cannot be considered as evidence in the eye of law. Reliance- has been placed on (PLD 2008 Lahore 4)
Ghulam Mustafa and others v. Abdul Malik.
4. I have considered the arguments of the learned counsel for the parties and gone through the record of the case as well as the judgments referred by both the learned counsel.
5. The paramount point to ponder is that whether any prejudice has been caused to any party due to the irregularity committed by the learned trial court nor it is a case of any party about the inaccuracy of the record, hence in absence of this insignificant ingredient i,e, the omission on the part of the learned trial court cannot be termed as an illegality. Moreover, by committing this omission no prejudice was caused to any of the party, hence at this belated stage it will not be appropriate to repeat the exercise for recording of the evidence of the parties so as to provide the opportunity to fill up the lacunas of the case. I am fully in agreement with the law laid down in a case reported as (1990 MLD 588 Lahore) Bahadur All v. Syed Ghulam Sabir Guilani where after keeping in view all the available judgments and the relevant provisions of law, the learned Judge has held 'as follows:-- "11. Reverting to the legal objection that the prescriptions in rules 8 and 14 of Order XVIII of the Code of Civil Procedure are compulstive, it will be appropriate to notice the relevant rules. These rules are as under:--- ' Rule 8: Memorandum when evidence not taken down by Judge.--- Where the evidence is not taken down in writing by the Judge, he shall be bound, as the examination of each witness proceeds, to make a memorandum of the substance of what each witness deposes, and such memorandum shall be written and signed by the Judge and shall form part of the record.
' Rule 14: Judge unable to make such memorandum to record reasons of his inability.--- (1) Where the Judge is unable to make a memorandum as required by this Order, he shall cause the reasons of such inability to be recorded, and shall cause the memorandum to be made in writing from his dictation in' open Court.
(2-) Every memorandum so made shall form part of the record.
12. It is a well-settled principle of law that no hard and fast rules can be laid down for construing a provision as mandatory or a directory. The use of words "shall" or "may" are not sure test for such determination. The object of the relevant provision has to be taken into consideration after the examination of the whole of the statute in which these provisions are embodied.
13. The object of the Procedural Law is to help and not to hinder the grant to the peoples of their rights. All the technicalities have to be avoided unless they are essential to comply with them on the ground of public policy. Any system, which gives effect to form and not to substance defeats the substantive right and is not conducive to the object of dispensation of justice. This principle was enunciated in Imtiaz Ahmad v. Ch. Khushi Muhammad S.D.O. (Canal), Gojra District Lyallpur and the District Election Officer, Lyallpur PLD 1963 SC 382.
14. It will be appropriate to examine certain precedents in which the effect of non-compliance of rules 8 and 14 has been considered.
' This proposition came up for consideration in Promode Nath Sinha Roy and others v. Harishee Bagdhi AIR 1929 Calcutta 78. While considering the effect of non-compliance of the aforenoted rules, it was laid down that the non-compliance with the aforenoted rules in absence of any allegation of prejudice was not of invalidating nature. The relevant observations are as follows:--- "But there was only one record of the evidence, and that was not taken down in writing by the Judge himself, and no memorandum was, made or caused to be made by the Judge. The provisions of Order XVIII, Rr.5, 8 and 14, therefore, were not complied with. In my opinion, however, the recording of the evidence in the manner followed in the present case was not an illegality that rendered the decree based upon it null and void, but amounted merely to an irregularity; for Closter Jute Manufacturing Co. v. Chandra Kumar Das (1919) 46 Cal. 979, Queen Empress v. Gopal Goundan (1896) 19 Mad. 269)".
15. In Calcutta case reported. As Fort Closter Jute Manufacturing Co. v. Chandra Kumar Das and another 51 Indian Cases 405 a Division Bench considering the effect of non-compliance with rules 1, 2 and 3 of Order XX of the Code of Civil procedure came to the conclusion that the non- compliance with the requirement of the aforenoted rules never amounted to nullification of the proceedings.
' It was observed as follows:--- "The determination of this point must depend upon the "nature of the rules which have been infringed; if the act of the Court was without jurisdiction or infringed a rule prescribed on grounds of public policy, the proceeding became a nullity; if it was, on the jurisdiction, a contravention of rules framed by the Legislature with a view to afford protection to the individual litigant, he might clearly waive the benefit thereof and could not be entitled to obtain a reversal of the decree except on proof that the merits had been affected (section 99, Civil Procedure Code). The mere fact that the Court had acted in a manner contrary to that prescribed by the Code does not necessarily show that what was done was a nullity: Ashutosh Sikdar v. Behari Lal Kirtania (35 C 61), the effect depends upon the nature, scope and object of the particular provision which has been violated. As pointed out in Macnamara on Nullities and Irregularities, though no hard and fast line of demarcation can be drawn, an irregularity is a deviation from a rule of law which does not take away the foundation or authority for the proceeding or apply to its whole operation, whereas a nullity is as proceeding that is taken without any foundation for it or is so essentially defective as to be of no avail or effect whatever, or is void and incapable of validation. See the observation of Coleridge, J, in Holmes v. Russel (1841-9 Dowl. 487) and of Taunton, J. In Garrat v. Hooper (1831) - 1 Dow1.28). If we test the case before us in the light of these principles, what is the position. As explained in Sukh Lal Sheikh v. Tara Chand Ta (33 C.68), jurisdiction, which is the power of a Court to hear and determine a cause, to adjudicate or exercise judicial power in relation thereto, divides itself under three heads; with reference to (a) the subject-matter, (b) the parties, and (c) the particular question which calls for decision. The substance of the matter then is that here the Court had jurisdiction to try the controversy between the parties, but acted, in the exercise of its undoubted jurisdiction, in a mode contrary to that prescribed by Statute. Non-compliance with every rule of procedure does not, however, necessarily destroy the validity of the whole proceeding.
We must accordingly examine the purpose of the rules which have been infringed. The object of the Legislature seems to have been two-fold, namely, (a) that the contending parties should be speedily and publicly apprise of the decision of the Court, and (b) that the Court should have an opportunity for immediate re-consideration on the representation of the parties, which, after the judgment has been signed, can be done only on a formal application for review (section 114) or for amendment (section 152). The provisions of the law relating to the delivery of judgments may consequently be deemed to have been framed for the benefit of the parties litigant, and their contravention is an irregularity curable by consent or waiver. This is clearly not a case of lack of inherent jurisdiction, where the maxim applies that consent cannot give jurisdiction, Golab Sao v.
Chowdhury Madho. Lal (2 C. L.H.384), Gurdeo Singh v. Chandrika Singh (1 Ind. Cas.913). Nor is this a case of a mandatory provision of law, the infringement whereof nullifies the entire proceedings: Ashutosh Sikdar v. Behari Lal Kirlania (35 C 61), Liverpool Borough Bank v. Turner (1960-2 Deg F&J 502). In the case before us, when the judgment prepared by Mr. Ghose was about to be pronounced by Mr. Mookerjee, no objection appears to have been taken by either party; if objection had been taken, the delivery of the judgment might and would in all probability have been postponed till Mr. Gose could return to headquarters. Finally, there is no suggestion that the appellant has been prejudiced in any manner by the failure of the Court to pronounce judgment in conformity with the rules."
16. The same principle was highlighted in Elahi Baksha Kazi v. Emperor (45 Indian Cases 258 - Calcutta case) while considering the effect of non-compliance of rule 5 of Order 18 of the Code of Civil Procedure, the Court laid down that the rule was not of a mandatory character.
6. So far as the judgment referred by the learned counsel for the respondents is concerned, some facts contained therein are distinguishable which are not helpful for this purpose. Even otherwise, this judgment has been rendered without considering the earlier judgment passed by this Court which is based on the exhaustive discussion of law passed after considering all the available precedents of Indo-Pak. Hence I am clear in my mind that objection rooted in technicality itself failed and is accordingly repacked. No other point has been taken into consideration by the learned First Appellate Court.
7. Even otherwise, this. Court is of considered view that unnecessary technicalities should not be allowed to deter the due process of law on trifling grounds, particularly where no prejudice is likely to be caused to any litigant, meaning thereby, the procedural environment must be made conducive to facilitate the flow of the stream of justice.
8. Consequently, this petition is allowed and the order dated 28-4-2009 passed by the learned First Appellate Court is set aside. The appeal of the respondents shall be deemed to be pending before the lower Appellate Court. The parties are directed to appear before the learned District Judge on 8-2-2012, who shall take up this matter either himself or entrust it to any Additional District Judge for its decision on merits strictly in accordance with law, needless to say within the period of four months from this order. No order as to costs.