Kh. Muhammad Nasim, J. The captioned appeal by leave of the Court has been filed against the judgment passed by the Azad Jammu and Kashmir High Court on 06.12.2022, in Civil Appeal No. 164/2018.
The facts forming the background of the titled appeal are that the plaintiff-appellant, herein, filed a suit for declaration-cum-permanent injunction in respect of the land comprising khewat No. 35, survey No. 28 min, (old) 272, 273 (new), measuring 02 kanal, 06 marla, khewat No. 18/16, survey No. 35 (old), 251/1, 252 & 253 (new), measuring 02 kanal, 06 marla, survey No. 253 measuring 02 kanal, 02 marla, khewat No. 9, survey No. 37 (old), 251 (new), measuring 02 kanal 07 marla, total measuring 09 kanal, 01 marla, situated at Mozia Namli Dullai, Tehsil and District Muzaffarabad, against the defendants-respondents, herein, in the Court of Civil Judge, Court No. 04, Muzaffarabad. The defendants filed an application under Order VII, Rule 11, C.P.C, for rejection of the plaint. The learned trial Court after hearing the parties, rejected the plaint to the extent of land comprising survey Nos.272 & 273, under Order VII, Rule 11, C.P.C, vide judgment and decree dated 20.03.2017. The memorandum of the appeal against the order of rejection of the plaint was rejected under Order XLI, Rule 3 C.P.C. by the learned Additional District Judge Muzaffarabad, vide order dated 25.05.2018, on the ground that the appeal was incompetent because the same was filed against the judgment/decision of the trial Court, whereas, under Section 96 C.P.C, it was mandatory to challenge the decree. Against the said order, an appeal was filed before the High Court which was also dismissed and the orders of the Courts below were upheld, vide impugned judgment dated 06.12.2022, which is the subject matter of the captioned appeal.
3. Syed Riaz Hussain Naqvi, Advocate, the learned counsel for the petitioner stated that the judgments of the Courts below are erroneous, illegal and against the principle of natural justice, hence, are not sustainable in the eye of law. He further stated that the learned High Court has dismissed the appeal on the ground that the appellant, herein, preferred appeal against the judgment/decision of the trial Court and not against the decree, while, the certified copy of the decree dated 20.03.2017, was already appended with the memo of appeal and challenging the decree separately was not required under law. The only mistake made by the appellant is that he used the word judgment instead of the word decree while challenging the same. Even otherwise, if the Court had reached the opinion that decree is necessary to be challenged, even then, the first appellate Court was empowered under Order VI, Rule 17, C.P.C. to amend the pleadings for ends of justice. The appellate Court could have directed the appellant for necessary amendments in the memo of appeal, hence, the appeal filed by the appellant, herein, could not be dismissed merely on this technical ground. He further argued that the learned High Court also has not appreciated the law in its true perspective while dismissing the appeal on the same ground. Furthermore, the learned counsel alleged that the Courts, while deciding the controversies between parties, should avoid the technicalities because the same amounts to defeat the spirit of justice. He lastly requested for acceptance of the appeal. In support of his submissions, the learned counsel referred to and relied upon the case reported as "Syed Asif Hussain Shah & others vs. Mian Shah & others" [2020 SCR 793].
4. No one appeared from the other side.
5. We have heard the arguments of the learned Advocate representing the appellant and also gone through the record made available along with the impugned judgment. A perusal of the record reveals that the appellant, herein, filed a suit for declaration-cum-perpetual injunction in respect of land comprising khewat No. 35, survey No. 28 min, (old) 272, 273 (new), measuring 02 kanal, 06 marla, khewat No. 18/16, survey No. 35 (old), 251/1, 252 & 253 (new), measuring 02 kanal, 06 marla, survey No. 253 measuring 02 kanal, 02 marla, khewat No. 9, survey No. 37 (old), 251 (new), measuring 02 kanal 07 marla, total measuring 09 kanal, 01 marla, situated at Mozia Namli Dullai, Tehsil and District Muzaffarabad, against the defendants-respondents, herein, in the Court of Civil Judge, Court No. 4, Muzaffarabad. The respondents, herein, filed an application under Order VII, Rule 11, C.P.C. for rejection of the plaint. The learned trial Court, after hearing the parties, rejected the plaint to the extent of Kharsa Nos.272 and 273, vide Judgement dated 20.03.2017. The appeal against the order of rejection of the plaint was rejected by the learned. Additional District Judge, Muzaffarabad, vide order dated 25.05.2018, on the ground that the appeal was incompetent because the appellant preferred an appeal against the judgment and not against the decree of the trial Court. The appellant, herein, challenged the said judgment and decree before the learned High Court. The learned High Court, after necessary proceedings, dismissed the appeal filed by the appellant on the same ground. Now, the first and foremost point which needs resolution is, whether the order of rejection is final adjudication and has the force of decree itself or not, and while challenging the same, whether drawing or challenging of decree is a requirement under law or not.
For elucidating the matter, we would like to reproduce here the Section 2(2), C.P.C, in which the term 'decree' has been defined as under: "(2) "decree" means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint, the determination of any question within Section 144, and an order under rule 60, 98, 99, 101 or 103 of Order XXI but shall not include:-
(a) Any adjudication from which an appeal lies as an appeal from an order, or
(b) Any order of dismissal for default."
A bare reading of the above-reproduced provisions shows that the Legislature has itself included the rejection of plaint in the term of `decree'. The order of rejection of plaint, therefore, has the force of decree itself, and drawing the decree separately neither is a requirement of law nor its filing is essential. In the instant case, the appellant filed an appeal against the judgment of the trial Court an instead of the decree of the trial Court, and in the title and the prayer clause, the judgment has been challenged and prayed for setting aside. The appellant appended the certified copies of the judgment as well as the decree. The first appellate Court rejected the memorandum of appeal under Order XLI, Rule 3, C.P.C. There is no cavil with the proposition that the appeal under Section 96 C.P.C. is competent against the decree, not against the judgment and filing of decree sheet is mandatory, however, in case of rejection of plaint, the judgment is deemed by fiction of law as decree, and there is no need to draw up a specific decree and if the decree is prepared, even then, filing of same is not required under law, but the proposition involved in this case is somehow & Different as the appellant had filed both the judgment as well as the decree sheet of the trial Court with the memorandum of appeal before the District Judge, but remained unable to mention and challenge the decree in the title and prayer clause of memorandum of appeal, which had been resulted into rejection of plaint under Order XLI, Rule 3, C.P.C. The learned High Court also endorsed the same. Order XLI C.P.C deals with "appeals from original decrees." Rule 1 of Order XLI deals with the "form of appeal" and "contents of memorandum of appeal." We deem it advantageous to reproduce here sub-Rule 1 and 2 of Rule 1 Order XLI, C.P.C. which are as under: "1. Form of appeal
1. What to accompany memorandum. Every appeal shall be preferred in the form of a memorandum signed by the appellant or his pleader and presented to the Court or to such officer as it appoints in this behalf. The memorandum shall be accompanied by a copy of the decree appealed from and (unless the Appellate Court dispenses therewith) of the judgment on which it is founded. `2. Contents of memorandum. The memorandum shall set forth, concisely and under distinct heads, the grounds of objection to the decree appealed from without any argument or narrative; and such grounds shall be numbered consecutively."
The supra rules require conjointly, that memorandum of appeal should append with decree and set forth the grounds of objection to the decree appealed from. The first appellate Court rejected the appeal under Rule 3 of Order XLI, C.P.C. on the ground that the appellant did not file an appeal against the decree of the trial Court, so the appeal against the decision only was not maintainable.
The appeal was not filed according to mandatory provisions of C.P.C., and was not competent. The High Court declared while dismissing the appeal that the appellant failed to fulfill the basic requirement of Order XLI, Rule 1(2) read with Order XLI, Rule 3, C.P.C. For elucidating the matter, Rule 3 of Order XLI C.P.C, is reproduced as under: "3. Rejection or amendment of memorandum '1. Where the memorandum of appeal is not drawn up in the manner hereinbefore prescribed, it may be rejected, or be returned to the appellant for the purpose of being amended within a time to be fixed by the Court or be amended then and there.' `2. Where the Court rejects any memorandum, it shall record the reason for such rejection.'
'3. Where a memorandum of appeal is amended, the judge, or such officer as he appoints in this behalf, shall sign or initial the amendment."
Rule 3, supra, deals with the rejection or amendment of memorandum of appeal. The appellate Court is empowered to reject the memorandum of appeal or return the memorandum to the appellant to rectify it or the Court may order to amend the same then and there, suo moto, whereas, the first appellate Court has not appreciated the provisions of Rule 3, Order XLI, C.P.C. in its true perspective while keeping in view the facts of the case and principle of law settled by the superior Courts relating to Rule 3, Order XLI, C.P.C, which resulted into a resort to hyper technicality and rejection of appeal at the final stage of proceedings. It is a settled principle of law that technicalities should be avoided and same should not be extended to defeat the purpose of law and justice. Reference can be made to a case reported as "Syed Shujahat Hussain Kazmi vs. Mst.
Nazish Kazmi" [2007 SCR 438] It was mentioned in pars 14 of the judgment as Under: "14...... It is a celebrated principle of all enacted laws that while conducting the proceedings under a particular law or enactment, the purpose of act is to be given priority and it cannot be defeated by resorting to sheer technicalities. While elaborating the proposition in a case reported as "Nisar Ahmed vs. The State" [PLJ 1982 SC (AJ&K) 191] it has been held: `10. It should be remembered that while construing a statute the reasons for its enactment should be kept in mind and the statute should be construed with reference to its intended scope and purpose The Courts should seek to carry out its purpose rather than to defeat it. If the statutes meanings are clear it must be accorded the expressed meaning without deviation, since such departure would be treated as an invasion in the province of the legislature by the judiciary."
In the same way, a case reported as "Shahida Iftikhar & 3 others vs. Shabana Mumtaz & 3 others." [2011 SCR 273]. It was beheld in para 6 of the judgment as under: "6. So far as the other argument of the learned counsel that decree was passed against a dead person is concerned it appears to be misconceived in fact the omission of the trial Court resulted into mis-description of the parties. Admittedly the legal heirs of defendant Iftikhar Ahmed, deceased, were brought on record by the Court, vide order dated 14.3.2001. Who were after due process of law proceeded ex-parte on 13.3.2004, therefore, question of decree against dead person doesn't arise. It is an accepted principle of law that no one should suffer for any error or act of the Court. The Courts are vested with powers to correct such error or omission at any time. Law requires the decision of disputes on merits and technicalities have to be avoided which hamper justice, so far as possible. Our this view is fortified from the principle of law laid down in reported cases titled Muhammad Yousaf & others vs. Khan Bahadur (1992 SCMR 2334) and Muhammad Anwar vs. Muhammad Ashraf (PLD 2001 SC 209)."
In another case reported as "Sham vs. Gulzada" [2004 YLR 2074] wherein, it was observed as under: "8........ Though the petitioner had realized that in the memorandum of appeal, he had not challenged the decree against which he had filed the appeal, therefore, had he filed an application on 3.9.1997 for amendment of memorandum of appeal to incorporate the word "decree" therein.
The other question which need consideration at this stage is as to whether non-mentioning the word "decree" in the memorandum of appeal could invalidate the appeal filed by the petitioner, answer to this question is that when the requirements of provisions of Order XLI, Rule 1, C.P.C. were duly complied with in filing appeal, such appeal could not be invalidated by mere omission to mention that the same was being filed against decree. This view was taken in Ghulam Hussain and 3 others vs. Imam Bakhsh and 5 others [1986 CLC 1083]."
6. For the reasons stated above, this appeal is accepted and the judgment passed by the High Court dated 06.12.2022, and that of the Additional District Judge Muzaffarabad, dated 22.05.2018, are hereby set aside while observing that the appeal filed before the Additional District Judge, Muzaffarabad was maintainable. The appeal before the Additional District Judge would be deemed pending and the learned Additional District Judge shall now decide the same on merits.
No order as to costs.