1. ' SHAFIUR RAHMAN, J.-Leave to appeal was granted to the defendants vendees in a pre-emption suit against the judgment of the Peshawar High Court dated 15-3-1980 whereby an incompetent revision petition filed in the High Court was allowed to be treated as a second appeal but from the date when an application for such a conversion was filed not allowing to the appellants the benefit of the time that an incompetent revision petition had been pending in the High Court.
2. ' The appellant purchased eight Kanals seven Merles in Village Bazid Khel, tehsil and district Peshawar vide Mutation 1642 attested on 8-12-1965 for a sum of Rs, 15,197. A pre-emption suit was filed by respondent No, 1 Sheikh Abdur Rahim which was dismissed on 18-7-1969. The matter then came up to the High Court and was remanded. On 18-10-1973 the suit was dismissed. On 10-11-1975 the District Judge accepting the first appeal reversed the judgment and decree and allowed respondent No, 1 to pre-empt the sale on payment of Rs, 15,197. Within ninety days of this decision, i. e. On 29th of January, 1976 the appellant filed a civil revision petition which remained pending in the High Court when an application was made on 4-6-1978 that as the subject-matter of the suit was over Rs, 2,000, a second appeal was competent and the revision memo. Should be treated as a memo of second appeal. The High ,Court granted this request on 1-10-1978. It was thereafter registered as Regular Second Appeal No, 49 of 1978. Thereafter the question of limitation with regard to filing of the second appeal arose as the conversion had been allowed subject to all just and valid exceptions. The learned Judge in the High Court following the decision of this Court in Civil Petition for Leave to Appeal No, 131 of 1975, decided on 30th of November, 1977 and following the law laid down in Resal Singh and others v. Shadi held that there was no sufficient cause for1 extending the period of limitation nor any application for condonation of the delay was made. The second appeal was dismissed as time-barred.
3. ' The learned counsel for the appellants contended before us that only a rectification was sought inasmuch as a civil revision petition which was incompetent was sought to be treated as a second appeal, as a revision was not competent and a second appeal was competent. There was no question of any deficiency in court-fee or extension of time. It was, in fact, a technical obstacle in the way of the appellants and he by making a formal request as soon as the true legal position became apparent to him, satisfied the requirements of the law and was entitled to an adjudication on merits. There could be no question of the second appeal being time-barred as the revision which was sought to be treated as a second appeal was, in fact, filed within time prescribed for the filing of the second appeal. The learned counsel further pointed out that all cases where the bar of limitation has been imposed in the manner that has been done in the impugned judgment of the High Court were those where either there were deficiencies in. The court-fee which had to be made up or other formalities to be completed. There is not one precedent where without any deficiency in court-fee and without any delay so far as the initial period of limitation for the filing of a second appeal is concerned such a request has been disallowed or not acceded to.
4. ' The learned counsel for the respondent, on the other hand, contended that it was indeed within _the discretion of the High Court to treat the memo. Of a revision petition as that of a second appeal, and it had also the power to condone the delay keeping in view the nature of the negligence of the party or sufficiency of the cause for the delay. The High Court, according to the learned counsel for the respondent, has refused to exercise the discretion in favour of the appellants.
5. ' Taking up the cases decided by the Peshawar High Court first we find that in the case of Gul Zada v. Haft Muhammad Umar and 7 others the Court held that there was no dispute with the proposition that a revision would not lie where an appeal lay and for converting a revision into an appeal there should be a specific application. In two cases reported from Calcutta and Dacca taken note of in that judgment it was observed that :- "The learned counsel for the petitioner has referred me to The West Pakistan Water and Power Development Authority, Lahore v. Messrs Omar Sons Ltd., Guru Dast v. Sarbananda Mahaldar and Madhu Mian and others v. Rajaram Barai and another. The Lahore Authority is not going to help him for that was a case in which appeal was treated as revision. The Calcutta Authority is also not going to help him for in that case revision was allowed to be converted on a request made in that behalf after that the Court was satisfied that requisite court-fee for memorandum of appeal had already been paid. As far as the Dacca authority is concerned there also was a specific request by he learned counsel for the petitioner that the petition be treated as memorandum of appeal and again court-fee actually paid was in excess of the court-fee that world have been required to be paid in case of an appeal PLD 1961 Dacca 243 ; A 1 R 1943 Cal. 177 and PLD 1970 Lah.
6. 398.
7. ' The other decision from Peshawar is reported as Muhammad Shaft v. Firm Haji Fazal Ilahi Noor Ilahi and others ., In this case a revision petition was filed which was allowed to be treated as an appeal and court-fee deficiency being found to be on account of a bona fide mistake of law, the discretion was exercised in favour of litigant.
8. ' In the case of Thal Engineering Industries Ltd. v. Bank of Balgtwalpur Ltd. And another the High Court had refused to treat a revision petition as a first appeal as it was originally the first appeal which was allowed to be treated as a revision. This Court observed :- "We, however, do not fully share his view that once having treated the appeal as a revision the same could not again be disposed of an appeal. Once the appeal had been filed in time and on some mistaken advice a request was made to treat the same as revision, there does not appear to2 3 4 be any legal bar, on a proper appreciation of the law, in again treating it as an appeal. It it established law that Courts should lean in favour of adjudication rather than stifling a proceeding on technicalities. However, being agreed with the view taken by the learned Judge with regard to the question of maintainability of the objection application, no interference is called for with his judgment merely on this score."
9. ' A more forceful and clearer expression of the law applicable to such a situation finds mention in Smt. Guru Dasi v. Sarbananda Mahaldar and others which has been noted in the leave granting order. It appears that in that case the request had been made during the bearing of the arguments and was allowed. The Court observed as follows :- "The learned Advocate appearing to oppose this application has taken a preliminary objection that an order refusing restoration under Order XLI, rule 19 is an appealable order, and no revision lies.
10. This objection is no doubt sound. But the learned Advocate for the petitioner requests me in the special circumstances of this case to treat this application as a memorandum of appeal and to deal with it as an appeal. The court-fees actually paid are in excess of the court-fees that would have been required to be paid in the case of an appeal. There is abundant authority for the proposition that in the ends of justice this Court has the power to treat a memorandum of appeal as an application for revision and vice versa an applcation of revision as an appeal in suitable cases. The present, in my view, is a case in which I feel that this indulgence should be given to the petitioner and the application in revision, though not maintainable, should he treated as a memorandum of appeal."
11. ' In the case of Muhammad Bashir and 9 others v. Fateh Muhammad and 2 others a similar situation arose at the stage of hearing of the arguments when a preliminary objection was taken that as an appeal was competent, a revision petition could not be filed. It was disposed of as follows :- "Learned counsel for the respondents, however, has opposed the prayer for treating this revision petition as being an appeal. He submits that this being a pre-emption case, no indulgence should be shown to the petitioners. In this respect, he relies on Saeed Ahmad and others v. Karam Singh, in which case it is observed that in cases of pre-emption discretion conferred by section 149, C. P. C.
12. Needs to be exercised with greatest care where the question of limitation is involved. No question of limitation, however, is involved in the present case. Filing of a revision instead of an appeal is only a technical error, and there is no bar in treating a revision as being an appeal even in a pre-emption case. This revision petition will, therefore, be treated as being an F. A.
13. 0."
14. In the case before us the High Court has allowed the revision to be treated as second .Appeal. The only point issue is from what date this' revision should be treated to be converted into a second appeal, from the date a misconceived civil revision petition was instituted, from the date a request was made for its conversion or from the date that it was allowed to be converted and registered as a second appeal. We find that as no other formality had to be completed in the nature of deficiency in court-fee to be made up or condition to be satisfied; e. g. The initial bar of limitation, the treatment has to be from the date that the revision petition was instituted.
15. ' A more illustrative decision on the subject is Jnanandasundari Nandi v. Narayan Chandra Sardar and others in which it was observed that :- "Mr.Sris Chandra ,Dutta appearing for the petitioner at last conceded before the Court that the application under section 115, C. P. C. Was misconceived and he took his stand that the application should be treated as a memorandum of second appeal as there was no question of court-fees and limitation in this case and as the matter involved a question under section 47, C. P. C. In this connection he relied on the case of Argun Das v. Gunendra Nath Basu" Mallick reported in 20 C L .15 6 7 341 where their Lordships Mookerjee and Beacheroft, JJ. Treated the petition on which a Rule was issued, as a memorandum of appeal when there was no question of limitation or court-fees. This is not challenged on behalf of the opposite parties. Admittedly there is no question of limitation and court-fees and accordingly the petition on which the Rule was granted was treated as a memorandum of appeal."
16. The cases referred to and relied upon in the impugned judgment of the High Court are distinguishable.
17. ' In the case of Military Estate Officer v. Fida Muhammad (C. P. S. L. A. No, 131-P11975), Fida Muhammad the plaintiff had sought a declaration and an injunction and had also claimed specific performance of the contract. He had succeeded. He had valued the relief for the purposes of court-fee at Rs, 130 and for the purposes of jurisdiction at Rs, 2,160. The first appellate order was dated 7-10-1972 against which a revision petition was filed on the 27th of January, 1973 which was after excluding the period spent in obtaining the copy of the judgment and decree found to be within 90 days. On the 12th of February, 1973 when the revision petition came up for hearing the following order was recorded by the Court "The value of the subject matter of the suit in the present case is Rs, 2,290. As such a second appeal, and not a revision, would lie under the amended section 102(b), C. P. C. At the oral request of the learned counsel this revision petition be treated as Regular Second Appeal.
18. ' Send for the record."
19. ' The second appeal ultimately came to be heard on 28th of April, 1975 and the following finding was given :- "Factual position is clear. The Government in the first instance preferred a revision petition on 27-1- 1973 though it was clearly indicated that value for the purposes of court fee was Rs, 2,290. A reference to Law Reforms Ordinance, 1972 will show that since the value exceeded Rs, 2,000 an R. S. A. Would be competent. In the circumstances there was no other alternative for the Government but to have submitted an appeal and they corrected the position on 2-2-1973 and that is to be the date on which R. S. A. Was instituted. Since the period of limitation was 90 days and this period expired on 27.1-1973, the R. S. A. Was barred by 5 days."
20. ' There seems to be a clerical error in treating the date of institution of second appeal as 2nd of February, 1973 when as indicated above it was 12th February, 1973. The decision in Resal Singh and others v. Shadi was held by the High Court to apply "on all fours" and the preliminary objection raised by the respondent was allowed to prevail and the appeal was held to be barred by time and dismissed as such.
21. ' The Military Estate Officer then filed a Civil Petition for Special Leave to Appeal (131-P/1975) and the very opening words of the order of this Court are as follows "This petition for leave to appeal arises out of an order of a learned Single Judge of Peshawar High Court dated 28-4-1975 by which the appeal of Military Estate Officer, Government of Pakistan and others was dismissed as barred by limitation. The learned Additional Advocate-General concedes before us that in the High Court the appeal was barred by five days as also that no application had been filed under the Limitation Act for seeking the condonation of the delay in question. It is, therefore, obvious that the learned Single Judge had no option but to hold that the appeal was incompetent being barred by five days."
22. ' It will be seen from the orders passed in the case that before the Supreme Court there was a concession by the learned counsel representing the petitioner, namely, the Additional Advocate- General himself, that the appeal was barred by 5 days and also that no application had been filed under the Limitation Act for seeking the condonation of the delay in question. This decision of the Supreme Court is actually based not on a finding but on a concession made by the appellant himself. It is not determinative of the question involved in this appeal.
23. ' The case of Resal Singh which had been made the basis for deciding against the appellants in the High Court dealt with an altogether different situation. In that case a second appeal was competent, as in these eases, but a revision petition had been filed. It was after about 7 months that the revision was got converted into the Regular Second Appeal and what is the distinguishing feature is that the court-fee was made up then. Now this extension of time for making up the deficiency in court-fee had to be granted on good cause shown and on account of a bona fide mistake. The High Court found that as the filing of a revision petition where a second appeal lay, was such a mistake as cannot be condoned bona fide, and as such extension could not be granted for making deficiencies in court-fee and the second appeal would be deemed to be instituted only when not only conversion was allowed but the deficiency in court-fee was made up.
24. As already noticed we are dealing here with an altogether differed category of cases, that is, those where no substantial defect exists, no deficient in court-fee is to be made up and what is sought is correction of a clerical mistake, a technicality not affecting the merits of the case or the vested right of any party to litigation. This Court has on the strength of strong precedent law held in Manager, Jammu & Kashmir State Property in Pakistan and others v. Khuda Yar and another that technical rules unless unsurmoun-table should yield to interest of substantial justice. The same view was - expressed in that Engineering Industries Limited that "Courts should lean in favour of adjudication rather than stifling a proceeding on technicalities".
25. ' For the foregoing reasons we accept the appeal. Set aside the judgment and decree. The second appeal shall be deemed to be pending for adjudication in, accordance with law before the High Court. No order as to costs. A 1 R 1918 Lah. 67 PLD 1978 Pesh. 170 PLD 1964 (W. P.) Pesh. 182 1979 SCMR 32 PLD 1961 Dacca 243 1980 CLC 1581 D L R 627 PLD 1975 SC 678