' This petition arises out of the proceedings initiated by the respondent hereinbefore the Majlis-e- Shoora Quetta Division (hereinafter referred to as Majlis) against the judgment dated 8-4-1984 passed by Qazi Bori Sanjavi Loralai in a suit filed by the petitioners for rendition of accounts and possession of Shop No, 1031 situated on Tehsil Road, Loralai. The appeal was filed under sonic what unusual circumstances.
2. On or about 26-3-1981 a suit for rendition of accounts and possession of the shop was filed by the plaintiffs/petitioners before the Deputy Commissioner, ,Loralai and it was prayed that the defendant be bound down to render accounts to the plaintiffs and be evicted from the shop. It was averred in the plaint that defendant Khuda-i-Dad was taken as a partner in the shop to run the business and he had nothing to do with the ownership of this shop. The partnership continued for some time but no account was rendered. The suit was not valued either for the purposes of jurisdiction or court-fee. No court-fee was paid and it was said in the plaint that the court-fee shall be paid after the settlement of the accounts. Since the suit was of a civil nature it was to be tried as laid down in Baluchistan Civil Disputes (Shariat Application) Regulation, 1976 (hereinafter referred to as the Regulation), by the Qazi. Accordingly it was referred to Qazi Bori/ Sanjavi at Loralai to whom the file was put up on 20th June, 1981 and the parties were summoned for 20-7-1981 on which date that the defendant was not present as there was no report that he was served. The case was adjourned to 20-8-1981. On this date too the defendant was not found present and an order was recorded that ex parte proceedings be taken against him and the plaintiffs were asked to produce the account on 21-9-1981. Except that the Urdu translation of the order of Deputy Commissioner was furnished no material proceedings were taken and the case was fixed for 21-10- 1981. On this date the parties were present and the following order was recorded {{ URDU TEXT}} The file does not contain any detail of the account as mentioned in the order of the Qazi nor any statement made in that behalf by any one was even recorded. In pursuance of this order the plaintiff approached the Majlis-e-Shoora, Quetta Division, but the record was remitted to the Qazi and he was asked to proceed according to law. The file was received in the office of the Qazi on 16- 8-1983. The suit was registered and the defendant was summoned for 28-8-1983. Though the case was adjourned to different dates but on 25-10-1983 the defendant was order red to file the written statement. The written statement was filed and the issues were framed on 7-3-1984 and the parties were directed to produce their list of the witnesses and the case was fixed for 19-3-1984. No, order on 19-3-1984 was recorded as no order is found on record, The suit however came up for consideration before Qazi on 8-4-1984. On this date the defendant was present but on an application moved by the counsel of the plaintiffs a judgment was recorded and an ex parte decree in the sum of Rs, 72,000 was ordered in favour of the plaintiff and also for the possession of the shop. It was also mentioned in this judgment that the plaintiffs shall pay the court-fee within two months. The judgment reads :- {{URDU TEXT}}
3. The defendant approached the Majlis-e-Shoora, Quetta Division on 19.4-1984 and it was complained that no copy of the decree has been supplied as no decree has been drawn thus the appeal was not accomp anied with any decree. The court-fee stamps worth Rs, 718 were however affixed. Alongwith the report of the Reader this appeal was placed before the Majlis-e-Shoora and it was said by toe learned Members of the Majlis-e-Shoora in their order that no decree has been drawn up by the Qazi Bori Sinjavi. The Qazi was, therefore, directed to prepare the decree immediately and send the same alongwith the record. It was also ordered that the court-fee be made good by 3-5-1984 through the deficiency in amount of court-fee was not assessed and pointed out to the appellant. An application was made on behalf of the appellant that since the valuation of the suit for the purpose of jurisdiction and court-fee has not been determined either by the plaintiffs in the suit nor the Qazi in his judgment has determined the same. Thus, the extent of deficieney in court-fee cannot be found, so it may be determined and the appellant undertook to pay the deficient court-fee. On 24-5-1984 an application for stay was filed on behalf of the appellant. The appeal was registered on 24-5-1984 and the proceedings for execution were ordered to be stayed. Appearance on behalf of the present petitioners (the respondents before the Majlis-e-Shoora) through counsel was made and tne power on their behalf was promised to be filed later. Mr. Azizullah Memon, Advocate on 30-8-1984 filed the reply to the application under Order XL, rule 5, C. P. C. On 13-12-1984 it was found by the Majlis-e-Shoora that since the plaintiff had not paid any court-fee so for they shall pay court-fee payable on the claim of Rs, 72,000 upto 23-12-1984 and thereafter the appellant should pay the court-fee on this amount upto 27-12-1984.
It was also noticed that the relief of possession was not valued in the suit neither the same was determined by the Qazi.
4. The petitioners have challenged this order of the Majlis-e-Shoora as the petitioners have been called upon to pay t e court-fee. Along-with the Revision Petition an application (C. M. 585/84) was also m :de and it was prayed that the operation of the impugned order be stayed.
' The Acting Chief Justice while dealing with the application passed the following order "Notice. Till then the operation of the impugned order is stayed but the decree passed in favour of the petitioner would not be executed unless he pays the court-fee."
' It was not disclosed that the execution of the decree was also stayed by the Majlis-e-Shoora or that the decree had been executed and the defendant dispossessed by the petitioners. The fact of dispossession of the defendant/respondent in execution of the so-called decree came to light for the first time when it was disclosed by Mr. Basharatullah in his application filed in the High Court on 29-12-1984. The petition was however argued on 13-7-1985 and the judgment was reserved.
5. Mr. Azizullah Memon the learned counsel for the petitioner has vehemently urged that the appeal filed by the respondent herein was manifestly incompetent and the Majlis-e-Shoora was in error in not dismissing the same on the ground that proper court fee was not paid. According to Mr. Memon the Majlis-e-Shoora has failed to exercise the jurisdiction. Mr. Basharatullah the learned counsel for the respondent on the other hand has taken the stand that it has not determined as to what amount is payable as the suit was not valued by the plaintiffs nor the Qazi determined the same even when the suit was disposed of by the judgment dated 8-4-1984, the extent of deficiency has not been pointed out by the Majlis. Even court-fee worth Rs, 710 was however paid when the appeal was presented to the Majlis.
6. The execution of the decree carried in flagrant disregard of the Court's order was shocking to me, I, therefore, ordered that the record be called for and on perusal of the record very unusual facts came to light which shall be considered hereinafter. Though the judgment was reserved by me but after perusing the record I considered it necessary to hear further arguments on the questions which had arisen in the matter. Accordingly I invited the learned Advocates to address the further arguments on the points enumerated by me in my order dated 22-8-1985. The points involved are :- (1)Whether there was a decree, prepared in accordance with law and agrees with the judgment passed by the learned Qazi ?
(2)Whether the decree was executable in view of section 11 of the Court Fees Act ?
' The so called decree sheet prepared by the Qazi appearing at page 13 of the file is reproduced :- {{URDU TEXT}}
7. By virtue of the provisions contained in section 3 of the Regulation, the Code of Civil Procedure had been made applicable to the proceedings under this Regulation. The questions, therefore, that arises in this case is whether the procedure adopted by the learned Qazi in determination of the matter was in accordance with the provisions of law laid down in the Code of Civil Procedure and thereafter whether the so-called decree-sheet dated 8-4-1984 sent by the Qazi to the Majlis-e- Shoora in compliance with their orders dated 19-4-1984 conforms to the mendatory provisions of Order XX, rule 6, C P. C. The suit filed by the plaintiffs was for rendition of accounts and for possession of the shop in occupation of the defendant who had resisted the claim and had denied that there was any partnership between the parties and he had specifically pleaded that he was in occupation of the shop in his own right as owner. It was incumbent on the Qazi to record a finding as to the liability of the defendant to render the account because it necessarily involved the result that account should be taken. Order XX, rule 16, C. P. C. Is applicable to all suits for accounts and the provisions contained in Order XX, rule 16, C. P. C. Lay down that in a suit for account in order to ascertain the amount of money due to or from any party that art account should be taken, the Court shall, before passing its final decree, pass a preliminary decree directing such account to be taken. By means of this preliminary decree, the Court must first hold that the defendants is liable to account and thereafter direct that the account be taken because the final decree can be passed after the accounts are taken and the parties have been afforded an opportunity to show how much is due. In a suit for dissolution of partnership the Court before making its decree has to pass an order fixing the day on which the partnership shall stand dissolved and directing such accounts to be taken. It would be impossible for a Court to declare accounts to be taken unless it had previously found that the parties are partners and as such, entitled to receive or bound to render accounts. The account suit would be competent only if the liability to account is established. The declaratory order in the dissolution of partnership is made in the first instance with the object of forming a basis for further proceedings. This is the reason or necessity for drawing up a formal decree for accounts as provided under Order XX, rule 6, C. P. C. The Code prescribes the form in which this preliminary decree is to be drawn (Schedule D of the Civil Procedure Code). It was therefore, the duty of the Qazi to see that a preliminary decree has actually been drawn in the suit.
8. In the instant case the decretal part of the adjudication was based on a matter which was being contested and there is nothing on record that the plaintiffs has established that fact. The plaint, the copy whereof is found on the record of the Qazi is not verified on Oath as required under law. There is nothing on record to show that any witness was examined nor any document in respect of the alleged partnership was filed. This was the position upto 21-10-1981, later when the file was received from the Majlis-e-Shoora in the Court of the Qazi, the defendant was required to file the written statement and the liability to render account or liability to any amount was denied. It was asserted by the defendant that he is in occupation of shop as of right. The claim of ownership of the plaintiff was denied. The learned Qazi, therefore, framed the issues and required the parties to file the list of witnesses. The record reveals that the plaintiff made an application and required the Court to summon two of his witnesses for which the diet money was offered but all of a sudden an application was made on behalf of the plaintiff. No copy was furnished to the defendant for reply and abruptly the judgment was announced with no evidence on record.
9. Section 33 of the Code lays down that the Court after a case has been beard, shall pronounce the judgment and on such judgment the decree shall follow. Order XX, rules 1 to 5 deal with judgment in original suit and rule 6 gives the particulars which are to be entered in the decree.
Specified forms are prescribed for decrees in different clauses of suit by Appendix D of the first schedule to the Code. It is, therefore, quite clear that in the case of an original civil suit the decree must be quite distinct from the judgment. This was the view adopted by a Division Bench of the Lahore High Court in Gela Ram and others v. Ganda Ram (1). This was followed in PLD 1978 Lah.
679. No decree has been drawn in the form and manner prescribed by the Code of Civil Procedure: The one drawn by Qazi referred to above has not been drawn in the form and manner prescribed by C. P. C. Nor conforms to the mandatory provisions of Order XX, rule 6, C. P. C. And thus cannot be treated as a decree as it does not contain the particulars prescribed. It also does not agree with the judgment.
10. Order XLI, rule 1, C. P. C. Is applicable to appeals and is absolutely clear under the said rule every appeal has to be preferred in a form of memorandum signed by the appellant or his pleader and has to be accompanied by a copy of the decree appealed from and the judgment on Which it is founded. Rule 1 empowers the appellate Court to dispense with the filing of the judgment but there is no jurisdiction in the appellate Court to dispense with the filing of the decree. In law the appeal is not so much against the judgment as against the decree; that C is why the period of limitation has been prescribed for such appeal and provides that period commences to run from the date of decree, therefore, there is no doubt that the requirement that the decree should be filed along with the memorandum of appeal is mandatory and in the absence of the decree the filing of appeal would be incompetent and defective. Respectfully following the law laid down in the above precedents I hold that in the instant case there was no decree within the provisions of they Code of Civil Procedure and no appeal lay.
11. The matter does not end here. It is clear as demonstrated above that the proceedings taken by the Qazi after 7-3-1984 was opposed to the mandatory provisions of law and offends against the principles of natural justice and is nullity in law. The application moved by the
(1) AIR 1920 Lah. 395 plaintiffs and pressed by the counsel was based on a mistaken view of th law. Defendant if not appearing on a day fixed for his appearance can not be precluded from appearing at all if he does not show good cause. Mere absence on a certain date does not make defendant ex parte for rest of trial and the hands of the Court are not tied if so-called ex parte orde not set aside. A similar point arose in Collector, Quetta Sub-Division v. Sardar Qasim and 3 others (1). The facts in that case were identical with the facts of the present case and it was observed by this Court after review ing the case law that a party cannot be stopped from participating in the proceedings simply because he did not appear on the first or some other hearing. It is now too late to contend that mere absence on a certain day makes him ex parte for the rest of the trial and this extreme view is opposed to preponderance of the authorities". Some of the authorities were referred by me in that case as I had rendered that judgment. It was held that Court's endevour should be to avoid snap decisions and to afford litigants a real opportunity of fighting out their case fairly and squarely. The violation of this principle of natural justice renders the proceedings coram non judice. The learned Qazi in the instant case ha violated this cardinal principle and has failed to exercise jurisdiction vested in him and proceedings are rendered coram non judice. The Qazi has ignored the presence of the defendant. The least that can be said is that the Qazi was misled by the counsel appearing for plaintiffs' and by conceding his request has committed the error of a procedure which has affected the ultimate decision and has rendered the entire proceedings after 7-3-1984 as coram non judice and nullity in law.
12. The illegality has been carried to the limit, in that the judgment has been put to execution .And in flagrant disregard of Qazi's own judgment. He has put the petitioners in possession of the shop even though no court-fee has been uptil now paid. The decree even if it be so was certainly not executable and in view of the law laid down in Zafar Ahmed's case-(2) the interference by the High Court has become necessary. The scope of revisional jurisdiction under section 115, C. P. C. Is very ably described in the celebrated case of S. Zafar by the full Bench of Seven learned Judges of the West Pakistan High Court and Manzur Qadir, C. J. Who delivered the judgment on behalf of the Full Bench has summarised the following propositions at page 158 of the report in these words:- "The position with reference to section 115, may thus be summarised in the following propositions:-
(I) The High Court may, in respect of any state of facts judicially considered, on which a Court subordinate to High Court has given a decision, make such order as it thinks fit, if in the opinion of the High Court, such Court in giving the decision-
(a) has exercised or assumed a jurisdiction not vested in it by law, or
(b) has failed to exercise or declined to assume a jurisdiction vested in it by law, or
(c) while exercising its jurisdiction has taken a procedural step which is contrary to a mandatory provision of. The law, or has omitted to
(1) PLD 1983 Quetta 1 (2) PLD 1964 Kar. 149 take a procedural step which is required by a mandatory provision of the law to be taken, or(d) while exercising its jurisdiction has taken a procedural step which is contrary to directory provision of the law, or to a general principle of law, and which in the final result has given to one party an advantage over the other which it would not have got but for the fact that step was taken."
A case has been certainly made out for the interference of the High Cour and the defendant/respondent is entitled to the restoration of the propert illegally taken from him in violation of the law and express orders of the Majlis and the High Court.
' In exercise of the power under section 115, C. P. C. I declare that the proceedings taken by the Qazi Bori on 8-4-1984 in the suit filed by the petitioners are nullity in law and have to be ignored and the step taken thereafter in execution stand vitiated. I accordingly set aside the judgment dated 8-4- 1984 and the so-called decree drawn by Qazi dated 8-4-1984 and order that the possession of the Shop No, 1031 situated on Tehsil Road Loralai shall be restored to the defendant Kbuda-e-Dad son of Abdul Rehman. This shall be done within 15 days of the receipt of this judgment by the Qazi and he shall report compliance to the Additional Registrar of this Court. The record of the case shall be remitted immediately to the Qazi Bori/Sanjavi Loralai who shall proceed with the suit in accordance with law from the stage it was ordered on 7-3-1984. The parties shall bear their own costs.
' These are the reasons for the short order announced on 9-9-1985.