' This civil revision has arisen out of a suit brought by the respondent, Winston Bakhsh, against the petitioner, Qadeer Shamas, for possession of certain premises. The suit was decreed by a Civil Judge, on 18th May 1987. Petitioner, therefore, filed an appeal but it was dismissed by an Additional District Judge, on 18th February 1988. Hence this civil revision.
2. The memorandum of appeal, as worded by learned counsel for the petitioner, gave an impression that the petitioner was assailing some order made by the learned Civil Judge on 18th May 1987. Alongwith the memorandum of appeal, however, he appended certified copies of the judgment and decree passed by the learned Civil Judge, by which his suit was dismissed on the said date. No copy of any order was annexed thereto. Mistaken reference to the said judgment and decree as an order, however, did occur to learned counsel for the petitioner during the pendency of the appeal when he made application, under Order XLI, rule 3, read with section 151 of the Code of Civil Procedure, for amendment of the memorandum of appeal so as to substitute the words "judgment and decree" for the word "order" but that application as well as the appeal were dismissed by the learned Additional District Judge on 18th February 1988, holding that it was not a fit case for allowing amendment and that the appeal against the so-called order was not maintainable. He did not deal with the merits of the case.
3. Arguments raised by learned counsel for the petitioner were that it was due to clerical error that in the memorandum of appeal, for the words "judgment and decree", the word "order" had been typed and that since the date of order, referred to therein, was the same on which the judgment and decree in question were passed, the learned Additional District Judge ought to have allowed amendment of the memorandum of appeal and then decided the appeal on merits.
4. On the other hand, it was submitted by learned counsel for the respondent that the petitioner was careless in not filing appeal against judgment and decree of the learned trial Court and, therefore, the learned Additional District Judge was justified in refusing amendment of the memorandum of appeal and dismissing the appeal as incompetent.
5. It is not disputed that the appeal was admitted to a regular hearing on 23rd May 1987 and that after the respondent had entered appearance it was adjourned, from time to time. At long last, arguments were heard on the application for amendment of memorandum of appeal, competency of the appeal and the merits thereof, on 17th February 1988, and application for amendment as well as the appeal dismissed on the next day.
6. Undoubtedly, the appeal was not quite in order in the sense that in the memorandum of appeal it was indicated that the suit resulted in an order although it had actually culminated in the judgment and decree. Date of decision of the learned trial Court was, however, correctly mentioned as 18th May 1987. That the petitioner intended to assail the judgment and decree passed by the learned trial Court on 18th May 1987 and not any order made by that Court on the above date is, however, evident from the fact that the memorandum of appeal was accompanied by certified copies of the said judgment and decree and no copy of any order was appended thereto. It is also clear from the memorandum of appeal that the appeal was directed against the dismissal of the suit. In this connection, following plea in the memorandum of appeal, occurring just above the "GROUNDS OF APPEAL", is noteworthy:- ' Plaintiff filed the present suit which was dismissed on 18-5-1987. On being aggrieved from this impugned order this appeal is being filed".
' Obviously, the suit was dismissed by means of the judgment and decree of the said date and not by any order passed thereon. Thus, reference to "impugned order" was, in fact, reference to the judgment and decree by which the petitioner was non-suited. Then, in ground (b), it was urged that the learned trial Court decided an undervalued suit. This also refers to final disposal of suit by means of the judgment and decree. Further, in ground (c), it was submitted that the suit was time- barred and to decide such a case was wrong and unlawful. There was thus no room for doubt that the appeal was aimed at attacking the judgment and decree by which the suit was decided, but in the memorandum of appeal, learned counsel for the petitioner, through inadvertence, used the word 'order' instead of the words "judgment and decree". As already stated, date of order mentioned in the memorandum of appeal is the same as that of the said judgment and decree. All this lends strong support to the petitioner's plea, raised in the application for amendment of memorandum of appeal, that it was due to clerical Prror that the word "order" was typed in the memorandum of appeal and that the said word, in fact, referred to the "judgment and decree" passed by the learned Civil Judge. I wish the learned Additional District Judge had attempted to grasp the real object behind the appeal without being obsessed by the word "order" occurring in the memorandum of appeal. This reminds me of the following verse of Iqbal:- {{URDU TEXT}}
7. In this connection, I may also refer to following opinion expressed in Lakshmi Ratan Cotton Mills Co. Ltd. Kanpur v. J.K. Jute Mills Co. Ltd., Kanpur (AIR 1957 Allahabad 311):- "I would be slow to throw out a claim on a mere technicality of pleading when the substance of the thing is there and no prejudice is caused to the other side, however, clumsily or inartistically the plaint may be worded" ."
' This view, which was in regard to pleadings, was followed by Anwar-ul-Haq, J. (as he then was) in Rajabali v. Messrs Gujrat Bus Service, Karachi and another (PLD 1961 (W.P.) Karachi 486). Similar observations were made in Hunoomanpersaud Panday v. Mussumat Babooee Munraj Koonweree [(1856) 6 M.L.A.393] in relation to the framing of issues. They read as under:- "On the first point their Lordships think it right to observe that it is of the utmost importance to the right administration of justice in these Courts, that it should be constantly borne in mind by them that by their very constitution they are to decide according to equity and good conscience; that the substance and merits of the ease are to be kept constantly in view; that the substance and not the mere literal wording of the issues is to be, regarded; and that if, by inadvertence, or other cause, the recorded issues do not enable the Court to try the whole case on the merits, an opportunity should be afforded by amendment, and if need be, by adjournment, for the decision of real points in dispute".
' Although the said observations, recorded in the cases of Lakshmi Ratan Cotton Mills Co. Ltd., Kanpur and Hunoomanpersaud Panday, were made in somewhat different contexts yet they can be relied upon to support the proposition that while deciding any matter placed before it the Court should look to its substance regardless of the fact that inappropriate or unhappy language is used by the party, bringing the matter before it, in giving vent to his grievance. This, I regret to say, was not done by the learned Additional District Judge in the instant case while refusing permission to the petitioner to amend the memorandum of appeal.
8. Before proceeding further, I would like to mention that the desired amendment, if allowed, would not have caused any prejudice to the respondent because, as explained above, despite the language employed by the petitioner for making reference to the judgment and decree passed against him by the learned Civil Judge, the respondent had clear notice of the fact that the petitioner was aggrieved by the said judgment and decree and wanted to avoid the same. There was, thus, no confusion as to what the petitioner was really upto.
9. Learned Additional District Judge had ample power to allow amendment of the memorandum of appeal. Order XLI, rule 3, of the Code of Civil Procedure, which was invoked by the petitioner in this regard, makes the following reading:- "3. Rejection or amendment of memorandum.--(1) Where the memorandum of appeal is not drawn up in the manner hereinafter 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 reasons 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".
Other relevant provisions are contained in section 153 of the Code of Civil Procedure which runs as follows:- "153. General power to amend.--The Court may at any time, and on such terms as to costs or otherwise as it may think fit, amend any defect or error in any proceeding in a suit; and all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on such proceeding."
10. It was not disputed that section 153 of the Code of the Civil Procedure is also applicable to appeals by virtue of the provisions of IC section 107 of the said Code.
11. A comparison of section 153 of the Code of Civil Procedure with sub-rule (1) of rule 5 of Order XIV thereof, would reveal that their phraseology is common at more than one places. Sub-rule (1) of rule 5 of Order XIV reads thus:- "5. Power to amend, and strike out, issues.--(1) The Court may at any time before passing a decree amend the issues or frame additional issues on such terms as it thinks fit, and all such amendments or additional issues as may be necessary for determining the matters in controversy between the parties shall be so made or framed".
12. Frankly speaking, I have not been able to lay hands on any case-law holding that the provisions of second part of section 153 are mandatory in nature, but it was ruled by the Privy Council in Shamu Patter v. Abdul Kadir Ravuthan and others (I.L.R. 35 Madras 607) (Privy Council) that first portion of section 149 of the Code of Civil Procedure 1882 (Act XIV of 1882), which was in similar terms as sub-rule (1) of rule 5 of Order XIV of the Code of Civil Procedure 1908, gave discretion to the Court to strike such additional issues as it thought fit; whilst the latter part obliged it to frame such additional issues as may be necessary for determining the real dispute between the parties.
Section 149 of the Civil Procedure Code, 1882, since repealed, was to the following effect:- "149. The Court may, at any time before passing a decree, amend the issues or frame additional issues on such terms as it thinks fit, and all such amendments or additional issues as may be necessary for determining the controversy between the parties shall be so made or framed.
' The Court may also, at any time before passing a decree, strike out any issues that appear to it to be wrongly framed or introduced".
' Precise observations of the Privy Council in the said case of Shamu Patter were as follows:- "With regard to the first point their Lordships are of the opinion that section 149 of the Civil Procedure Code (Act XIV of 1882) which is applicable to the proceedings is conclusive. That section declared that the Court may at any time before passing a decree amend the issues or frame additional issues on such terms as it thinks fit, and all such amendments or additional issues as may be necessary for determining the controversy between the parties shall be amended or framed.
' The first part of the section leaves it in the discretion of the Court to frame such additional issues as it thinks fit. Whilst the latter makes it imperative on the Judge to frame such additional issues as may be necessary to determine the controversy between the parties. The Subordinate Judge was, therefore, fully empowered to frame the issue on which he decided the case".
13. Relying on the above ruling of the Privy Council, it was held in Premier Insurance Company of Pakistan, Karachi v. P & 0 and B.I. (Strath Services Gunard Brockle Bank), Karachi and another (PLD 1980 Kar. 412) that under the second part of sub-rule (1) of rule 5 of Order XIV of the Code of Civil Procedure, it is imperative on the Court to frame such additional issues as may be necessarsy to determine real controversy between the parties and this it can do at any time before passing a decree. No authority to the contrary was cited before me. On the analogy of the above case-law, therefore, I hold that the provisions of second part of section 153 are mandatory while those contained in first part thereof are discretionary in nature. To hold otherwise, would make bifurcation of section 153 into two parts meaningless; and it is a well-established rule of interpretation that every word used by the Legislature has a meaning.
14. Now, turning to the case in hand, real question involved in the appeal was whether decision of the learned Court, as reflected in its judgment and decree, was correct. In view of the second part of section 153 of the Code of Civil Procedure, therefore, the amendment sought by the petitioner was necessary for determining the said real question rose in the appeal and as such it was obligatory for the learned Additional District Judge to allow that amendment. In this view of the matter, his order, refusing the amendment, was illegal for being in contravention of provisions embodied in second part of section 153.
15. Even if the view taken is that the second part of section 153 also vested discretion in the learned Additional District Judge to allow or refuse the amendment, he ought to have exercised this aiscretion judiciously. It is, however, regretted that he had failed to do so.
16. Reasons given by the learned Additional District Judge for disallowing the amendment are that the petitioner was negligent in drawing up the memorandum of appeal and that a valuable right had accrued to the respondent due to expiry of the period of limitation.
17. In regard to negligence, I have already explained that it was a case of misdescription of the decision of the learned Civil Judge inasmuch as the petitioner termed it as his "order" instead of describing it as his "judgment and decree", but, as noted earlier, petitioner's intention to challenge his judgment and decree was manifest. Mistake of the petitioner in this regard was inadvertent.
Perhaps it occurred due to inexperience of learned counsel for the petitioner. That the petitioner's counsel was a novice in discernible from the fact that even otherwise the memorandum of appeal is not nicely worded. Be that as it may, mistaken use of the word "order" by him hardly furnished justification for denying to the petitioner the right of appeal. The learned Additional District Judge also committed a mistake or, to use his language, was guilty of negligence, in admitting the appeal to a regular hearing which, for reasons ultimately given by him for its dismissal, could be returned or rejected under sub-rule (1) of rule 3 of Order XLI of the Code of Civil Procedure on the very day on which it was placed before him for the first time. Why should he punish the petitioner for his so- called negligence when he (Additional District Judge) was himself negligent in handling the matter? To my mind, there is no justification for his so doing.
18. As for running out of the period of limitation, admittedly, the appeal was filed in time but it was dismissed after the expiry of the period of limitation. If at all the petitioner was to be taken to task for aforementioned defect in the memorandum of appeal, this should have been done by the learned Additional District Judge by returning or rejecting his memorandum of appeal on the very day on which it was filed or soon thereafter but before the period of limitation was over, so that the petitioner could re-file it or prefer a fresh appeal within the period of limitation, after amending the memorandum of appeal or, as the case may be, drawing up the memorandum of appeal afresh by guarding against the defect which eventually resulted in the dismissal of his appeal. Due to expiry of the period of limitation by the time of passing of the impugned judgment and decree, the petitioner was debarred from filing fresh appeal. To put it differently, by not acting in time, the learned Additional District Judge let the period of limitation expire and thus deprived the petitioner of his valuable right of appeal. It is strange that the learned Additional District Judge was mindful of the accrual of valuable right to the respondent due to running out of the period of limitation but was oblivious of the denial of valuable right of appeal to the petitioner due to expiry of the said period, for which he (learned Additional District Judge) was partly responsible. This attitude of the learned Additional District Judge can hardly be countenanced. In the circumstances of the present case, therefore, running out of the period of limitation did not warrant refusal of amendment sought by the petitioner.
19. Upshot of the above discussion is that the petitioner's case was eminently fit case for allowing desired amendment in the memorandum of appeal. By refusing that amendment, the learned Additional District Judge committed an illegality inasmuch as his order offends against mandatory provisions contained in second part of section 153 of the Code of Civil Procedure. In any case, his order militates against the principles of justice, equity and good conscience. Thus, even if he had discretion in the matter he did not exercise it judiciously. This makes out a case of material irregularity on his part. Looked at from any angle, his order refusing the amendment calls for interference by this Court in exercise of its revisional jurisdiction.
20. Question which now falls for consideration is as to what order should appropriately be made in the present state of affairs. As already indicated, although the learned Additional District Judge heard the appeal on merits as well yet he did not record his findings on merits, so as to obviate the necessity of remanding the appeal in the event of my not upholding his order regarding refusal of amendment in the memorandum of appeal or in case of my not endorsing his view in the matter of dismissal of the appeal on a technical ground, namely, that it was directed against the so-called order made by the learned Civil Judge and not against the judgment and decree passed by him.
Since I do not approve of his refusal to allow amendment in the memorandum of appeal and the dismissal of the appeal on the said ground, remand of appeal is in evitable. I wish the learned Additional District Judge had saved the parties of another round of litigation by recording his findings on the merits of the case also, especially when he had heard arguments in this behalf as well.
21. In result, I accept this civil revision and set aside the judgment and decree passed by the learned Additional District Judge by which the appeal was dismissed by him. I also set aside the order of the learned Additional District Judge dismissing petitioner's application for amendment of the memorandum of appeal and allow the desired amendment by accepting the said application.
Accordingly, the appeal is remanded to the learned Additional District Judge with the direction that he shall afford reasonable opportunity to the petitioner to file amended memorandum of appeal and then re-decide the appeal in the light of above observations and according to law. Parties are left to bear their own costs.
22. Learned counsel for the respondent prays that the learned Additional District Judge may be asked to re-decide the appeal quickly. There is no objection from the other side. I, therefore, direct the learned Additional District Judge to decide the appeal afresh within three months of the receipt of copy of this judgment.
23. In view of what has happened in this case, I would like to add, for future guidance of the learned Additional District Judge and other members of the subordinate judiciary, that they should demonstrate mental alertness at the time of entertaining new cases, in the form of suits, appeals, applications, etc.. If the Presiding Officer of a Court finds that a plaint, application or memorandum of appeal is not entertainable on the very face of it, he should return or reject it immediately so as to enable the party initiating it to re-file it or come up with a fresh one in the light of his observations Or directions, as the case may be, before running out of the period of limitation prescribed therefor.
If, on the other hand, it is then entertained but subsequently some defect is discovered by the Presiding Officer or is pointed out to him, appropriate order in this regard should be made expeditiously and in any case well before expiry of the period of limitation so that if the matter cannot proceed due to such defect, the party may file a fresh one within the said period, if permitted by law. If the defect is curable, under law, and the party responsible therefor seeks permission to make amends, such permission may be accorded on such terms and conditions as may be deemed fit, unless the justice, requires otherwise.
24. Policy of law is that, as far as possible, cases should be decided on merits rather than on the basis of technicalities. Procedure is laid down to enable the parties to seek justice and not to stop them for so doing. If justice is denied due to procedural flaws which can be removed as aforesaid, or are otherwise of little consequence, it is nothing short of sacrificing justice at the altar of technicalities. This, to say the least, has no warrant in law or equity.
25. Judicial officers should spare no efforts to finally resolve disputes brought before them so as to avoid multiplicity of proceedings. If full hearing of a case is done, all points involved therein should, in the absence of special reasons to be recorded, be decided so as to obviate the necessity of remand of the case in the event of reversal of finding on any of those points. This, besides being conducive to convenience of the parties, would be in consonance with the spirit of law.