Facts giving rise to this civil revision are that the respondents, Khairat Hussain and others, filed a suit against the petitioners, Khushi Muhammad and. Others, which was decreed by the Civil Judge, Wazirabad, District Gujranwala, on 24th April, 1975. An appeal was, therefore, taken by the petitioners before an Additional District Judge of Gujranwala. The appeal was admitted by him to a regular hearing. In the prayer made in the memorandum of appeal, which was in Urdu, the petitioners prayed for setting aside of the decision of the learned Civil Judge by referring to it as and not as judgment and/or decree. During the pendency of the appeal, how were, they filed an application for amendment of the memorandum of appeal so as to pray, in so many words, that his judgment and decree be set aside. Their application as well as the appeal were dismissed by the learned Additional District Judge holding that the appeal was not competent. View taken by him was that the appeal was directed against the judgment of the learned Civil Judge and not against the decree granted by him. Feeling aggrieved by the judgment and decree passed by the learned Additional District Judge, the petitioners have come up in revision to this Court.
2. It was contended by learned counsel for the petitioners `that it was evidence from the memorandum of appeal, especially the heading thereof, that the appeal was directed against the decree passed by the learned Civil Judge and, therefore, the learned appellate Court should not have dismissed the appeal on the ground that it was not so directed. Argument proceeds that even if it was not clear from the memorandum of appeal that their attack was against the decree, amendment of the memorandum of appeal sought by the petitioners should have been allowed so that real dispute between the parties could be decided. It was urged by him that a party could not be non-suited due to inartistic drafting of pleadings nor technicalities should be allowed to defeat the ends of justice. In this connection, reliance was placed by him on Imtiaz Ahmad v.
Ghulam Ali and 2 others (PLD 1.963 SC 382) and Khan Azizul Hassan Khan v. Haji Muhammad Ismail PLD 1972.Lah. 142.
3. On the other hand, it was submitted by learned counsel for the respondents that according to the memorandum of appeal, the appeal was directed against the judgment passed by the learned Civil Judge and since an appeal could be filed against the decree and not the judgment it was rightly dismissed by the learned Additional District Judge. As. For the application of the petitioners for amendment of memorandum of appeal, his plea was that it was a belated attempt to make good the deficiency in the memorandum of appeal and, therefore, deserved to be dismissed. He relied on Kedar Nath v. Lalji Sahai and another (1889) (I.L.R. 12 All. 61) to support his contention.
4. A perusal of the memorandum of appeal would show that at the top of it there is a chart mentioning the date of decision of the suit by the learned Civil Judge, namely, 24th April, 1975. Then there is heading of the appeal which reads as follows:-- At the end, the prayer is to the effect that the made on 24th April, 1975 may be set aside and the suit of the respondents dismissed.
5. As stated above, the disputed memorandum of appeal was in Urdu. The word "decree" is of English language and one of its meanings given in Fallon's English Urdu Dictionary by S.W. Fallon is Same is the position of Standard Urdu-English Dictionary by the late Baba Dr. Abdul Raq and Feroz sons English to English and Urdu English Dictionary (New Edition). Learned Additional District Judge has not referred to any dictionary or other authority in B support of his view that by assailing the I'll, of 24th April, 1987, the petitioners wanted to challenge the judgment of the learned Civil Judge and not the decree passed by him in pursuance of that judgment. In legal circles, the word "judgment" is generally translated ash and not as which word is occasionally I used as Urdu equivalent of the English word "order". According to Fallon's Dictionary also one. Of Urdu rendering of the word "judgment" is In the other two dictionaries, mentioned above, for the word sometimes the English figures as one of meanings of word "judgment". No doubt, sometimes, the English word "decree" is written as in Urdu, but in view of what has gone above, use of the word"", for the word "decree", too is not far wrong. It is noteworthy that in the heading of memorandum of appeal, the word also some how, does appear. Further, in the prayer, dismissal of the suit was sought, which could not be ordered without setting aside the decree. In the circumstances, the learned Additional District Judge was not justified in taking the view that the petitioners were impugning the judgment and not the decree passed by the learned Civil Judge.
6. It may also be pointed out that the memorandum of appeal was accompanied by certified copies of the judgment and decree passed by the learned Civil Judge, on 24th April, 1987. There is no copy of any order, of even date, appended thereto. All this leaves little room for doubt that by filing appeal, the petitioners wanted to avoid not only the judgment but also the decree passed in the suit. These aspects of the matter were, unfortunately, overlooked by the learned Additional District Judge.
7. The memorandum of appeal, read with the documents annexed thereto, clearly demonstrated that real dispute between the parties was with regard to judgment and decree passed by the learned Civil Judge. Second part of section 153 of the Code of Civil Procedure makes it obligatory for a Court to allow "all necessary amendments " ...."for the purpose of determining the real question or issue raised by or depending" on any proceedings between parties to a suit. It is not denied that section 153 is not only applicable to suits but also to other proceedings, including appeals. The learned Additional District Judge should, therefore, have allowed amendment of memorandum of appeal, prayed for by the petitioners, so as to enable them to clarify that their appeal was directed both D against judgment as well as the decree passed by the learned Civil Judge. His refusal to do so amounts to an illegality because his order in this respect is in contravention of mandatory provisions of the second part of section 153 of the Code of Civil Procedure.
8 Subrule (1) of rule 3 of Order XLI of the Code of Civil Procedure also empowered the learned Additional District Judge to reject or return the rnemorandum of appeal or order its amendment, suo motu, if it was not in order when it was presented before him for the first time. He, however, failed to take any of these steps at that stage of proceedings. Had he rejected the memorandum of appeal o returned it to the petitioners for amendment so as to expressly assail the trial Court's decree instead of admitting it to a regular hearing, they would have teen able to re-file the amended memorandum of appeal or, as the case may be, file fresh memorandum of appeal, keeping in view his reasoning, within the period of limitation. Learned Additional District Judge, however, chose to dismiss the appeal after running out of the period of limitation when a fresh appeal could not be preferred by them. By not acting, in time, in terms of the provisions of sub-rule
(1) of rule 3 of Order XLI of the Code of Civil Procedure, the learned Additional District Judge failed to exercise the jurisdiction vested in him and thus deprived the petitioners of their valuable right of appeal.
9.Policy of law is that all matters brought before a Court should be finally decided so as to save the parties from multiplicity of proceedings. With this end in F view, provisions for amendment of pleadings, addition and omission of parties, framing of new issues, recording of additional evidence, amendment of memorandum of appeal, etc., have been incorporated in the Code of Civil Procedure. It is regretted that, in the instant case, provisions with regard to amendment of memorandum of appeal were not made use of by the learned Additional District Judge. 1n the first place, he did not order amendment of memorandum of appeal, suo motu, under sub-rule (1) of rule 3 of Order XLI of the Code of Civil Procedure and then he refused amendment of memorandum of G appeal, when prayed for by the petitioners, by disregarding the provisions of second part of section 153 thereof. The learned Additional District Judge took a technical and not a pragmatic view of the matter. He looked at the literal wording of the memorandum of appeal instead of appreciating the substance thereof. He failed to comprehend the real intention of the petitioners which was manifest from the grounds taken in the memorandum of appeal. He was oblivious of the fact that lack of care on his part would take away from the petitioners their valuable right of appeal. As explained above, in view of second part of section 153 of the Code of Civil Procedure, he was duty bound to allow the amendment sought by the petitioners. Even if he had discretion in this respect, it was not exercised judiciously because his order, refusing the amendment, militates against justice, equity and good conscience. I, therefore, hold that the learned Additional District Judge committed material irregularities, if not illegalities, in dealing with f the appeal taken to him, and that calls for interference by this Court in exercise of its revisional jurisdiction.
10. Similar views were recently expressed by me in another case, namely, Qadeer Shamas v.
Winston Bakhsh reported as PLD 1989 Lah. 523. My reasoning in the case of Qadecr Shams is, by and large, applicable to this case also.
11. My view is fortified by the law laid down in Imtiaz Ahmad v. Ghulam Ali etc. (PLD 1963 S.C.382) and Khan Azizul-Hassan Khan v. Haji Muhammad Ismail (PLD 1972 Lah. 142), cited by learned counsel for the petitioners. In the case of Imtiaz Ahmad it was held by the Supreme Court that technicalities should J not stand in the way of doing justice. Speaking for the Court, B.Z.Kaikaus, J.
Observed.
"I must confess that having dealt with technicalities for more than forty years, out of which thirty years are at the Bar, I do not feel much impressed with them. I think the proper place of procedure in any system of administration of justice is to help and not to thwart the grant to the people of their rights. All technicalities have to be avoided unless it be essential to comply with them on grounds of public policy. The English system of administration of justice on which our own is based may be to a certain extent technical but we are not to take from that system its defects. Any system which by giving effect to the form and not to the substance defeats substantive rights is defective to that extent. The ideal must always be a system that gives to every person what is his."
Principle laid down in the case of Imtiaz Ahmad was, however, not followed by the learned Additional District Judge inasmuch as he non-suited the petitioners just on a technical ground, namely, so-called misdescription of the decision of the learned Civil Judge in the memorandum of appeal. In other words, he made use of the procedural law for denying justice instead of making use of remedial measures provided therein for promoting justice. In the case of Khan Aziz-ul- Hassan, it was held by Karam Elahi Chauhan, J., that the Court is duty bound to apply law even if it is not cited by a party. This duty was not discharged by the learned Additional District Judge in the instant case because, as explained above, he did not act in terms of the provisions of sub-rule (1), of rule 3 of Order XLI of the Code of Civil Procedure and section 153 of the said Code, especially the second part thereof.
12. This brings me to the case of Kedar Nath, relied upon by learned counsel for the respondents. 1n that case, an appeal was erroneously presented to the High Court of Allahabad as a first appeal from order, mentioned in section 87 of the Transfer of Property Act, 1882. Since the said order was passed in execution of the substantive foreclosure decree it was held by the High Court to be a decree under section 244 read with section 2 of the Code of Civil Procedure 1882, upon the stamp payable in respect of such order. When it was prayed on behalf of the appellant that the appeal may be converted into a first appeal the High Court did not allow such conversion as, in the opinion of the High Court, it was likely to create confusion. Observations made in this behalf read as follows: "Mr. Ram Prasad for the appellant has upon this state of things asked us to convert this appeal into a first appeal, and to direct that it be so registered. But we are of opinion, with reference to the practice of this Court, that this procedure would be erroneous. There is no provision for it in the Code of Civil Procedure; and if we were to allow the request thus made, we should be holding that in some case where an application for revision has been made under section 622 of the Civil Procedure Code, such application might be converted into a first appeal or into a second appeal or into a miscellaneous appeal, and this practice would no doubt introduce an element of confusion in the working of the Court, which we do not think is justified by any practice of the Court or by any authority of case law".
13. A careful comparison of Kedar Nath's case with the case in hand would show that there is vast difference in the facts of the two cases. Further, the case of Kedar Nath was decided under the provisions of Code of Civil Procedure of 1882 and not under the Code of Civil Procedure of 1908 which is now in force. Provisions of the two Codes are not the same. Conversion of proceeding of one description into proceeding of another desicription, such as conversion of a civil revision into an appeal and vice versa. Which was not liked by the Allahabad High Court, is permissible under the law now holding the field. Karamat Hussain and others v. Muhammad Zaman and others (PLD 1987 SC 139), Ibrahim v. Muhammad Rafique (PLD 1964 (W.P) Lah. 644) and Sreemati Guru Dasi v.
Sarbananda Mahaldar and others (PLD 1961 Dacca 243) are some of the authorities allowing conversion of an appeal into a revision and vice versa. Even otherwise technical view taken in the case of Kedar Nath is not in consonance with the aforementioned observations of the Supreme Court in the case of Imtiaz Ahmad. With utmost respect for the learned Judges of the Allahabad High Court, who decided the case of Kedar Nath, in the existing state of law and in the circumstances of the case before me, therefore, the opinion expressed by them does not furnish justification for refusal of amendment of memorandum of appeal in the case in hand or for dismissal of the appeal on a technical ground.
14. As explained above, in the case before me it was abundantly clear from the memorandum of appeal that the appeal of the petitioners was directed against the judgment and decree passed by the learned trial Court and not against the judgment only. Even if the matter was not so clear, the learned Additional District Judge should have, suo motu, ordered amendment of the memorandum K of appeal when it was placed before him for the first time or subsequently on the request of the petitioners, when it was made by means of an application. If he was not in favour of amendment of memorandum of appeal, he should have rejected or returned it within the period of limitation. Nothing in this regard was, however, done by him, till the appeal was dismissed by him after expiry of the period of limitation. All this amounts to material irregularities, if not illegalities on his part, calling for interference by this Court.
15. Resultantly, I accept this civil revision, set aside the order of the learned Additional District Judge by which the petitioners' application for amendment of memorandum of appeal was not allowed as well as his judgment and decree whereby the petitioners' appeal was dismissed as being incompetent. I also permit the said amendment and remand the appeal to the learned Additional District Judge with the direction that he shall allow reasonable opportunity to the petitioners to file amended memorandum of appeal and then proceed to hear the appeal on merits and decide it within four months of the receipt of the copy of this judgment. There shall be no order as to costs.