1. ' HAZIQUL KHAIRI, J.---By this order I will dispose of C.M.A. No,4419 of 1987 and C.M.A. No,4750 of 1987 both filed in this suit for recovery of Rs,2,00,000 under Order 37, Rule 2, C.P.C. In the former application under Section 151, C.P.C. The defendant has prayed for setting aside the order dated 13- 9-1987 passed in C.MA. No,2506 of 1987 and for its rehearing, whereas in C.MA. No,4750 of 1987 u/s 151, C.P.C. The plaintiff has prayed that in view of non-compliance of order dated 13-9-1987, the defence of the defendant be struck off and suit be decreed.
2. ' Before I take up the order dated 13-9-1987, it will be fruitful to refer to the background of the case.
3. After the institution of the suit summons under Summary Chapter was issued to the defendant, who on 24-1-1987 filed C.MA. No,350 of 1987 under Order 37, Rule 3, C.P.C. For leave to appear and defend the suit. On 12-4-1987 unconditional leave to appear and defend the suit was granted to the defendant with directions to file written statement within three weeks. Since the written statement could not be filed within time, on opening of the Court after Summer Vacations viz. 3-8-1987 the defendant filed C.MA. No,3536 of 1987 for extension of time for filing written statement (which was filed alongwith it) upto that date. It was stated by the defendant that he was a resident of Faisalabad and the written statement signed and verified by him was received late in Karachi and due to Summer Vacations could only be filed after Summer Vacations on re-opening of the Court on 3-8-1987. Earlier the plaintiff had filed C.MA. No,2506 of 1987 under Order 47, Rule 1, C.P.C. For review of the order dated 12-4-1987 whereby the defendant was granted unconditional leave to appear and defend the suit. Another application bearing C.M.A. No,3509 of 1987 was also moved by the plaintiff under Order 8, Rule 10, C.P.C. Praying for passing of a decree against the defendant upon his failure to submit written statement within time.
4. ' All these three applications came up for hearing on 13-9-1987 when the matter was also fixed for orders on office note as written statement was not filed in time by the defendant. The order dated 13-9-1987, however, reads as follows:- "1. For hearing of C.MA. No,2506/87
2. -do- No,3536/87 (Notice issued)
3. -do- No,3509/87 (Notice issued)
4. For Orders as W/S is not filed in time by the defendant. 13-9-1987. Mr.Ch.Muhammad Abdullah, Advocate. Mr.Iqbal Kazi, Advocate. 1&2.
5. ' By consent allowed. The written statement filed by the defendant be brought on record.
3. Mr.Iqbal Kazi requests for time to file counter-affidavit. Adjourned.
6. Sd/- JUDGE."
7. ' The position thus emerging out of the order dated 13-9-1987 is as follows:-
(a) Earlier order granting unconditional leave to appear and defend the suit to the defendant is set aside;
(b) Leave to appear and defend the suit is granted to the defendant upon his furnishing security equal to the suit amount;
(c) Written statement is brought on record. In other words C.M.A. No,3536 of 1987 is allowed seeking permission to file written statement upto 3-81987;
(d) In reply to C.M.A. No,3509 of 1987 under Order 8, Rule 10, C.P.C. The defendant seeks time to file counter-affidavit;
(e) No order is passed by the Court on the office note appearing at Serial No,4 above to the effect that the defendant has not filed written statement within time.
8. ' C.M.A.No, 4419 of 1987 is supported by an affidavit sworn in by the clerk of the Advocate for the defendant stating that there was some mis-apprehension on the part of the Advocate inasmuch as he did not give any consent to the grant of the plaintiffs application for review being 3509 of 1987 and for imposition of condition as to security. The plaintiff while opposing this application has stated that the clerk of the defendant's counsel is neither a proper person representing the defendant nor has any interest in the subject-matter and as such his affidavit cannot be considered under law. Subsequently, however, the learned counsel for the defendant had also filed his personal affidavit affirming that there was misapprehension on his part and he had never given consent to grant of C.M.A. No,2506 of 1987.
9. ' It is contended by Mr.Iqbal Kazi, learned counsel for the defendant that it is inconceivable that a defendant to whom unconditional leave to defend the suit has been granted would agree to conditional leave as to furnishing security when there was a technical and justifiable delay in filing written statement which was likely to be condoned. Apart from this the order itself unequivocally states that "the written statement filed by the defendant be brought on record" leaving no ambiguity whatsoever. Perhaps in view of this clear order, it was not considered necessary to pass any separate order on office note. There was, therefore, an error on the face of record or some misconception of the Court which can be correcte d by the Court on discovery. Reliance was placed on M. M. Bcatholicas v. M.P.Athansius, AIR 1954 SC 543, in which it was held as under:- "The Privy Council in `Madhu Sudan v. Mt.Chandrabati, AIR 1917 PC 30(I) also suggested that the proper procedure was to move the Court in whose judgment the error is alleged to have crept in. In this case, as already stated, an affidavit was filed before the appeal Court itself while the Chief Justice and Nokes, J., were still in office. Further if, as laid down in the judgment of this Court to which reference has been made, the proper procedure is to apply to the Court whose judgment is said to be founded on a misconception as to the concession made by the learned Advocate appearing before it, by what procedure, unless it be by way of review, could that Court be moved?
10. Indeed, the Madras case referred to in the judgment of this Court freely indicates that the application should be by way of review.
11. ' Patnajali Sastri, J. (as he then was) sitting singly in the Madras High Court definitely took the view in `Govinda Chettiear v. Varadappa Chettiear', AIR 1940 Mad. 17(J) that a misconception by the Court of a concession made by the Advocate or of the attitude taken up by the party appears to be a ground analogous to the grounds set forth in the first part of the review section and affords a good and cogent ground for review. The learned Attorney-General contends that this affidavit and the letters accompanying it cannot be said to be part of 'the record' within the meaning of Order 47, Rule 1.
12. ' We see no reason to construe the word 'record' in the very restricted sense as was done by Denning L.J., In re 'Rex V. Northumberland Compensation Appeal Tribunal Ex Parte Shaw', (1952) 1 KB 338 at pp.351-352(K) which was a case of certiorari and include within that term only the document which initiates the proceedings, the pleadings and the adjudication and exclude the evidence and other parts of the record.
13. ' Further, when the error complained of is that the Court assumed that concession had been made when none had in fact been made or that the Court misconceived the terms of the concession or the scope and extent of it, it will not generally appear on the record but will have to be brought before the Court by way of an affidavit as suggested by the Privy Council as well as by this Court and this can only be done by way of review. The cases to which reference has been made indicate that the misconception of the Court must be regarded as sufficient reason analogous to an error on the face of the record. In our opinion it is permissible to rely on the affidavit as an additional ground for review of the judgment."
14. ' Learned counsel then referred to Manager, Jammu and Kashmir State ' Property in Pakistan v. Khuda Yar and another PLD 1975 SC 678, wherein the Supreme Court had held:- "The proposition could hardly be disputed that the principal object behind all legal formalities is to safeguard the paramount interest of justice. In fact while considering the importance of legal technicalities and rules of procedure in the administration of justice, it is inevitable to recall the various evolutionary stages in the transition from justice in accordance with law of modern society and the conflict between equity and law in judicial history. It cannot be denied that legal precepts were devised with a view to impart certainty, consistency and uniformity to administration of justice and to secure it against arbitrariness, errors of individual judgment and mala fide."
15. ' Earlier in Imtiaz Ahmed v. Ghulam All and others, PLD 1963 SC 382, the following views were expressed by the Supreme Court of Pakistan:- "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."
16. ' Learned counsel for the plaintiff, on the other hand, has called in question the very maintainability of C.MA. 4419 of 1987 on the ground that the Court clerk has no locus standi to file affidavit in support of the application whereas the personal affidavit of the learned Advocate was filed after about one and a half years. According to him, the Court clerk was also not competent to understand the correct factual position of the case. He also did not disclose the source of his information. Further, Rule 57 of the Chief Court Rules envisages that a deponent must express clearly in his statement in an affidavit as to how much of it is true to his knowledge and how much of it is true to his information or belief. Again under Rule 58 in every affidavit it must be shown that the deponent had the qualification to express his opinion by reference to the length of experience, acquaintance with the person or matter or means of the knowledge of the deponent which is wanting in the present case. In support, learned counsel has also placed reliance on AIR 1914 All 197 in which it was held:- "The intention of the law is and it cannot be too often repeated that an affidavit must contain nothing but bare facts known to the person who makes the affidavit either personally or upon information from a source which he believes to be a correct source and one on which reliance can be placed. Further, as it is for human beings to make a mistake in reciting a fact, the law requires that the contents of affidavits should be carefully read over to the deponents in words understood by them and vouched by them to be correct."
17. ' The contents of affidavit filed by the Court clerk disclose that whatever he has stated therein is true to his knowledge and, therefore, there was no necessity for him to state as to how much thereof was true to the best of his information. A Court clerk may be having personal knowledge as to whether the Advocate in whose employment he is, has given his consent in any matter or not.
18. No doubt, a perusal of the order dated 13-9-1987 will lead to incomprehensible rather absurd results. How can on one hand the written statement filed by the defendant be ordered to be brought on record and delay in filing it condoned and on the other hand by a Court order the defendant is permitted leave to defend the suit upon his furnishing security. Time is also granted to him to file counter-affidavit to C.MA. No,3609 of 1987 under Order 8, Rule 10, C.P.C. Filed by the plaintiff praying for passing a decree against him upon his failure to file written statement within time. This is not a mere anomaly of the consequence which can be overlooked but a case of gross misconception on the part of the learned counsel and of the Court itself as the two diametrically opposite orders cannot be allowed to stand side by side Tanta mounting to error on the face of record, preventing the very trial of the suit. The order dated 13-9-1987 in so far as it states that "the written statement filed by the defendant be brought on record" is clear, unambiguous and unqualified and must be given effect to. Accordingly, I set aside by way of review the order dated 13-9-1987 passed only in C.MA. Nos.2506 of 1987 and dismiss C.MA. No,4750 of 1987 filed by the plaintiff. Since the written statement of the defendant has already been placed on record, there is no necessity for hearing or re-hearing of either C.M.As. Nos.2506 of 1987 or 4419 of 1987 or 3509 of 1987 or the office note all of whom now become redundant and automatically stand disposed of by this order.