' Brief facts and background of the instant Civil Revision are that Civil Suit No,383 of 1990 and Civil Suit No,654 of 1992 were filed by Muhammad Bakhsh etc. Against the respondents. In both the suits parties were the same but disputed property was different. Both were contested, issues were formulated, evidence was produced by the parties and vide judgment and decree, dated 19-1-1994 passed by the learned trial Court both the suits were dismissed. The petitioner applied for copies of the judgment and decree on 20-1-1994 in both the suits and obtained the same on 6-2-1994 and filed appeal on 7-2-1994, but wrongly placed the judgment and decree on both the memorandum of appeals. The judgment and decree of civil suit No,383 of 1990 was placed on the memo. Of appeal of Civil Suit No,654 of 1992 and the judgment and decree of Civil Suit No,654 of 1992 was placed on the memo. Of appeal of Civil Suit No,383 of 1990. Both the appeals were checked. No objection was offered by the office. Those were admitted to regular hearing on 9-2-1994 and vide judgment and decree, dated 26-5-1994, one appeal in Civil Suit No,654 of 1992 was accepted and the case was remanded while the second appeal was fixed for arguments. On 14-6-1994 during arguments of parties, it transpired to the learned Court that judgment and decree is wrongly placed on both the memo of appeals. The petitioner filed an application supported by an application for condonation of delay on 22-6-1994 stating that both the judgments and decrees are wrongly placed on two separate memo. Of appeals, therefore, the record of the appeal (of Civil Suit No,654 of 1992 which stood decided and case was remanded) be summoned and may be allowed to be placed on its correct appeals. The application was replied and contested. The learned Appellate Court without summoning the record vide judgment and decree, dated 19-3- 1998 dismissed the appeal for non-compliance of the provisions of Order 41, Rule 1, C.P.C. Without discussing the merits of the case and without deciding the aforesaid application. The petitioner being aggrieved has challenged the same through the instant Civil Revision. In fact rejection of memo. Of appeal for noncompliance of Order 41, Rule 1, C.P.C. Is a decree which is appealable but in the instant case the valuation for the purposes of court-fee and jurisdiction is Rs,400, therefore, Regular Second Appeal is hit by section 102, C.P.C., therefore, the instant case is of Civil Revision.
Reliance is placed on "Muhammad Latif v. Mst. Ghulam Fatima and others" (PLD 1955 Lahore 487).
2. The arguments advanced by the learned counsel for the petitioner are that there was no negligence or omission on the part of the petitioner to obtain copies of the judgment and decree.
He did obtain the certified copies of the judgments and decrees on 9-2-1994, which unfortunately were inadvertently placed by the clerk of the learned counsel on wrong memo. Of appeals. The learned Appellate Court without even summoning the record and without satisfying itself that the petitioner's case was not a case of Order 41, Rule 1, C.P.C., straightaway dismissed the appeal of the appellant. This judgment is not only erroneous but also perverse that grave injustice has been caused to the present petitioners.
3. Learned counsel for the respondents submits that the correct decree-sheet was not annexed with the memo. Of appeal. It came to the knowledge of the appellant on 14-6-1994, but he gave an application on 22-6-1994 and he was bound to explain the delay of each day. He further argued that where there are express provisions of law, then provision under section 151, C.P.C. Does not apply as the learned Appellate Court could dispense with the judgment of the learned trial Court but could not dispense with the decree-sheet which is a mandatory provision of law, therefore, the appeal was rightly dismissed.
4. I have heard the learned counsel for the parties and carefully perused the record. This fact is admitted by the learned Appellate Court that the impugned judgments and decrees were placed wrongly on two memo. Of appeals filed between the same parties in different suits challenging Mutation No,709, dated 28-11-1952, decided on 19-1-1994. It is really surprising that the learned Appellate Court has not even read and perused the impugned judgment and decree passed by the learned trial Court and decided the appeal is Civil Suit No,654 of 1992 and also omitted to see that the correct judgment and decree was not placed with the appeal which was being accepted by the learned Appellate Court and the case was remanded. When firstly the matter came to the knowledge of the learned Appellate Court that the judgments and decrees are wrongly placed on both the memo. Of appeals in Civil Suit No,654 of 1992 and Civil Suit No,383 of 1990, it was necessary for the' learned Appellate Court to summon the record of the learned trial Court in Civil Suit No,654 of 1992 and satisfy itself whether the contention made by the petitioner in application that the impugned judgment and decree of the instant case is wrongly placed with the memo. Of appeal in Civil, Suit No,654 of 1992 and further see whether the requirements of provisions of Order 41, Rule 1, C.P.C., which are directory in nature stand satisfied or not, could have decided the application first and then decide the appeal. The learned Appellate Court in a slipshod manner without holding an inquiry rejected the memo. Of appeal under Order 41, Rule 3, C.P.C., which was admitted to regular hearing by him and the record of the learned trial Court had been summoned where the impugned judgment and decree did exist and it could be found out from the record that the petitioner/appellant has really applied for the certified copies of the judgments and decrees within the requirement of Order 41, Rule 1, C.P.C., "Mst. Ghulan and others v. Punjab Province" (1992 CLC 1204), it is held that inquiry is necessary to be held by the Appellate Court to discover the truth as without it dismissal of appeal could not be upheld. The case was remanded for holding inquiry.
5. So far as the objection of learned counsel for the respondent is concerned that in view of express provisions of Order 41, Rule 1, C.P.C., the provision of section 151, C.P.C. Does not apply I am afraid I am not convinced by the arguments advanced by the learned counsel for the respondent. The Court in all matters is bound to hold an inquiry to discover the truth whether the party is at fault or not "Tahir and 2 others v. Ahmad Bakhsh" (1991 MLD 06) and once record in appeal is summoned, it is always within the competence of the Court to see whether the party has obtained the copies of judgment and decree in time and placed the same within limitation or whether the appeal is filed improperly, then the Court cannot reject the memo. Of appeal under Order 41, Rule 3, C.P.C. "Mst.
Ghulan and others v. Punjab Province" (1992 CLC 1204).
6. In the instant case copy of the judgment and decree was filed within limitation but due to the mistake of the clerk those were wrongly placed on two memo. Of appeals in which the parties were same and both the suits were decided on the same day. From a cursory look it seems a bona fide mistake.
7. So far as the application under section 151, C.P.C. Is concerned, application under Order 41, Rule 1 read with section 151, C.P.C. Supported by an application for condonation of delay was given by the appellant, the provisions under section 151, C.P.C. Are intended by the Legislature for advancement of the justice as all these rules framed under the Code of Civil Procedure do not allow to defeat the ends of justice., It is always the duty of a Judge to apply law and satisfy itself for its just application.
The Court must always avoid technicalities to defeat the ends of substantial justice. The Court has inherent power to do justice and to redress a wrong instead of heading to objections and trying to dispose of a case on mere technicalities.
8. In the present case both the memo. Of appeals were checked by the Court officials. No objection was made that the judgment and decrees are wrongly placed. Both the appeals were admitted to regular hearing. The records of both the appeals were summoned. One appeal was decided on merits and was accepted and case was remanded to the learned trial Court. It is really surprising that the learned Appellate Court did not find out that the appeal which is being accepted and remanded to the learned trial Court does not bear the correct decree-sheet while the other appeal was pending adjudication the matter came to the notice of learned Appellate Court. Once the matter came to the knowledge of learned Appellate Court that there was no negligence on the part of the parties, it was the clerk of learned counsel of the appellant just appending wrong decrees on wrong memo. Of appeals. Since both the suits were decided on the same day between the same parties the decree-sheet was drawn on the same day between the same parties it was a bona fide mistake of the clerk of learned counsel for the appellants unchecked by the learned counsel for the appellants who placed the wrong decree on wrong memos. Of appeals, the Court could have decided and exercised his power ex debito justice to do that real and substantial justice for the administration of which the Court had power to hold an inquiry into the bona fides of the parties and that decree-sheet of the instant case did exist on the appeal already decided by learned Appellate Court and if it did exist then the party who was not at fault should not suffer as the Court was already in knowledge that the appeal decided by it had a wrong judgment and decree appended with it how could the Court adopt contrary view in similar cases on similar matter. It is held in "Nanda Kishore Singh v. Ram Golam Sahu" Indian Law Reports Calcutta Series 955 that the Court has inherent power and the existent of the inherent power is to do justice based on sound judicial principles.
9. Therefore, I accept the instant Civil Revision, set aside the judgment and decree, dated 19-3-1998 passed by the learned Appellate Court and remand the case to the learned Appellate Court to summon the record in Civil Suit No,654 of 1992, hold an inquiry and being satisfied that the party is not at fault and misplacement of decree is sheer bona fide mistake after fulfilment of necessary legal formalities may decide the appeal on merits.
10. Parties are directed to appear before the learned District Judge, Bhakkar on 20-1-2000.