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Civil Appeals Nos. 16 and 17 of 1966, decided on 20th February 1968.

----Ss. 99 & 100 and O. XXXIII, rr. 4 to 8 Pauper suits‑Second appeal‑Application for permission to sue as pauper treated by trial Court as plaint without declaring applicant as pauper and without granting application under rr. 4 to 8 ‑ No objection thereto raised by other party in Courts below‑Objection not allowed to be raised in second appeal‑Such error, held, technical and immaterial and not affecting jurisdiction of Court‑Party cannot be made to suffer on account of the act of Court (error in procedure).

Painda Khan v. Tiwana P L D 1962 Lah. 92 ; Fort Gloster Jute Manufacturing Co. v. Chandra Kumar Das and another A I R 1920 Cal. 597 ; Vithal Balaji Kasar v. Chunnital Bhawanidas A I R 1935 Nag. 33 and (Kunwar) Jang Bahadur v. Bank of Upper India Ltd. A I R 1928 P C 162 rel.

The Punjab Province v. Kanwar Latif Ahmad Khan P L D 1958 S C (Pak.) 195 distinguished.

A. M. Malik for Appellant.

M. Y. Cheema for Respondent.

Date of hearing : 8th January 1968.

-- The present two appeals filed by Abdul Hamid defendant‑appellant have arisen out of the following facts :‑

Abdul Hamid appellant brought a suit for restitution of conjugal rights against Mst. Maqsood Begum, his wife in the Court of Sub‑Judge, Mirpur on 2‑2‑62. The defendant had not yet been served with the notice in that suit when Mst. Maqsood Begum brought a cross suit against him for dissolution of her marriage in forma pauperis. These two suits were consoli dated by the order of the learned trial Judge dated 13‑11‑63 and thereafter a joint trial was held in them. The learned trial Judge without going into the question of pauperism and giving a finding to that effect had treated her application as a plaint and consolidated the suits. This procedural defect in the case escaped the notice of the Court as well the parties till the close of the proceedings and consequently the consolidated suits were disposed of by the trial Judge by a single judgment on 31‑5‑65. By that judgment the learned trial Judge decreed the suit of dissolution of marriage instituted by Mst. Maqsood Begum against Abdul Hamid and dismissed the cross suit of Abdul Hamid instituted for restitution of conjugal rights. Abdul Hamid appellant then filed two separate appeals Nos. 52 and 53 of the year 1965 in the Court of District Judge, Mirpur against the judgment and decree which after being heard were disposed of by a single judgment on 14‑2‑66. The appeals were rejected by the learned District Judge for the same reasons as those relied on by the trial Judge. Abdul Hamid has now filed the present two Appeals Nos. 16 and 17 of 1966 against the above judgment and decree of the District Judge.

In this Court Mr. A. M. Malik, learned counsel for the appellant has raised a preliminary objection to the effect that the decree for dissolution of marriage passed in favour of Mst. Maqsood Begum respondent by the trial Court and confirmed by the District Judge cannot be upheld as there was no proper plaint before the trial Judge as envisaged by the provisions of Order XXXIII, C. P. C. He has explained that Mst. Maqsood Begum respondent had filed the suit in forma pauperis and unless she had been declared as a pauper by the trial Court after an inquiry according to law and after granting her . application, the same had been registered as a plaint in the light of Rule 8, no proceedings could be held in her suit. He urged that there being no plaint before the Court the learned trial Judge had acted in clear contravention of the mandatory provisions of Order XXXIII, C. P. C. by consolidating the suit of the parties and then holding a joint trial in them. This according to the learned counsel was a good enough reason for accepting the appeal of Abdul Hamid and throwing out the suit of Mst. Maqsood Begum.

In his reply Mr. M. Y. Cheema, learned counsel for Mst. Maqsood Begum respondent has argued that the failure of the trial Judge to declare Mst. Maqsood Begum as a pauper and to register the application as a plaint was a procedural defect which did not affect the merits of the case or the jurisdiction of the Court. Such a procedural irregularity cannot vitiate the whole pro ceedings and may be deemed to have been waived by the act of the appellant who neither in the trial Court nor in the first or second appellate Court cared to point out such a defect in the proceed ings right up to the time of the arguments in this Court. It would be a great hardship for the respondent if her suit was dismissed on this score particularly when she was prepared to pay the Court‑fee chargeable on her plaint. He offered to deposit the Court‑fee in the Court immediately if her prayer for deposit of the same was conceded.

We have perused the record of the case and we are surprised to note that the learned trial Judge completely ignoring the provisions of Order XXXIII, C. P. C. proceeded to consolidate the suits one of which had not yet been registered according to law. On presentation of the application of Mst. Maqsood begum for permission to sue as a pauper he should have made a proper inquiry as prescribed by Rules 4 to 8 of Order XXXIII, C. P. C. and thereafter if in his opinion she deserved to be declared as a pauper pass an order to that effect directing the office at the same time that her application be registered as a plaint. He could consolidate the two suits after the above procedure had been observed by him. He has obviously not done that and acting in a careless manner consolidated the suits and then hastened to dispose them of. It is thus clear that it was not only the appellant who had failed to raise an objection in respect of the above procedural defect till the time, of the arguments in thus Court but the trial Court also had acted in such a manner that the respondent could be easily misled to believe that what the Court was doing was legally correct. In these circumstances we are constrained to say that on the one hand the conduct of the appellant amounted to a waiver of the right to raise an objection regarding the procedural defect with which the proceedings are suffering and on the other the trial Court was also responsible for creating the situation which resulted in prejudice to the respondent. We would, therefore, hold that it would result in great hardship to the respondent if the appellant was allowed to raise the objection about the procedural defect a this late stage in the second appeal and on the basis of it get the respondent non‑suited. It is well established principle or law that acts of the Court should not prejudice a party. In P L D 1962 Lah.92 the facts of which were that two separate suits for pre‑emption in respect of the same land were filed by two persons. They were consolidated and a decree according to law was passed by the trial Judge in favour of both of the pre‑emptors. It was ordered that in case T who had a right of pre‑emption superior to that possessed by P, deposited in the Court by 1‑3‑1955 Rs. 2,000 excluding the money already deposited by him in Court as one‑fifth of the sale price, he shall be entitled to get possession of the land, but if he did not deposit or pay the money before 1‑3‑55 his suit shall stand dismissed and P shall be entitled to get the posses sion of the land in dispute in case he deposited in Court by 1‑4‑1955 Rs. 2,000. excluding the money already deposited by him in Court. T did not deposit the money in Court, but on 1‑3‑55 the Judge, who had passed the decree, certified the payment of Rs. 1,600 to the vendee, who was also given the right to withdraw Rs. 400, which had already been deposited in Court as one‑fifth of the sale price under the orders of the Court. P deposited the money in Court on 28‑3‑1955 and sub sequently applied for possession of land in execution of the decree. The application of P was dismissed and it was held that he was not entitled to get the property in dispute. On appeal P contended that under Rule 14 of Order XX of the Civil Procedure Code, 1908 the decree could have directed that the price of the land was to be deposited in Court by the pre‑emptor within a certain time and that the implied direction in the decree that the price of the land could be paid outside the Court should have been ignored altogether:

"Held, although the implied direction in the decree that the price of the land could be paid out side the Court and need riot necessarily be deposited in it, offended against the clear provision of Rule 14 of Order XX of the Civil Procedure Code (1908) all the same T could not be penalized for carrying out its terms. The fact that the decree should not have contained anything to the effect that the money could be paid outside the Court, could not prejudice the party which had carried out that decree in its terms, because the acts of Court should not be allowed to prejudice any party. One of the principle to be acted upon by Courts is that every one is presumed to know the law, but the principle that acts of Court should not prejudice a party which has acted on the assumption that those acts were correct is just as applicable to proceedings in Court as the other principle already mentioned."

In the present case the Sub‑Judge treated the application of Mst. Maqsood Begum for permission to sue as a pauper as a plaint and did not take steps as enjoined by law to declare her pauper and then register the application as plaint. By his conduct he gave the impression to her that she had instituted a proper suit and that the proceedings did not suffer from any legal defect. Up to the time of the arguments in the second B appeal she was acting on the assumption that the act of Court in treating her original application as a plaint and then con solidating the same with the suit of the appellant was a correct one. As such she cannot be made to suffer on account of the act of the Court.

Now as for the objection of the learned counsel for the appellant that non‑observance of the mandatory provisions of Order XXXIII, C. P. C. has rendered the proceedings a nullity, we are of the opinion that in the circumstances described above and for the reasons to be given shortly it is not so in the present case. Order XXXIII of the C. P. C. has been enacted to serve a triple purpose (i) to protect the bona fide claim of a pauper (ii) to safeguard the interests of revenue and (iii) to protect defendant's rights not to be harassed. The pauper in this case has proved during the proceedings in the trial Court that she has a cause of action. She is also prepared to pay the Court‑fee admissible on the plaint and as such we need not go into the ingredient No. (1) any further. As for the second essential, L e. safeguard of the interest of the revenue, in view of the fact that the respondent is already prepared to deposit the necessary Court fee interests of revenue are not liable to suffer. Regarding the third essential, the defendant has had full opportunity to fight out the case and the question of his harassment by institution of a frivolous suit does not arise. It would thus appear that it is only the question of the non‑payment of Court‑fee admissible on the plaint which is involved in this case and it is to be ascertained from the circumstances apparent on the face of the record as to whether the failure of the Court to go into this question at the proper time amounts to such an error, defect or irregularity of procedure which can effect the merits of the case or the jurisdiction of the Court. In other words it is to be seen that if a decision which is correct on merits and is given in a case which is within the jurisdiction of the trial Court should or should not be upset merely for technical and immaterial defects. In the case before us the suits which have been consolidated by the order of the trial Court were within the pecuniary and local jurisdiction of that Court. The Court of the Sub‑Judge was fully competent to hold trial in both the cases and to adjudicate upon the questions involved in them. As such the jurisdiction of the Court cold not be said to have been affected by the non‑observance of the Rules 4 to 8 of Order XXXIII, C. P. C. by the learned trial Judge.

Now as to the fact whether or not merits of the cases were affected by the procedural error in question, we are again constrained to say that they were not. The merits of a case are said to be affected when the flaw or error has resulted in an error of judgment. The non‑payment of the Court‑fee or the holding of an inquiry according to the provisions of Order XXXIII do not seem to have resulted in an error of judgment in any way. Both the parties have had ample oppor tunity to prosecute their cases and to produce evidence in support of their respective claims to the best of their ability. It was on the basis of the evidence thus adduced by them that the learned trial Judge delivered his judgment in the cases. The learned counsel for the appellant has been unable to point out any thing from the record that the act of the trial Court in not observing the provisions of Order XXXIII, C. P. C. has resulted in any prejudice to his client. As such we would hold that the procedural defect in the proceedings of this case has not affected the merits of the case or the jurisdiction of the Court. In this behalf we would like to refer to a D. B. judgment of the Calcutta High Court which is on all fours with the facts of the present case. This is A I R 1920 Cal. 597. In that case in a suit for establishment of title to land, the claim of the plaintiff was dismissed by the trial Court whereupon the plaintiff pre ferred an appeal. The learned Judge who heard the arguments in the appeal reserved the judgment for a future date. After he had written, signed and dated the judgment he left for another station which he visited periodically and while he was thus absent from the headquarters the judgment was delivered by another Judge who was incharge of the Court during the temporary absence of the Judge of the Court. The decree was drawn up in due course of time and was signed by the Judges who had written and signed the original judgment. The defen dants appealed to the High Court and the only point pressed before the learned Judges of the High Court was that it was not a legal judgment which could form the foundation for a valid decree because the provisions of Order XX, rules 1, 2, 3 and 7 had not been observed by the Court inasmuch as after the case had been heard the judgment was neither signed nor dated and pronounced in the open Court by the same Judge.

It was held by the Division Bench that:

"Although the judgment so delivered was pronounced dated and signed in contravention of the specific provisions of the Civil Procedure Code, it was an irregularity, which was waived by the parties not taking objection at the tame of the delivery of the judgment."

The learned Judges further held that :

"Non‑compliance with every rule of procedure does not necessarily destroy the validity of the whole proceedings. The purpose of the rule violated must be examined. If the act of the Court is without jurisdiction or infringes a rule prescribed on grounds of public policy the proceeding becomes a nullity; if it is, on the other hand, only an irregular exercise of jurisdiction, a contravention of rules framed by the Legislature with a view to afford protection to the individual litigant, the latter might waive the benefit thereof and is not entitled to obtain a reversal of the decree except on proof that the merits have been affected. The mere fact that the Court has acted in a manner contrary to that prescribed by the Code of Civil Procedure does not necessarily show that what has been done is a nullity; the effect depends upon the nature; scope and object of the particular provision which has been violated."

The purpose of the rule violated in the present case was to protect bona fide claims of the pauper, to safeguard the interests of the revenue department and to eliminate any possibility of frivolous suit being brought against the defendant with a view to harass him. As already held, the bona fides of the claim of the pauper is not in doubt nor there is any danger of loss of Government revenue. It is also evident that the defendant appellant cannot be prejudiced in any way by the irregular exercise of jurisdiction by the trial Court. We are, therefore, convinced that the validity of the whole proceedings in this case could not be destroyed on account of non‑compliance with the provisions of Order XXXIII, C. P. C. Another case which must be referred to here and which is also on the point is A I R 1935 Nag. 33. (Single Bench). In that case wherein a similar question was involved it was held that :‑

"When there is submission without objection to jurisdiction which is inherent and exists, no objection can be taken to mere irregularities in procedure after the proceedings are finally closed."

In the case before us there was submission without objection by the appellant to the jurisdiction of the Courts below. Both the Courts below had the jurisdiction in the case and no objection was raised in those Courts in respect of the procedural defect by the defendant‑appellant or his counsel. As such no objection can be taken in that behalf at this stage in the second appeal.

It would also be relevant to refer to A R 1918 P C 162 which is also to the same effect. The facts of that case were that a judgment‑debtor died before the full satisfaction of decree. There was an application for substitution of legal representative made to the transferee‑Court. The legal representative objected to the procedure only at the last stage. Ft was held that :‑

"If the judgment‑debtor dies, before a certificate, as is required by section 41, is issued, the Court of transfer sloes not lose its jurisdiction over the execution proceeding, which does not abate by reason of the death, But before execution can proceed against the legal representative of the deceased judgment‑debtor, the decree‑holder must et an order for substitution from the Court which pass to the decree. This is a matter of procedure and not of jurisdiction. The jurisdiction over, the subject‑matter continues as before, but a certain procedure is prescribed for the exercise of such jurisdiction. If there is non‑compliance with such procedure, e.g. if the application for substitution is made to' the Court to whom decree is transferred instead of to the Court passing the decree, the defect might be waived; and the party who has acquiesced in the Court exercising it in a wrong way, cannot afterwards turn round and challenge the legality of the proceedings." P L D 1958 S C (Pak.) 195, the case referred to by Mr. A. M. Malik, learned counsel for the appellant is distinguishable on facts from the present case and as such the principle laid down therein cannot be followed as a precedent here. In P L D 1958 S C (Pak.) 195 the plaintiff presented an application accompanied with a plaint for permission to sue as a pauper as required by Order XXXIII of the Civil Procedure Code. The Court on the receipt of the application for pauperism recorded the following order :‑

"The application be registered. Notice be issued to the opposite‑party for the 3rd January 1953, on receipt of process fee. A notice be also issued to the Collector."

On the 3rd January as the Presiding Officer was on leave, the case was adjourned to 19th January 1953. On the 19th January a further notice was issued to the defendant for 18th February 1953. On the 18th February 1953 the Court found that someone had accepted the service on behalf of the defendant and therefore ex parte proceedings were taken against him and the case was adjourned to 14th April when nobody was present on behalf of the defendant and the applicant was declared as pauper and a suit was accordingly registered against the defendant. After recording the ex parte evidence the Court recorded an ex parte decree for a certain amount against the defendant. The defendant challenged this judgment and decree of the trial Court and the case ultimately came up before the Supreme Court for consideration. It was held that :‑

"The trial Court after deciding the question of pauperism and registering the plaint under Order XXXIII, rule 8, Civil P. C., should have issued a proper summons to the defendant under Form 1 or 2, Appendix B in the First Schedule to the Civil P. C., as required by section 27 and Order V, rule I of the Code of Civil Procedure calling upon him to answer the claim. Where this was not done the whole trial was vitiated and the ex parse decree could not be sustained."

in that case the defendant had not been served properly with the notice issued by the Court and therefore have had no opportunity to defend his interests. As such the flaw or error which cropped up in that case had affected the outcome of the case and consequently the judgment. If the defendant had appeared it the Court and adduced evidence in his defence, the outcome of the case would have been different and ex parte decree has not been passed against him. In the case before us the appellant had not only appeared in the trial Court as a party but had also put up a stout defence which received due consideration of the Court. As such in the Supreme Court case the procedural flaw in the proceedings had affected the merits of', the case whereas in this case it is not so. This case in our s opinion is covered by the provisions of section 99, I. C. P. C. and the judgment cannot be reversed for the error in procedure pointed out by Mr. A. M. Malik.

For the foregoing discussion we are not prepared to reverse the decree and remand the case in this second appeal for the alleged flaw in the proceedings. The preliminary objection is, accordingly, overruled. The application of the plaintiff respondent shall be treated as a plaint and as offered by the respondent she shall pay the Court‑fee admissible on it where after arguments on merits of the appeals shall be heard.

A. E. Appeal rejected.

Preliminary objection overruled.

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