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L. P. A. No. 70 of 1956, decided on 3rd March 1959.

O. IX, rr. 9 and 13‑ Plaintiff's suit dismissed for default under O. IX, r. 8, anti a decree passed against plaintiff for defendant's counter‑claim‑Plaintiff applying under O. IX, r. 13 for setting aside decree but omitting to pray for restoration of suit under O. IX, r. 9‑Omission, held, only technical‑Suit restored‑Courts not to hesitate to grant relief merely on technical grounds e.g., making an application under a wrong section.

On the day fixed for final hearing of the plaintiff's suit and it counter‑claim by the defendant, no one appeared for the plaintiff. The suit was consequently dismissed under O. IX, r. 8, C. P. C., and a decree was passed against the plaintiff for the defendant's counter‑claim.

The same day the plaintiff's counsel submitted an application tinder O. IX, r 13 & S. 151, C. P. C., for setting aside the decree, but omitted to pray for restoration of the suit tinder O. IX, r. 9, C. P. C. The Judge hearing the application set aside the decree but refused to restore the suit as the plaintiff had not made any application or prayed for restoration of suit under O. IX, r. 9, C. P. C.

Held, that this was a fit case in which the suit ought to have been restored.

The Courts do' not sit as disciplinary bodies to punish for inapt procedure when their right is clear and no misunderstanding, surprise or prejudice can occur to the other side. The duty of the Court is to do justice between the parties. The procedure prescribed is for the purpose of doing justice between them and should not come in the way of doing substantial justice.

The High Court generally in such cases takes a lenient view and has granted proper relief even in those cases where applications are badly drafted or proper relief is not claimed.

The Court will remedy an obvious injustice and will not refuse relief merely because the application therefor is made under a wrong section or because there is some technical defect.

The paramount consideration for a Court of law is to do justice between the parties and in the absence of any express bar, merely on technical grounds they should not hesitate to grant proper relief.

Civil Courts are both Courts of law and equity.

If the application under O. 1X, r. 13 had omitted to pray for restoration of the suit under O. IX, r. 9 as well, the affidavits filed with the application contained the statement that if the suit was not restored the plaintiff would be seriously prejudiced. Held, this statement in itself should have been taken as a prayer for restoration of the suit.

Moreover, if there was sufficient ground for setting aside the decree, the whole order should have been set aside in the interest of justice.

Kojo Pon v. Atta Fua A I R 1927 P C 264, Mating San Tin v. Ma Phet Pu and others A I R 1925 Rang. 192 and Hanifunnissa and another v. Chunni Lal and others A I R 1921 All. 321 ref:

Sharifuddin for Appellant.

Dingomal for Respondent.

Date of hearing : 3rd March 1959.

‑This is an appeal from the order of Inamullah, J., dated the 8th of October 1956 in Suit No. 615/1951, filed on the original side of the Chief Court of Sind, refusing to restore the suit dismissed for default on the 21st of August 1956.

The Karachi. Municipal Corporation, the appellant in this appeal, filed a suit for the recovery of Rs. .1,26,207;5 0 as charges for water supplied to the respondent company. The Respondents, in reply, claimed Rs. 27,904/9/0 as a counter claim on the ground that they have made over payment to the appellant. The suit and the counter claim came up before Inamullah, J., on the 21st of August 1956, for final hearing. The learned Judge waited for an hour and no one turned up on behalf of the appellant. Consequently, the learned Judge dismissed the suit but passed a decree in respect of the counter claim in favour of the respondents. On behalf of the appellant, on the same day, an application was made for setting aside of the decree. This application purports to have been made under Order 9, rule 13 and section 151, C. P. C. 1t was returned for compliance of rule 74, Original Side Rules of the Chief Court of Sind, namely for filing the affidavits along with the application. The application was represented‑ on the 24th of August 1956, along with the affidavits of Mr. Kaikobad, the junior counsel for the appellant, Naseer Ahmad, clerk of the appellant's counsel and Mr. Hassanally the senior counsel appearing in the original suit on behalf of the appellant. The learned Judge, after hearing the parties, set aside the decree against the appellant but refused to restore the suit as the appellant did not make any such prayer and has not made an application under Order 9, rule 9, C. P. C.

The only question for determination in this appeal is whether Inamullah, J., was right in refusing to restore the suit in the circumstances of the present case.

Mr. Sharifuddin, the learned counsel for the appellant has taken us through the entire record and has urged that the appellant was not aware that the suit was fixed for final hearing on the 21st of August 1956. In the diary of the appellant's counsel the date for hearing was noted as 31st August 1956. Mr. Kaikobad the junior counsel for‑the appellant, is the original suit, got information about the ex parte decree in the Court precincts and immediately made an application for setting aside of the order in a hurry and being unaware of the nature of the order passed, only prayed for the setting aside of the decree and did not make any prayer for the restoration of the suit. The learned counsel for the appellant urged that the intention of the counsel for the appellant, in making the application, was to get the ex parte order set aside and the mere fact that a proper prayer was not made should not come in the way of granting a proper relief for doing justice between the parties. The learned counsel' also referred us to the affidavits filed on behalf of the appellant in support of the application for setting aside the decree. In the affidavits both of Mr. Hassanally Abdul Rehman, advocate and Naseer Ahmad, a clerk of the advocate concerned, it is clearly stated that if the suit is not restored then the plaintiff will be seriously prejudiced. The learned counsel, therefore, urged that although no formal prayer was made in the application itself, it is contained in the affidavit and was sufficient for the purposes of granting the relief for the restoration of the suit.

Mr. Dingomal, the learned counsel for the respondent, on the other hand, contended that it is a clear case of negligence on the part of the counsel of the plaintiff. Although the application was made in a hurry on the 21st August 1956, but it was returned and was represented on the 24th of August 1956. This time was more than sufficient for the rectification of the mistake. According to him the appellant and their counsel failed to detect the omission and mistake, and their failure to make proper amends within thirty days of the passing of the impugned order disentitled them to get the suit restored.

After hearing the learned counsel for the parties we are of the opinion that the appeal must be accepted. It is a wells recognised principle of law that the Courts "do not sit as disciplinary bodies to punish for inapt procedure when their right is clear and no misunderstanding, surprise or prejudice can occur to the other side". The duty of the Court is to do justice between the parties. The procedure prescribed is for the purpose of doing justice between them and should not come in the way of doing substantial justice. We are sure if the attention of Inamullah, J. would have been drawn to the decided cases to show that the High Court generally in such cases takes a lenient view and had granted proper relief even in those cases where applications are badly drafted or proper relief is not claimed, he would have) restored the suit.

There is a host of authorities in support of the view that the Court will remedy an obvious injustice and will not refuse I relief merely because the application therefor is made under a wrong section or because there is some technical defect. We invariably treat revision applications as appeals and appeals as revisions in order to do justice between the parties. In Kojo Pon v. Atta Fua (A I R 1927 P C 264) an appeal was dismissed by the learned Judges of the High Court for technical defects in security bonds furnished under Order XLI, rule 10, C. P. C. The matter was taken to the Privy Council and their Lordships observed that simply because proper security bond was not executed the appeal ought not to have been dismissed and the High Court should have given an opportunity to the appellant for rectification of the mistake their Lordships observed:

" Their Lordships wish to say that in cases coming before them from the Dominions of the Crown, their first consideration always is to secure, if possible, that substantial justice is done. That may not always be possible. There may be conditions in the local law or in the rules which preclude the possibility of getting round technical obstacles and doing complete justice. But they think that in the case of the rules of procedure in the Gold Coast Colony there are no such obstacles. The Court was invested with the widest powers, and it might have adjourned the hearing of the appeal until a proper bond was executed, or it might have said that an affidavit was sufficient and that was the more incumbent on the Court because its own Registrar had accepted the bond executed by Kwabena on behalf of the appellant.

Under these conditions their Lordships think that to refuse to hear the appeal merely on the ground of what might have been a mere technicality about the bond was to fail to do justice as between the parties, and they are of opinion that the case must be remitted to the Court below to deal with it again."

In Maung San Tin v. Ma Phet Pu and others (A I R 1925 Rang. 192) an application for review was treated as an application under Order IX, rule 13 and necessary relief was granted. In llanifunissa and another. v. Chuni Lal and others (A I R 1921 All. 321) an application for restitution of the amount from the Judgment‑Creditor was allowed although it purported to be an application of execution of decree and was " in form inaccurate, loose and embarrassing ", still the High Court in the interest of justice granted the necessary relief. In that case the learned Judges observed " Where the real meaning of the application is perfectly well understood by both parties, and by the Court, the application ought to be amended in suitable form."

On a careful consideration of the matter we are of opinion that the paramount consideration for a Court of law is to do justice between the parties and in the absence of any express bar, merely on technical grounds they should not hesitate to grant proper relief. It must always‑ be kept in mind that Civil Courts are both Courts of law and equity.

In the present case the application under Order 9, rule 13, C. P. C., was made in a hurry. The counsel who presented the application was not conversant with the actual state of affairs and was not aware whether a decree has been passed or the suit has been dismissed. But the intention of the counsel and the clerk of the appellant's counsel is obvious from the statement made in the affidavits filed with the application. In these affidavits there is a clear statement that if the suit is not restored the plaintiff will be seriously prejudiced. In our opinion this statement in itself should have been taken as prayer for the restoration of the suit.

There is another reason why the suit in the present case should have been restored. The order contained two directions : (1) the dismissal of the suit for default and (2) a decree was passed against the appellant in respect of the counter claim. In our, opinion, once our brother arrived at the conclusion that there t; was sufficient ground to set aside the decree passed against the appellant, he should have in the interest of justice set aside the whole order. The appellant on payment of costs could have easily been called upon to amend the relief so as to incorporate the prayer for restoration of the suit. Under the circumstance we consider this a fit case in which the suit ought to have been) restored. In our opinion the facts of this case do not disclose any negligence.

For the reasons given above we will accept the appeal and restore the suit. The parties are directed to appear before the Additional Registrar, Original Side, on 7‑4‑1959 for further proceedings. Parties are left to bear their own costs.

A.H. Appeal Accepted.

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