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Civil Revision No. 20 of 1986, decided on 23rd July, 1986.

‑‑‑O.VIII, R.10‑‑Failure to file written statement‑‑Pronouncement of judgment‑‑On failure of defendant to file written statement within specified time, Trial Court, held, would have power either to pronounce judgment or to make such order as it deemed fit‑‑Where without giving any reasons or even indicating application of mind, suit was decreed, Trial Court would be deemed to have acted arbitrarily in exercising discretion for pronouncing judgment without recording further proceedings in matter.

Faqir Muhammad v. Mulla Mahmood P L D 1973 Quetta 1; 1983 S C M R 1188; Muhammad Feroz Khan v. Khalique Dad Khan and others 1986 S C M R 930; Sardar Sakhawat‑ud‑Din and others v. Muhammad Iqbal and others P L D 1983 Lah. 448; Faqir Muhammad v. Mulls Mahmood P L D 1973 Quetta 1; Sycd Mahmud Alam v. Syed Mehdi Hussain and others P L D 1970 Lah. 6; Syed Nazir Hussain v. Settlement Commissioner, Lyallpur P L D 1974 Lah. 434; Yousuf Ali v. Muhammad Aslam Zia and others P L D 1958 S C 104; Khuda Bakhsh v. Khushi Muhammad and others P L D 1976 S C 208 and Mansab Ali v. Amir and others P L D 1971 S C 124; Nizul Khan and others v . Habibullah P L D 1980 Lah. 48 and Bilqis Begum v. Syed Ali Turab and others 1980 C L C 930 ref.

Malik Muhammad Saeed v. Mian Muhammad Sadiq 1985 M L D 1440; Pakistan v. Khuda Yar and another P L D 1976 S C 159 and Imtiaz Ahmed v. Ghulam Ali P L D 1963 S C 382 rel.

‑‑‑S. 2(2)‑‑Word "decree", connotation of‑‑Held, for a proper judgment and "decree" there has to be formal expression of Court conclusively determining matter in controversy which was required to be essentially based on sound judicial grounds in light of available record.‑‑[Words and phrases].

Shamroz Khan v. Muhammad Amin and others P L D 1978 S C 89 rel.

‑‑‑S. 115 & O.VIII, R. 10‑‑Limitation Act (IX of 1908), S. 5Delay in filing appeal‑‑ Condonation of‑‑Decree passed by Trial Court being contrary to mandatory requirements of law based on incorrect assumption of jurisdiction by deciding matter without considering merits of case, objection regarding bar of limitation, held, would have no legal sanction‑‑Discretion exercised by Appellate Court in condoning delay could not be lightly interfered with in revisional jurisdiction unless on basis of proved facts action in that behalf was fanciful, perverse or arbitrary.

Indian Case XII Vol. 215; Atta Muhammad Qureshi v. Settlement Commissioner, Lahore, etc. P L D 1971 S C 61; Hussain Bakhsh v. Settlement Commissioner and others P L D 1969 Lah. 1039; Abdus Salam Khan v. Salimuddin Ahmed Siddiqui and others P L D 1979 Lah. 85; Rahim Bakhsh and another v. Gul Muhammad and others P L D 1971 Lah. 746; Faqir Muhammad v. Mulla Mahmood P L D 1973 Quetta 1; Syed Nazir Hussain v. Settlement Commissioner Lyallpur and another PLD 1974 Lah. 434; Nawabzada Muhammad Umer Khan and others v. Pakistan through Secretary Cabinet Division and others P L D 1982 Pesh. 1; Jaanada Prosad Mukherji v . G . M . Falkner A I R 1930 Cal. 426; Shahzada Muhammad Umer Baig v. Sultan Mahmood Khan and others P L D 1970 S C 139; Umar Dad Khan and another v. Tila Muhammad Khan and others P L D 1970 S C 288; Sardar and another v. Sultan and others P L D 1971 Lah. 690; Malik Khuda Bakhah and others v. Syed Hamid Ali Shah 1981 S C M R 196 and Mst. Fazal Begum v. Bahadur Khan and others P L D 1983 Lah. 365 ref.

‑‑‑S . 115‑‑Revisional jurisdiction, exercise of Jurisdiction under section 115, C.P.C. is of discretionary nature. It cannot be exercised for correcting every irregularity or impropriety. It can be invoked only if it is satisfactorily established that subordinate Court has exercised the jurisdiction not vested in it; or has failed to exercise the jurisdiction so vested in it; or has acted in exercise of its jurisdiction illegally or with material irregularity. The Revisional authority however, cannot be utilized in aid of injustice when factually substantial justice has been done in the matter.

Amanullah Khan for Appellants.

M. Yaqub K. Yousufzai, A.‑G. for Respondent.

Date of hearing: 19th July, 1986.

This Revision is directed against judgment of Majlis‑e‑Shoora, Khuzdar dated 17‑3‑1986.

2. Brief facts giving rise to this petition are, that on 27‑11‑1984 petitioner filed a Civil suit in the Court of Qazi Khuzdar seeking declaration of being owner of land bearing Khewat No. 429 Khatooni No. 429, Khasras Nos. 1474, 1477 and 1978 situate in Mauza Khund and for perpetual injunction restraining respondent from interfering in their possession. According to the averments of plaint, during settlement operation carried out towards year 1976 petitioners were entered as owners of aforementioned land. But subsequently in persuance of notification issued by Provincial Government fresh settlement was ordered in year 1982 as a consequence whereof, revenue entries were changed and Province of Baluchistan, was shown in the column of ownership, in place of petitioners. It is the case of petitioners that they are in continuous and uninterrupted possession of lands in dispute and have even constructed boundary walls over it, but respondent is unjustifiably attempting to dispossess them. In the circumstances it was claimed that entries of revenue record be corrected and petitioners be entered as owners of lands described in the plaint.

3. Record reveals that notices were issued to Deputy Commissioner Khuzdar on behalf of Provincial Government judgment dated 13‑7‑1985 indicates that Sadar Qanoongo appeared before trial Court on behalf of Deputy Commissioner Khuzdar and requested for adjournment to contact Government pleader for preparing written statement. Learned Qazi Jhallawan however, rejected said application observing that several opportunities were obtained by respondent for the said purpose and the matter was being unnecessarily delayed on account of such tactics. Therefore, in the purported exercise of authority within the preview of Order VIII, Rule 10, C.P.C. suit was decreed in favour of the petitioners by means of judgment dated 13‑7‑1985, which is reproduced below: ‑

4. Respondent on 6‑3‑1986 filed an Appeal No. 24 of 1986 before Majlis‑i‑Shoora, Khuzdar which was however accepted vide judgment, dated 17th March, 1986 whereby decree dated 13‑7‑1986 passed by trial Court has been set aside and case is remanded to the Court of Qazi Jhallawan at Khuzdar for obtaining written statement of respondent and for recording proceedings on merits. Operative portion is also reproduced:‑

Being dissatisfied from aforesaid judgment of Majlis‑i‑Shoora, present petition has been filed on 27‑4‑1986.

5. Mr. Amanullah Khan, learned counsel for petitioners vehemently urged that appeal filed by respondent before Majlis‑i‑Shoora, Khuzdar was hopelessly barred by time. According to him it was obligatory for respondent to have explained each day's delay. He argued that Majlis‑i‑Shoora, has acted illegally and in excess of authority vested in it by entertaining said appeal. To supplement his submissions reliance has been placed on the observation in cases Nazaru‑Din and others v . The Secretary, Rural with Powers of the S.C. Punjab Lahore and others 1983 S C M R 1188 and Muhammad Feroz Khan v . Khalique Dad Khan and others 1986 S C M R 930. Learned counsel further contended that trial Court, had validly exercised its jurisdiction under Order VIII. Rule 10, C . P.C. which has been arbitrarily interfered with by the appellate Court. In this be4alf he has relied on the judgment (i) Sardar Sakhawat‑ud‑Din and others v . Muhammad Iqbal and others PLD 1983 Lab. 448.

6. Whereas on the other hand learned Advocate‑General has strenuously canvassed that provisions of Order VI11, Rule 10, C.P.C. have not been correctly construed by trial Court. He argued that neither discretion in law was properly exercised, nor evidence was recorded nor any reasons were given by trial Court, therefore, judgment dated 13‑7‑1985, is deemed to be a nullity in the eyes of law as such bar of limitation would not be operative. Reference in this behalf is made to the observations in cases Faqir Muhammad v. Mulla Mahmood PLD 1973 Quetta 1, Syed Mahmud Alam v. Syed Mehdi Hussain and others P L D 1970 Lab. 6 and Syed Nazir Hussain v Settlement Commissioner, Lyallpur P L D 1974 Lah. 434. In the same stream it was argued that service of summons on Deputy Commissioner Khuzdar was not proper, as he is not recognized agent of Provincial Government within the scope of section 79 or Order XXVII of C.P.C. Thus, all proceedings recorded in the matter recorded by trial Court age devoid of lawful authority. Reliance is placed on the observation in case Yousuf Ali v . Muhammad Aslam Zia and others P L D 1958 S C 104, Khuda Bakhsh v. Khushi Muhammad and others P L D 1976 S C 208 and Mansab Ali v. Amir and others P L D 1971 S C 124.

It is also submitted that appellate Court has exercised discretion vested in it by law, in condoning the delay, therefore, same cannot be sought to be interfered with. Illegality committed by trial Court stands rectified by the impugned judgment. In the circumstances revisional jurisdiction cannot be invoked for perpetuating illegality merely for technical reasons.

I have carefully examined the arguments advanced by learned counsel for parties. Perusal of trial Court's judgment dated 13‑7‑1985 manifestly indicates that learned Qazi merely expressed his intention to act under Order VII1, Rule 10, C.P.C. and without recording any further proceeding or assigning any reasons simply decreed the suit. In order to properly appreciate the contention raised in the matter it would be fair to reproduce Order VIII, Rule 10, C.P.C:‑

"10. Procedure when party fails to present written statement called for by Court.‑‑Where any party from whom written statement is so required fails to present the same within the time fixed by Court, the Court may pronounce judgment against him or make, such order in relation to the suit as it thinks fit. "

It may be seen that in the event of defendant's failure to file written statement within specified time the trial Court enjoys jurisdiction either to pronounce judgment or to make such order as it deems fit. In this matter it appears that Trial Court was inclined to pronounce judgment. But factually no comments on the merits of the case were at all made. Evidently without giving any reasoning or even indicating application of mind the suit has been decreed. Word "Decree" has been defined in section 2(2) of Civil Procedure Code, whereas procedure for passing judgment is explained in Order XX of C.P.C. Obviously for a proper judgment and decree there has to be formal expression of the Court conclusively determining matter in controversy which should be essentially based on sound judicial grounds in the light of available record. Principle of law decided by the Honourable Supreme Court, in case Shamroz Khan v. Muhammad Amin and others P L D 1978 S C 89 for interpreting identical provisions of Order IX, Rule 6, C.P.C. is on all force in the instant case:

"This means that the Court may proceed ex parte and that it may. pass a decree without proceeding evidence. The word 'may' here imports discretion and means may, not shall, therefore, when a Court strikes off the defence of a defendant, it has further to decide it, the exercise of its discretion, whether it should decree the claim against the defendant after recording evidence or without recording evidence, and like all discretion vested in the Courts, this discretion must be exercised judicially. In the instant case, however the suit was decreed against the said respondents merely because their defence was struck off, therefore, on this ground also the suit was illegally decreed against the said respondent."

In the light of aforesaid principle, the trial Court has acted, arbitrarily in exercising discretion for pronouncing judgment without recording further proceedings in the matter. Learned counsel for petitioner by relying on the observation in the case Sardar Shaukat‑ud‑Din v. Muhammad Iqbal and others P L D 1983 Lab. 448 emphasized that trial Court, straightaway passing judgment without recording any further proceedings has acted within the scope of law. There was however divergence of judicial opinion about object and manner of exercising jurisdiction under Order VIII, Rule 10, C.P.C. Earlier judgments reported in Nizul Khan and others v. Habibullah P L D 1980 Lab. 48 and Bilqis Begum v. Syed Ali Turab, and others 1980 C L C 930 have not approved passing of judgment without recording evidence. However, controversy in this behalf has been authoritatively elucidated by Division Bench of Lahore High Court in case Malik Muhammad Saeed v. Mian Muhammad Sadiq reported in 1985 M L D 1440. It is profitable to reproduce relevant observations:-

"15. After giving our anxious consideration to the matter in the above light, we are of the opinion that it is inherent in the very process of dispensation of justice that the judicial conscience of the Court must be satisfied about the genuineness of the case set up by the plaintiff approaching the civil Court in the proceedings for discovery of truth and in order to obviate chances of unscrupulous litigants getting away with illmerited judgments or decrees which would amount to negation of justice and defeat the very purpose of law. It follows that a judgment that is based on no evidence whatsoever on the merits of the case would be illegal. It cannot also be overlooked that there are no words to be found in Order VIII, Rule 10, C.P.C. doing away with absolute requirement of the Evidence Act.

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18. We are also not oblivious of the principle that Courts favour adjudication on merits while construing the provisions under examination. Reference may be made to Manager Jammu and Kashmir State Property in Pakistan v. Khuda Yar and another PLD 1976 S C 159 and Imtiaz Ahmed v. Ghulam Ali PLD 1963 SC 382."

I am in respectful agreement with dictim laid in the aforementioned report. Thus, unless the Court applies mind the fact and circumstances of the case and specific reasons for arriving at conclusions are given the decision cannot qualify to be judicial judgment. In this context reference can also be made to Oudh Court reported as Indian Case XII Vol. 215. Relevant portion is however, reproduced:-

Nanhe v. Saiyad Tasadduq Hussain--212

"It is urged on behalf of the applicant that the Munsif acted with material irregularity because under Order VIII, Rule 10, he was only empowered to pronounce judgment against the defendant and in this case there is no judgment, but merely an order decreeing the plaintiff's claim. A judgment is defined in section 2(9) of the Code of the statement given by the Judge of the grounds of a decree or order. Therefore, the law contemplates that the Court should go into the case and pronounce a decision upon the facts so far as they are before it. If the learned Munsif had examined the plaintiff and considered the documents produced before him and written a decision stating that he believed the plaintiff's evidence that would have been a judgment within the meaning of Order VIII, Rule 10, but I cannot hold that the order of the Munsif in this case was a judgment, I am, therefore, of opinion, that there was a material irregularity. The learned Pleader for the respondent refers to the case of Kristanmma v. Chaps Naidu, where it is said that material irregularity, within the meaning of section 622 of the old Code of Civil Procedure, means, 'a perverse decision on a question of law or procedure, a decision being perverse where it is a conscious departure from some rule of law or procedure', and he contends that there is no departure from any rule of law or procedure in this case. I must assume that the learned Munsif knew what the meaning of a judgment is. A judgment certainly means some kind of decision upon the merits, but there is none in this case."

Since in the instant case trial Court has announced the judgment dated 13-7-1984 without recording evidence or giving any reasons, as such decree, awarded in this matter is devoid of lawful sanction; same is accordingly declared to be defective, erroneous and in violation of law, as such of no effect.

Admittedly there is delay in filing appeal before Majlis-i-Shoora. Normally respondent was supposed to explain each day's delay as also held in the cases relied upon by the petitioner. However, in this case as observed earlier, the judgment and decree passed by trial Court is clearly contrary to mandatory requirement of law, based on incorrect assumption of jurisdiction by deciding the matter without considering merits of the case; therefore, on the principle laid down in case Atta Muhammad Qureshi v . Settlement Commissioner, Lahore etc. P L D 1971 SC 61 same would be deemed as nullity. In such circumstances of the case objection regarding bar of limitation will have no legal sanction. In support of this aspect reliance may however be placed on the observation in cases. Hussain Bakhsh v. Settlement Commissioner and others P L D 1969 Lah. 1039, Abdus Salam Khan v. Salimuddin Ahmed Siddiqui and others P L D 1979 Lah. 85; Rahim Bakhsh and another v. Gul Muhammad and others P L D 1971 Lah. 746; Faqir Muhammad v. Mulla Mahmood P L D 1973 Quetta 1, Syed Nazir Hussain v. Settlement Commissioner Lyailpur and another P L D 1974 Lah. 434, Nawabzada Muhammad Umer Khan and others v. Pakistan through Secretary -Cabinet Division and others P L D 1982 Pesh. 1.

It may be seen that application for condonation of delay in filing appeal was submitted by respondent before Majlis-i-Shoora. Undoubtedly appellate Court was competent to examine plausibility of condoning delay. In the circumstances discretion exercised by the appellate Court in condoning delay, cannot be lightly interfered with unless it can be shown on the basis of proved facts that the action in that behalf was fanciful, perverse, or arbitrary. If authority is needed reference can be made to decided cases, some of which are mentioned below: -

(i) Jaanada Prosad Mukherji v. G.M. Falkner A I R 1930 Cal. 426.

(ii) Avasarala Kamaraju v. Balls Saramma A I R 1942 Mad. 604.

(iii) Shahzada Muhammad Umer Baig v. Sultan Mahmood Khan and others P L D 1970 S C 139.

(iv) Umar Dad Khan and another v. Tila Muhammad Khan and others P L D 1970 S C 288.

(v) Sardar and another v. Sultan and others P L D 1971 Lah. 690.

(vi) Malik Khuda Bakhsh and others v. Syed Hamid Ali Shah 1981 SCMR 196.

(vii) Mst. Fazal Begum v. Bahadur Khan and others P L D 1983 Lah. 365.

The last contention, which has been emphatically argued relates to the scope of revision. It is now well-settled that jurisdiction under section15, C.P.C. is of discretionary nature. It cannot be exercised for correcting every irregularity or impropriety. It can be invoked only it is satisfactorily established that subordinate Court has exercised the jurisdiction not vested in it; or has failed to exercise the jurisdiction so vested in it; or has acted in exercise of its jurisdiction illegally or with material irregularity. The Revisional authority however cannot be H utilized in aid of injustice when factually substantial justice has been done in the matter. It may be mentioned that the impugned judgment of Majlis‑i‑Shoora, has set right, the wrong committed by trial Court, i.e. Qazi Khuzdar. In this case attempt is being made to take shelter on certain technicalities only. In fact impugned judgment has provided a fair opportunity to the parties to prove, their respective claims. Generally law favours adjudication of matters on merit, and this object is being achieved by impugned order.

Thus, for the foregoing reasons, I am inclined to hold that petition is not maintainable, same is accordingly ordered to be dismissed.

Parties are, however, left to bear their own costs.

A . A . Petition dismissed.

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