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Second Appeal No. 396 of 1979, decided on 18th December, 1985.

‑‑‑S. 34 & 0. VII, R. 7‑‑Interest on decretal amount, grant of‑ Jurisdiction of Court‑‑Court is empowered to award ancilliary relief even if same was not prayed for‑‑Court, held, was entitled, rather justified in granting interest on decretal amount adjudged in suit for payment of money, from date of filing of suit up‑to‑date of decree and future interest up to date when decretal amount actually was paid, even if there was no specific prayer for grant of such interest.

A I R 1921 Lah. 125; 1969 S C M R 691; A I R 1943 Nag. 240 and A I R 1940 Bom. 369 ref.

‑‑‑Ss. 34, 96 & 151‑‑Interest on decretal amount‑‑Refusal of Trial Court to grant‑‑Appeal against‑‑Maintainability of‑‑Where Trial Court awarding principal amount in suit for payment of . money did not allow interest on decretal amount, only proper course against decree and judgment of Trial Court, held, would be filing of appeal before Appellate court‑‑Application filed by decree‑holder under S. 151, C.P.C. for correction of decree having been rejected by Trial Court, appeal filed against such rejection within time, would be considered to have been properly filed under S. 96, C.P.C.‑‑Finding of First Appellate Court that appeal was not maintainable as same was not against main decree and judgment of Trial Court but was against order passed on application, was repelled in circumstances.

Shahenshah for Appellant.

Muhammad Jalaluddin for Respondent.

Date of hearing: 19th December, 1985.

This appeal is directed against the judgment and decree passed by VIIIth Additional District Judge, Karachi dated 22‑5‑1977, whereby he dismissed the appellant's appeal against the judgment and decree of Civil Judge XXVI, Second Class, Karachi. Briefly stated the facts giving rise to this appeal are that the appellants has filed a suit for rendition of accounts against the respondent which was dismissed. The final decree was passed on 7‑5‑1977, wherein the Commissioner's report was confirmed and the respondent was directed to pay the sum of Rs 5,585.25 to the appellant. No interest was allowed to the appellant in this decree although the amount was realised after 7 years of the institution of the suit. The appellant before filing the appeal against the decree of the Civil Judge had moved an application under section 151, C . P. C . for correction of the decree but the same was rejected. He filed the appeal, but the Additional District Judge, Karachi dismissed the appeal as shown above.

I have heard Mr. Shahanshah Hussain, Advocate for the appellant. There is no appearance on behalf of the respondent. From the perusal of the judgments of both the lower Courts it appeared that they were of the view that no interest could be allowed to the appellant as he had not made specific prayer for award of interest. This view of both the lower Courts is on the face of it incorrect. Section 34 of the C.P.C. clearly empowers the Court to award the interest in so far as a decree is for the payment of money, at such rate as the Court deems reasonable to be paid on principal sum so adjudged, from the date of the suit to the date of the decree.

Section 34 may be read in conjunction with Order VII, Rule 7 , C . P. C . which relates to ancilliary relief. It is a settled law that an ancilliary relief can be awarded in spite of the fact that it has not been prayed. Reference was made by the appellant's counsel Mr Shahanshah Husain, rightly to A I R 1921 Lah. 125 where it was held: "Order VII, Rule 7, lays down that it shall not be necessary to ask for general or other relief which may always be given as the Court may think just to the same extent as if it had been asked for. This, of course, is subject to the limitation that this 'other relief' is not inconsistent with relief claimed in the plaint.' The granting of interest, not specifically asked for in a suit for money, cannot be regarded as an inconsistent relied and, therefore, a Court has discretion to award interest subsequent to the institution of the suit."

Mr. Shahanshah Husain, also referred to 1969 S C M R 691. It was additionally held in this ruling that plaintiff was entitled under section 34 of C.P.C. to interest for the period the suit remained pending. In another ruling reported A I R 1943 Nag. 240, it was held as under

"The question of interest pendente lite is one for the discretion of the Court and is not a matter of substantive law which must be pleaded. Where the plaintiffs have not been paid anything whatever on debts running since 1931, they should not be deprived of their interest during the trial."

In yet another ruling reported in A I R 1940 Bom. 369 the question of award of interest on long delayed payments under vexatious and oppressive circumstances was considered and it was held as under

"Courts may allow interest when there has been long delay under vexatious and oppressive circumstances under the contract. There mere fact that damages are awarded is no ground for refusing to award interest if the circumstances justify."

It is, therefore, quite plain that even if there was no specific prayer for grant of interest the Court was entitled, rather justified in granting interest on the decretal amount from the date of filing the suit up to the date of decree and even future interest up to the date when actually the decretal amount was paid.

The learned Additional District Judge, also was of the view that the appeal was not maintainable in view of the fact that it was against an order passed on an application under section 151, C.P.C. and not against the main judgment and decree, to which provisions of section 96 of C.P.C. and not applicable. I am of the view that this preliminary objection cannot prevail. This appeal is against the main judgment and decree of the learned Civil Judge. The decree is dated 7‑5‑1977. The appeal has been filed on 24‑5‑1977, and is, therefore, in time. It is an appeal under section 96, C.P.C. It clearly states that it is against the decree, dated 7‑5‑1977. Hence the appeal is proper as well as within time. As the Court did not allow interest while awarding the principal amount, filing of an appeal against the same judgment and decree was the only proper course. We can conveniently overlook the application under section 151, C . P. C . filed by the appellant before0 the Civil Judge and the order of the Civil Judge, rejecting the same, as redundant. The decretal amount was withheld by the respondent for seven long years without any justification and thus the appellant has been put to not only monetary loss but also agony of a protracted litigation. Hence he should have been compensated for the same.

For these reasons I am, satisfied that the learned Civil Judge, as well as the learned Additional District Judge, were not justified in refusing to grant interest to the appellant. Hence I allow the appeal with costs and direct that interest at the rate of 6% from the date of filing of the suit till the date of recovery of the decretal amount be also awarded to the appellant.

H. B. T. Appeal allowed.

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