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Petitioner: Abdul Aziz and 2 others VS Respondent: Ch. Asghar Ali
Court Name: Lahore High Court Judge(s): Muzamil Akhtar Shabir Title: Abdul Aziz and 2 others vs Ch. Asghar Ali Case No.: F.A.O. No.242 of 2010 Date of Judgment:2019-05-02 Reported As: PLD 2020 Lahore 831 Result: Appeal dismissed
JUDGMENT
JUDGMENT MUZAMIL AKHT AR SHABIR, J.----Through this First Appeal against Order , the appellants have called in question the order dated 17.04.2010 ('Impugned order' ) passed by learned Addl. District Judge, Sargodha ('Appellate Court' ), whereby by allowing the application under Section 152 of the Code of Civil Procedure, 1908 ("C.P.C.") filed by the respondent, the learned Judge corrected the decree sheet dated 15.05.1995, which was earlier prepared by the appellate Court and included relief for delivery of possession in the same in terms of its judgment dated 15.05.1995. 2. Brief facts of the case are that Ch. Asghar Ali, the plaintif f/ respondent ('respondent ') filed a suit for declaration against the appellants and one, Muhammad Salim, seeking relief, that he be declared owner of the suit property and transfer mutations in favour of appellants be set-aside, by claiming that he had purchased the land/plot No.16 measuring 10 Marlas 30 Sq. ft. through registered 'sale deed dated 14.03.1978 from its owner Muhammad Salim and mutation No. 357 dated 13.07.1978 had been sanctioned in his favour and the possession of the said plot was also handed over to him. Subsequently , it transpired that the said property despite being owned by the respondent had been sold by said Muhammad Saleem along with his own property to Khaliq Dad/appellant No. 3, who had further sold the same in favour of Abdul Aziz/appellant No.1, who further transferred the same to Saqlain Farooq/appellant No.2 through impugned mutations, which mutations are liable to be set-aside. The learned trial court on 10.02.1994 decreed the said suit in favour of the respondent and mutation No.3453 entered in the revenue record in favour of appellant No.2 was canceled by declaring the same as null and void. The learned Addl. District Judge, Sargodha, vide findings recorded in paragraph No. 16 of the judgment dated 15.05.1995 modified the judgment and decree passed by the learned trial court and granted relief of possession of the suit property in favour of the respondent. However , while preparing the decree sheet the portion of the relief of possession was somehow not included therein. The appellants challenged the said judgment and decree by filing Civil Revision No.
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1341 of 1995 before this Court, which was dismissed on 13.10.2003 by observing that court under section 115, C.P.C. had not got jurisdiction to interfere in duly and properly recorded concurrent findings of fact and C.P.L.A. No.3042 of 2003 filed there-against was also dismissed on 06.08.2008 by the august Supreme Court of Pakistan and it has been apprised during arguments that review petition filed there-against has also been dismissed, consequently findings of appellate court were upheld. During execution proceeding s when it transpired that relief of possession has not been included in the decree sheet, the respondent on 30.09.2008 filed an application with the appellate court under Section 152 of C.P.C. for correction of the decree sheet dated 15.05.1995 prepared by it, which application was allowed vide order dated 17.04.2010 and the decree sheet was ordered to be corrected accordingly . Through this appeal the order dated 17.04.2010 has been called in question by the appellants. 3. The learned counsel for the appellants has argued that the impugned order is against the facts of the case and law on the subject and is liable to be set aside. On the contrary the respondent has defendant the said order by claiming the same to be in accordance with law . 4. The parties have been heard and the record has been perused with the assistance of learned counsel for the parties. With the consent of the parties this appeal is being heard and decided as an admitted case and the arguments addressed by both the parties have been attended to in detail in the paragraphs that follow . 5. It is pertinent to mention here that the instant dispute has arisen from the fact that in the earlier round of litigation when the judgment dated 15.05.1995 was passed by the appellate court it had modified the decree of the trial court and also granted further relief of possession, however , the decree sheet prepared by the said court omitted to mention that the said relief has also been allowed to the respondent and subsequently the said relief has been ordered to be included in the decree sheet by the impugned order passed on 17.04.2010 after a time lapse of approximately 15 years. 6. The moot point in this case is that whether in the given circumstances of the case, the appellate court, through the impugned order passed in exercise of jurisdiction vested under section 152 of C.P.C., was legally empowered and justified to amend the decree sheet that has previously been prepared. 7. It is claimed by the appellants that the decree sheet prepared by the appellate court had attained finality in earlier round of litigation as the same had been upheld up to the Honourable Supre me Court of Pakistan hence, the appellate court in exercise of powers vested in the said court under section 152 of C.P.C. at a belated stage was not empowered to subsequently amend the same through the impugned order . On the contrary , the claim of the respondent is that the decree sheet previously prepared was not in conformity with the judgment passed by the appellate court, which amounted to erron eous exercise of jurisdiction vested in the court and to rectify the said mistake the court has rightly amended the decree sheet. 8. In the paragraph No. 16 of the judgment dated 15.05.1995, the appellate court observed as under: "Before parting with this judgment, I also allow prayer for possession of the disputed property , because plaintiff is not at present in possession of the disputed property . Therefore, he can take possession through the execution proceedings, as he has also sought any other relief which is considered to be competent by the court. I consider that plaintiff has also prayed for possession, hence this prayer is also allowed". Although the appellate Court in afore-re ferred paragraph of the judgment allow ed the relief of possession of property to the respondent, the said relief was somehow not included in the decree sheet prepared by the court. This defect was not noted till the matter had gone through the stages of civil revision before this Court and its decision before the Honourable Supreme Court. Subsequently , an application under section 152 of C.P.C. for correction of decree sheet was filed resulting into its amendment/correction. 9. The nexus between 'judgment' and 'decree' becomes clear by reference to the definitions of the same provided in the C.P.C. Judgment is defined in Section 2(9) of C.P.C. reproduced below as the statement given by the Judge of the grounds of decree or order . "Section 2(9).'Judgment' means statement given by the Judge of the grounds of decree or order ." Decree is defined in section 2(2) of C.P.C. reproduced below as formal expression of an adjudication by the Court conclusively determining the rights of the parties with regard to matter in controversy .
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"Section 2(2). 'Decree' means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either prelimina ry or final. It shall be deemed to include the rejection of a plaint the determination of any question within Section 144, and an order under Rule 60, 98, 99, 101 or 103 of Order XXI but shall not include-- (a) any adjudication from which an appeal lies as an appeal from an order , or (b) any order for dismissal for default." By placing both the afore-referred definitions in juxtaposition, it transpires that the judgment is the statement given by the judge relating to the grounds resulting in the decree passed by the Cour t and decree sheet is drawn in accordance with the said statement by the Court to express the conclusively determination of rights of the litigating parties, relating to the matter in controversy . The said statement of the judge not only provid es the reasons for the decision, it also conclusive determines the rights of the parties and the decree sheet prepared as a result is its formal expression. 10. This position is further clarified by section 33 of C.P.C., which provides that the decree was required to follow the judgment and Rules 6 and 7 of Order XX of C.P.C. that provide for Contents and Date of decree, hence reference to the said section and rules is also relevant for decision of this appeal. The wording of section 33 at the time of passing the judgment and decree was as follows: "Section 33. Judgment and decree. The Court, after the case has been heard, shall pronounce judgment, and on such judgment decree shall follow ." (emphasis supplied) The aforesaid section 33 was substituted by Code of Civil Procedure (Punjab) Amendment Act, XIV of 2018 dated 20.03.2018 and the amended section is reproduced below: "Section 33. Judgment and decree. The Court, after the case has been heard, shall pronounce judgment maximum within fifteen days and on such Judgment a decree shall follow simultaneously ." (emphasis supplied) The Rules 6 and 7 of Order XX of the C.P .C. are reproduced below: "Rule 6. Contents of decree.---(1) The decree shall agree with judgment; it shall contain the number of the suit, the names and description of the parties, and particulars of the claim, and shall specify clearly the relief granted or other determination of the suit. (1-A) (2) (3) (emphasis supplied) "Rule 7. Date of decree. The decree shall bear date the day on which judgment was pronounced and when the judge has satisfied himself that the decree has been drawn up in accordance with the judgment, he shall sign this decree." (emphasis supplied) Section 33 of C.P.C., both before and after the amendment provides that the decree had to follow the judgment. The Rule 6 of Order- XX of C.P.C. provides that the decree sheet shall agree with the judgment and it is required to include number of the suit, the names and description of the parties, particulars of the claim, and clear specification of the relief granted or other determination of the suit. The Rule 7 of Order XX of C.P.C. provides that the decree shall bear the date the day on which judgment was pronounced with and additional condition that the judge before signing the decree has to satisfy himself that the decree has been drawn up in acco rdance with the judgement. The word 'shall' used in phrases 'on such judgment decree shall follow' used in section 33 and 'decree shall agree with the judgment' used in Rule 6 of the Order XX of C.P.C. clearly mean that it was the duty of the Court that decree sheet is drawn up in conformity with the judgment passed by the Court, which duty is to be performed with due
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diligence, as the mandate of rule 7 supra makes it imperative for the Judge, before signing the same, to satisfy himself through application of judicious mind that- the decree has been drawn up in accordance with the judgment. 11. The said aspect of the matter came into consideration in various judgments of superior courts, some of which are reproduced below as the same would further clarify the situation: In the case titled Mst. Mumtaz Begum v. Said Zaman and 11 others (1993 CLC 1202 ), the Lahore High Court observed as under: "Failure of the Court to draw up a formal decree containing its essentials as required by mandatory provisions in Section 33 of Civil Procedure Code read with Order XX, rule 6 ibid will not deprive a party of his right of appeal. It is open to the party to apply to the Court to prepare proper decree sheet. Even if the party fails to so apply , the appeal could not be dismissed as incompetent. Defect was not noticed at the limine stage. It was discovered much later at the time of hearing of argument on merits. It is well-settled that a party cannot be penalized for the act or neglect of the Court, or, its officials. None can deny that it was the duty of the court to prepare a proper and complete decree- sheet in lines with its judgment. If it fails to perform its duty, was it fair to punish the party for default of the Court. In the circumstances, lower appellate Court itself ought to have required the trial Court, to prepare correct decree- sheet and called upon the appellant to file its certified copy in court for fulfilling and complying with the mandatory Rule 1, Order XLI of Civil Procedure Code . The poor appellant had no hand in the mistake of the trial Court and yet she was punished by the appellate Court. I would thus accept the appeal, set aside the impugned order of Additional District Judge, Gujrat and direct rehearing of the appeal and its decision afresh on merits by the District Judge, Gujrat after rectification of the error in the manner indicated above. (emphasis supplied) In the case titled Messrs Lasbella Industrial Estate Development Authority , Hub through Managing Director and another v. Messrs Prism Printer (Pvt.) Ltd. through Director (PLD 2011 Quetta 48), the Quetta High Court while referring to section 33 and Rules 6, 7 and 8 of Order XX of C.P .C., observed as under: "Keeping in view the above mentioned Sections and Rules, the decree shall follow the judgment, while the decree not only contains number allotted to the suit, but complete names and description of the parties with particulars of claim, and also relief clearly specified therein. Above all the decree shall agree with the judgment........" In the case titled Dilmeer v. Rajab Ali and others (2003 MLD 484), the Lahore High Court while referring to Rule 6 of Order XX of C.P .C. has held that the decree must agree with the judgment. In the case titled Sh. Muhammad Sharif Uppal v. Sh. Akbar Hussain and others (PLD 1990 Lah. 229), the Lahore High Court observed as under: "22. Learned counsel for the plaintiffs/appellants in R.S.A. No. 143 of 1985 complained that the learned trial Court granted decree to the plaintiffs as is manifest from the judgment dated 1.11.1983 for rendition of accounts of the income of the said plots measuring 2 kanals 19 marlas and 17 marlas as also income of plot measuring 6 kanals 4 marlas, income of House No. D/753 and a portion of House No. D/13 but the decree which was prepared by the trial Court was wrongly described as decree for partition only. He argued that the learned lower appellate Court illegally declined the prayer of the appellant that the decree be amended accordingly on the erroneous assumption that the appellants were required either to file appeal or cross-objections. He argued that no appeal or cross- objections were required to be filed. The argument has considerable force. The learned trial Court in the judgment dated 1-11-1983 held that Muhammad Sharif the defendant was the accounting party , and that the plaintiffs were entitled to recover their share of income of plots measuring 2 kanals 19 marlas, plot measuring 17 marlas (not of the construction raised on both of them by the defendants) and also income of plot measuring 6 kanals 4 marlas, House No. D/753, and a portion of House No. D/13 for which the defendant was liable to render accounts. To this extent decree for rendition of account and recovery of their share of income was granted to the plaintiffs. It appears that while preparing the decree in pursuance to this judgment this part of the relief was not mentioned therein. It is mandatory requirement of Order XX, Rule 6, C.P.C. that the decree should agree with the judgment. The rule also provides that the decree shall specify clearly the relief granted. It was, therefore, a case where the Court failed to prepare the decree in accordance with the judgment as the relief granted to the plaintiffs regarding rendition of account and recovery of their share of income as stated above was not incorporated in the decree. It was therefore,
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legal, obligation of every Court where the matter was pending and for that matter the learned lower appellate Court to have passed an order for the amendment of the decree accordingly . The decree passed by the learned trial Court is hereby ordered to be modified / amended accordingly......." (emphasis supplied) 12. Furthermore, section 33 of the C.P.C. provides that the decree 'shall' follow the judgment and rule 6 of Order XX, C.P.C. provides that decree 'shall' agree with the judgment. Where a provision uses the word 'shall' and requires an authority to do something in a particular manner , it is deemed to be mandatory as laid down by the Supreme Court in The Collector of Sales Tax Gujranwala and others v. Messrs Super Asia Mohammad Din and Sons and others (2017 SCMR 1427 ), wherein it has been laid down that word 'shall' was to be construed in its ordinary grammatical meaning and normally the use of word 'shall' by the legislature branded a provision as mandatory , especially when an authority was required to do something in a particular manner . Ultimate test to determine whether a provision was mandatory or directory was that of ascertaining the legislative intent. While the use of word 'shall' was not the sole factor which determined the mandatory or directory nature of a provision, it was certainly one of the indicators of legislative intent. Other factors included the presence of penal consequences in case of non-compliance, but the clearest indicator was the object and purpose of the statute and the provision in question. Court was duty bound to garner the real intent of the legislature or expressed in the law itself. 13. The perusal of the afore-referred case laws and provisions of law cited above make it abundantly clear that it is a mandatory provision of law that the decree should agree with the Judgment and has to express what is determined in the judgment. Therefore, by not drawing decree sheet in accordance with the judgment, the court had not properly exercised the jurisdiction vested in it as this omission to prepare decree C that agreed with the judgment was against the principle of law, which provides that where a law required an act to be done in a particular manner it had to be done in that manner alone and such dictate of law could not be termed a mere technicality and if done otherwise it would be non-compliance of the legislative intent. Reliance is placed on Shahida Bibi and others v. Habib Bank Limited and others (PLD 2016 SC 995), Muhammad Anwar and others v. Mst. Ilyas Begum and others (PLD 2013 SC 255) and Zia ur Rehman v. Syed Ahmad Hussain (2014 SCMR 1015 ). Besides it is the duty of the court to apply correct law. Reliance is placed on judgment reported as Government of NW.F.P. and others v. Akbar Shah and others (2010 SCMR 1408 ) wherein it has been held as under: "............It is settled principle of law that it is the duty and obligation of the Court to apply correct law on the well- known maxim that judge must wear all the laws of the country on the sleeve of his robe and failure of the counsel to properly advice is not a complete excuse in the matter as law laid down by this Court in Muhammad Sarwar's case PLD 1969 SC 278 .........." The afore referred judgments lead us to the conclusion that not only it is the duty of the court to apply correct law but also to apply the law correctly . 14. Moreover , it is the decree and not the judgment that is to be executed. Relianc e in this behalf is placed on the case titled Rehmat Wazir and others v. Sher Aftal and others (2005 SCMR 668), wherein the Honourable Supreme Court has held as follows: "It is .a matter of settled law by this Court in Ghulam Muhammad's case PLD 1963 SC 265 that not the judgment but the decree is executable and executed" It is also pertinent to mention that the connection of a decree drawn in a suit with the judgment passed therein is such that the judgment is the substratum on which the decree has its foundation and it cannot stand independent of the same and decree falls down when its substratum (i.e. the judgment) ceases to exist or hold the field, exception being the decree being upheld on different grounds. Reliance is placed on the case titled Pakistan Industrial Credit and Investment Corporation Ltd. v. Mahboob Industries Ltd. and 10 others (PLD 1984 Kar. 82), wherein the Sindh High Court while referring to Section 33 and Rule 7 of Order XX of C.P.C. has held that where the judgment became null and void the decree that must follow the judgment shall also become void. 15. The aforesaid aspect of the matter gave rise to an anomaly , that although the decision of the Appellate Court had been upheld up to the Supreme Court, the decree sheet did not depict the matter in the terms actually decided
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by the appellate court whereby it had allowed the relief for possession and therefore, the same could not be executed to provide the relief of possession. This position had not emerged by any act or fault of the respondent/decree holder , rather the fault had been on the part of the court to draw a proper decree sheet, which gave rise to need to seek correction of decree to bring it in conformity with the judgment. 16. It is settled by now that the act of court shall prejudice no one and where any court did not comply with a mandatory provision of law or omitted to pass an order in the manner prescribed by law, then the litigant/parties could not be taxed, much less penalized for the act or commission of the court. Fault in such cases did lie with the court and not with the litigants and no litigant should suffer on such account unless he/they were contumaciously negligent and had deliberately not compl ied with mandatory provision of law. Reliance in this behalf is placed on Muhammad Ijaz and another v. Muhammad Shafi through L.Rs. (2016 SCMR 834) wherein it has been laid down as under: "17 ... ...There is a well-known maxim "Actus Curiae Neminem Gravabit" (an act of the court shall prejudice no man) thus, where any court is found to have not complied with the mandatory provi sion of law or omitted to pass an order , required by law in the prescribed manner then, the litigants/ parties cannot be taxed, much less penalized for the act or omission of the court. The fault in such cases does lie with the court and not the litigants and no litigant should suffer on that account unless he/they are contumaciously negligent and have deliberately not complied with a mandatory provision of law . (see PLD 1972 SC 69 )................... Reliance may also be placed on Wasal Khan and others v. Dr. Niaz Ali Khan (2016 SCMR 40) wherein it has been held as under: "Once it is established that initial error was committed by the learned Civil Judge then the blame cannot be shifted to the respondent/pre-emptor , in view of the well embedded principle that an act of the court shall prejudice none." In such like situation where injustice is caused due to act or omission of the court, the courts are required to remedy the defect that occurred as a consequence thereof. Reliance is placed on Sherin and 4 others v. Fazal Muhammad and 4 others (1995 SCMR 584 ) wherein it has been held as under: "13. We may refer here with advantage to the classic remarks of Lord Eldon in Pulteney v. Warren (1801) 6 Ves. 73, 92, quoted by Meclean C. J., in Lakhan Chunder Sen v . Madhu Sen (ILR 35 Calcutta 209) :- "If there be a principle, upon which Courts of justice ought to act without scruple, it is this; to relieve parties against that injustice occasioned by its own acts or oversights at the instance of the party, against whom the relief is sought. That proportion is broadly laid down in some of the cases:" This view was approved of by the House of Lords in The East India Company v . Campion (1837) 1 1 Bli. (ICS.) 158." In the same strain are the observations of Lord Cairns, L. C. in Rodger v. The Comptoir d'Escompte de Paris (1871) 3 P .C. 465 , quoted with the approval by Lord Carson in Jai Berham v . Kedar Nath (AIR 1922 PC 269) : "One of the first and highest duties of all Courts is to take care that the act of the Court does not cause injury to any of the suitors and when the expression 'the act of the Court', is used, it does not mean merely the act of the Primary Court, or of any intermediate Court of Appeal, but the act of the Court as a whole from the lowest Court which entertains jurisdiction over the matter up to the highest Court which finally disposes of the case:" More recently a practical application of this rule, which perhaps is in somewhat close proximity of the case in hand is demonstrated in Hidayatullah v. Murad A. Khan (PLD 1972 SC 69), when this…
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