MUHAMMAD HANIF and others vs MUHAMMAD and others

1. ' MUHAMMAD AFZAL ZULLAH, CI-These two matters Civil Appeal No,525 of 1988 and Civil Petition for Leave to Appeal No,1022 of 1988 arise out of the same judgment of the High Court passed in a case between the same parties. The Civil Petition in fact was filed in pursuance of the observations of this Court while passing the leave grant order in the other case on 29-8-1988 by way of abundant caution. Accordingly it is time-barred. The delay, in the aforenoted circumstances, is thus condoned.

2. ' The petitioners filed a suit for permanent injunction against respondent No, 1 in the Civil Appeal.

3. When during the pendency of the suit an alienation took place in favour of respondents Nos. 2 to 6 in appeal (they are the respondents Nos. 1 to 5 in the Civil Petition for Leave to Appeal), they were accordingly added as additional defendants in the suit. It was decreed by the trial Court. The two sets of the defendants--one, the original and the other the subsequent vendees (made defendants) filed two separate appeals against the same judgment and decree. They were allowed by the District Court (an Additional District Judge) and the petitioners' suit was dismissed.

4. ' The petitioners then filed two Regular Second Appeals with court-fee of Rs, 15 each because as it appears from the pleadings the same was paid at the time of the filing of the suit, as well as at the time of the First Appeal/s. These appeals were filed within time. The High Court office raised the objection that appeals were not competent. They should have been revisions. The counsel for the appellants acting on this objection/suggestion converted the Regular Appeals into two Civil Revisions. They were numbered as 982 of 1978 and 983 of 1978. #TBS 862 SC #TBE ' At a subsequent stage on an objection raised from the respondents side all concerned agreed that in fact the Regular Second Appeals (as they were originally filed) should have been preferred and that the Civil Revisions thus were not competent. Accordingly, the plaintiff/present appellants side made necessary applications for correction of records. Not only this they sought time to supply deficiency in court-fee and also to supply the copies of judgments and decrees of the lower Courts to be placed on one or the other civil revision. The deficiency in this behalf had occurred due to the aforestated confusion about the competency of revisions and/or appeals. It is stated that the copies were ordered to be supplied and the delay in that behalf stood condoned. The deficiency in the court-fee also was ordered to be made up and thus the delay, if any, it is stated stood condoned. Be that as it may, at the final hearing of all these matters the learned Single Judge in the High Court refused to convert the civil revisions into appeals and held that the appeals in any case would be time-barred on account of insufficient court-fee. It was also held that non-supply of the copies of the appellate Court and the trial Court orders at the High Court stage in one appeal/revision adversely affected the institution of the matters and thus even if the copies were supplied subsequently the bar of limitation had set in. Similar observations were also made in connection with the objections raised by the Office with regard to the aforestated deficiencies and re-filing of the matters after the expiry of the period of limitation. Leave to appeal (Civil Appeal No, 525 of 1988) was granted to examine the validity of the approach of the High Court in the aforestated circumstances with particular reference to case-law regarding conversion of one matter into another--it being the question of form thereof and the effect of deficient court- fee on the question of limitation. In addition some judgments had also been rendered regarding the filing of the copies of the judgments and decrees of the lower Courts, in appeals.

5. ' We have heard both the learned counsel at some length and have also perused the record. It has been established from objection-sheet prepared by the High Court office at the time of the initial filing of the Regular Second Appeals, that it was on account thereof that the appeals were requested to be treated as Civil Revisions. If the office of the High Court would not have committed this initial mistake of raising a wrong objection these cases might not have been before this Court today. Be that as it may, the office represented the Court and no party should be allowed to suffer so long as the harm can be prevented. Accordingly, while dealing with the specific questions raised in this case this overriding principle and the facts and circumstances in present cases will have to be kept in view.

6. ' It has been held in the case of Siddique Khan and 2 others v. Abdul Shakur Khan and another (PLD 1984 SC 289) that in suits and appeals at least one chance for supplying the deficiency in court-fee has to be granted as of right. Learned counsel for the respondents in this case tried to overcome this difficulty by the argument that this one chance was granted by the Court to the appellants on their asking, therefore, the rule laid down in the case of Siddique Khan stood satisfied. We do not agree with him. The High Court while granting time for the supply of the deficient court-fee had not specified the amount of deficiency. Therefore, in substance the condition was not satisfied. The revisions, if they would have been converted into appeals, could not have been treated as time- barred.

7. ' The question whether a Civil Revision could be converted into an appeal and vice versa stands now settled by some recent judgments of this Court. For example, in Abdul Aziz and others v. Sheikh Abdur Rahim and others (PLD 1984 SC 164) while assuming that a Civil Revision could be converted into a Second Appeal it was observed that the relevant date on which the Second Appeal should be deemed to have been filed would be the date on which misconceived Civil Revision Petition is instituted or the date the request is made for its conversion or the date the request is allowed. Further, it was observed that it would depend upon the circumstances of each case as to what further conditions were to be satisfied after conversion and that ordinarily, subject to such conditions, conversion had to be from the date the Civil Revision was initially instituted. In this case also even if the initial filing of the Regular Second Appeals is ignored the date of the initial institution shall remain the same because the question of court-fee creating a bar of limitation, as held above, does not arise. Hence on the conversion of two Civil Revisions they would be treated as having been filed within time.

8. ' The next two technical barriers--one regarding the non-supply or the late supply of the copies of the lower Courts' judgments and decrees and second the so-called late refiling of the Civil Revisions after removing the objections, are also of procedural nature and did not create any substantive bar.

9. ' Learned counsel for the respondent, it has to be stated (to be fair to him) brought to our notice amendment in the Code of Civil Procedure made by the Lahore High Court which empowered even the appellate Court to grant exemption regarding the filing of the copy of the trial Court judgment and decree in cases like the present one. But he also pointed out that this possibility by itself may not be sufficient to overcome the technical defect because the amendment has been made only in Order XLI, Rule 1, C.P.C. Which deals with the First Appeals. Firstly, this hypertechnicality in a procedural matter cannot be allowed to trap a litigant. Order XLII of the C.P.C. Provides that the rules of Order XLI shall apply, so far as may be to appeals from appellate decrees. Hence relevant rule as amended by the Lahore High Court under Order XLI would be deemed to be applicable, mutatis mutandis, when processing the Second Appeals filed in the High Court. This objection also, therefore, is without force. In the circumstances of this case the office of the High Court should have allowed exemption and if it had failed to perform its function properly it was amply a fit case for making the same orders by the High Court itself. An added reason was that in case the proceedings were treated in Second Appeal, one copy of the judgment and decree of the lower appellate Court having admittedly been supplied, there was no need to insist upon the supply of a second set of the same judgment and same decree. It was amply fit case to grant exemption if it was not earlier allowed by the office.

10. ' Regarding the supply of the copy of the trial Court judgment and decree in case as visualised above the matters were to be treated as Second Appeals. The Lahore High Court made a similar amendment as earlier noticed; namely, that in addition to the copies specified in Order XLI, Rule 1, C.P.C. The memorandum of appeal shall be accompanied by a copy of the judgment of the Court of first instance unless the appellate Court dispensed therewith. In this case we are certain that if there would not have been the other issues more vital in nature relating to court-fee and conversion of Civil Revisions into appeals the High Court, would have certainly exercised this power and would have dispensed with the copy of the trial Court judgment. The aforenoted circumstances fully justify it. Accordingly, there is no force in the ground relating to the supply of the relevant copies so as to create a bar for conversion of the Revisions into Regular Second Appeals on the assumption that this would also influence the question of limitation.

11. ' The last so-called impediment relating to the objections raised by the office we have already made some comment. The main amongst them misled all concerned even the Court. Be that as it may, our reading of the relevant dates does not show any contumacious disregard by the appellants' counsel of the objections raised by the High Court office and the response made within reasonable time. It has not been argued before us that the office had specified the number of days for removing the objection and further that such a condition had been unreasonably ignored. The appellants side remained vigilant. Not only this, its over vigilance with regard even to a wrong objection raised by the office, prolonged the litigation unnecessarily.

12. ' In the light of the foregoing discussion there is no alternative but to allow Civil Appeal No, 525 of 1988 and remand the case to the High Court for fresh decision.

13. ' The question of treatment of the Civil Petition for Leave to Appeal No,1022 of 1988 has presented some difficulty--rather a confusion. It is admitted that only one first appeal from the respondents side by all the defendants was necessary. However, they having filed two appeals, present appellants/plaintiffs also thought it proper to initially file two Regular Second Appeals. If only one appeal would have been filed it is doubtful whether it could be held to be incompetent without there being another formal Second Appeal simply because there were two First Appeals. In order to curtail unnecessary prolongation of litigation on such like questions the appellants side did not commit any illegality nor even a procedural irregularity by filing an additional appeal by way of abundant caution. It was on account of all this that when granting leave to appeal in one petition initially filed by the appellants, this Court also felt that unnecessary controversy on this issue can be avoided by the petitioners filing another formal petition for leave to appeal. The same was accordingly filed. As it arises out of the same case and same points we having already condoned the delay, consider it amply fit for being converted into appeal.

14. ' Accordingly, both these appeals are allowed. The impugned judgments and decrees are set aside. The matter is remanded to the High Court. The two Civil Revisions Nos. 982 of 1988 and 983 of 1988 are converted into Regular Second Appeals which shall be deemed to be validly entertained and pending in the High Court for decision on merits. The so-called defects notwithstanding, which in reality as discussed above are no real defects, the appeals shall be deemded to have been filed within limitation and still pending for decision by the High Court on merits. With this remand order both these matters stand disposed of. There shall be no order as to costs.