1990 M L D 588 https://www.pakistanlawsite.com/Login/PrintCaseL...

1990 M L D 588

[Lahore]

Before Mian Allah Nawaz, J

BAHADUR ALI‑‑Appellant

versus

Syed GHULAM SABIR GILANI‑‑Respodent

Regular First Appeal No. 148 of 1986, decided on 21st November, 1989.

(a) Interpretation of statues‑‑

‑‑‑ Use of words "shall" or "may" in a statute‑‑‑Significance‑‑‑No hard and fast rule
can be laid down for construing a provision as a mandatory or directory‑‑‑Use of words
"shall" or "may" is not sure test for such determination‑‑‑Object of relevant provision
has to be taken into consideration after the examination of the whole of the statute in
which these provisions are embodied.

(b) Procedural law‑‑

‑‑‑ Such a law is to help and not to hinder the grant to the people of their rights‑‑ All
the technicalities have to be avoided unless their compliance is essential on the ground
of public policy‑‑‑Any system which gives effect to form and not to substance defeats
the substantive right and is not conducive to the object of dispensation of justice.

Imtiaz Ahmad v. Ch. Khushi Muhammad S.D.O. (Canal), Gojra District Lyallpur and
the District Election Officer, Lyallpur P L D 1903 S C 382 ref.

(c) Civil Procedure Code (V of 1908)‑‑

‑‑‑O.XVIII, Rr. 8 & 14‑‑‑Non‑compliance of O.XVIII, Rr. 8 & 14, C.P.C. in absence of
any allegation of prejudice was not of invalidating nature.

Promode Nath Sinha Roy and others v. Harishee Bagdhi AIR 1929 Calcutta 78 ref.

(d) Civil Procedure Code (V of 1908)‑‑

‑‑‑O. XX, Rr. 1, 2 & 3‑‑‑Non‑compliance of requirement of O. XX, Rr. 1, 2 & 3, C.P.C.
does not amount to nullification of the proceedings.

Fort Closter Jute Manufacturing Co. v. Chandra Kumar Das and another 51 IC 405 ref.

(e) Civil Procedure Code (V of 1908)‑‑

‑‑‑OXVIII, R.5‑‑‑Provisions of O. XVI11, R.5, C.P.C. are not of a mandatory character.

Elahi Bakhsh Kazi v. Emperor 45 IC 258 ref.

(f) Precedural law‑‑

‑‑‑ Provisions of procedural law are intended to facilitate and not to throttle the
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administration of justice‑‑‑Calls for substantial justice must prevail over the logic on
the basis of technicalities.

(g) Civil Procedure Code (V of 1908)‑‑

‑‑‑.O.XVIII, Rr. 8 & 14‑‑‑Object of O. XVIII, Rr. 8 & 14, C.P.C. is to insure the
accuracy of the record‑‑‑Duty of Court‑‑‑Non‑compliance or neglect of duty in the
context of OXVIII, Rr. 8 & 14, C.P.C. in absence of allegations of inaccurate
preparation of record or prejudice, is irregularity and not illegality.

The object of rules 8 and 14 of Order 18 of the Code of Civil Procedure is to insure the
accuracy of the record. The preparation of correct record is the foundation of
dispensation of justice as finally the judgment is to be rendered on the basis of this
record.

The trial Court shall prepare the record in accordance with these rules in order to
obviate any allegations or counter‑allegations in preparation of the incorrect record.

The duty cast upon the Courts is for the benefit of the litigant public. If there is any
non‑compliance or neglect in the performance of the duty that is subject to waiver if
the parties do not choose to make objection at the time of neglect or non‑compliance.

Non‑compliance or neglect of duty in the context of aforenoted rules in absence of

allegations of inaccurate preparation of record or prejudice is irregularity and is not
illegality.

Nand Lal and another v. Pooran and another A I R 1956 Raj. 9, Mrs.Dino Manekji
Chinoy and 8 others v. Muhammad Matin P L D 1983 S C 693, Muhammad Shafi v.
Sh.Muhammad Amin and another 198.1 C L C 1528, Muhammad Boota v. Faiz
Ahmad 1979 S C M R 465, lmtiaz Ahmad v. Ch. Khushi Muhammad S.D.O. (Canal),
Gojra, District Lyallpur and the District Election Officer, Lyallpur P L D 1963 S C 382,
Promode Nath Sinha Roy and others v. Harishee Bagdhi AIR 1929 Cal. 78, Fort
Closter Jute Manufacturing Co. v. Chandra Kumar Das and another 51 IC 405, Elahi
Bakhsh Kazi, v. Emperor 45 IC 258 ref.

(h) Negotiable Instruments Act (XXVI of 1881)‑‑‑

‑‑‑S.118‑‑‑Promissory note‑‑‑Execution of promissory note and receipt of

consideration was proved by statements of witnesses and scribe of document which
was attested by Notary Public‑‑‑Cross‑examination could not shake the evidence of
such witnesses‑‑‑Burden to prove otherwise, held, would shift to the objector to rebut
the evidence and the presumption flowing from S.118, Negotiable Instruments Act,
1881 that every negotiable instrument was with consideration.

Naghman Haider Zaidi and Laqa Haider Zaidi for Appellant.

Khizar Abbas Khan for Respondent.

Dates of hearing: 19th and 20th November, 1989.

JUDGMENT

Bahadur Ali, herein the appellant judgment‑debtor, has filed first appeal against the
judgment and decree passed by the learned District Judge, Lahore dated 30‑7‑1986
decreeing a summary suit on the basis of a pronote for Rs.30,000 in favour of Syed
Ghulam Sabir Gilani (herein the respondent/plaintiff).
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2. The brief resume of the appeal is that on 2‑7‑1985 Syed Ghulam Sabir Gilani
respondent instituted a suit for recovery of Rs. 30,000 on the basis of a promissory
note executed on 3‑7‑1982. The suit was resisted, objections were taken to the effect
that the suit was not competent as the promissory note was attestted by the Notery
Public and was, therefore, a bond and not a promissory note, that the promissory note
was a fictitious and forged document.

3. The learned trial Court framed the following issues in consonance with the divergent
pleadings of the parties:‑

(1) Whether the promissory note, relied upon by the plaintiff in this suit, is a bond and
as such the suit is not maintainable?

(2) Whether the document on the basis of which this suit is Filed is liable to be
impounded under Section 35 of the Stamp Act?

(3) Whether the promissory note in dispute has duly been executed by the defendant in
favour of the plaintiff?

(4) If issue above is proved, whether the promissory note is without consideration?

(5) Whether this Court lacks jurisdiction to try this suit?

(6) Whether the defendant is entitled to special costs under Section 35‑A, C.P.C2 If so,
to what amount?

(7) Relief.

4. The learned trial Court by judgment and decree dated 30‑7‑1986 decreed the suit.
The trial Court decided issues No.l, 2 and 5 together and held that the promissory note
was not a bond and was, therefore, not impoundable under Section 35 of the Stamp Act
and that the Court had jurisdiction to try the suit. Issues No.3 and 4 were decided
together and answered affirmatively in favour of the plaintiff. Hence this First Appeal.

5. Learned counsel for the appellant in support of appeal raised two‑fold objections;
firstly it was contended that the trial Court did not consider the evidence of DW‑1,
DW‑2 who had categorically stated that the promissory note was in fact without
consideration. Therefore, the finding of the trial Court on issues No.3 and 4 was totally
incorrect and needed to be reversed. Secondly it was urged with vehemence that the
trial Court did not conduct the trial in accordance with the mandatory requirement of
rules 8 and 14 of Order 18 of the Code of Civil Procedure which cast the duty upon the
learned trial Court to prepare a memorandum of evidence of witnesses if he did not
record the evidence of witnesses in his own hand. It was suggested that the duty cast
upon the trial Court under the aforenoted rules was of a compulsive character and,
therefore, its non- compliance had an effect of vitiating the whole proceedings.
Reliance was placed on Nand Lal and another v. Pooran and another AIR 1956
Rajasthan 9, Mrs. Dino Manekji Chinoy and 8 others v. Muhammad Matin PLD 1983
SC 693 and Muhammad Shafi v. Sh. Muhammad Amin and another 1984 CLC 1528.

6. It was contended that it was a settled principle of construction, that if a duty was cast
upon the public functionaries to perform their functions within the framework of a
particular procedure, the duty was of an imperative nature and its neglect would have a
vitiative effect upon all proceedings conducted by them.

7. On the other hand learned counsel for the respondent supported the impugned
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decision. On merits it was urged that the findings of the trial Court on issues No.3 and
4 were recorded after careful consideration of the evidence and material on record. As
far as the legal question was concerned, it was replied that the requirements under rules
8 and 14 of Order 18 of the Code of Civil Procedure were directory in nature. In this
context it was urged that the object of these rules was to insure the accuracy of the
record. In this case, the learned counsel for the appellant, it was urged, had not raised
any objection with respect to accuracy of the statements recorded by the trial Court. It
was vehemently contended, therefore, the non‑compliance of the aforenoted rules did
not occasion any prejudice and, therefore, the objection must fail on this account.

8. I have carefully heard the arguments of the parties and perused the record with their
capable assistance. As noted above, the case was founded upon the pronote EX.PI and
receipt Ex.PB. The execution of the pronote and receipt Ex.PB was proved by PW 1
Muhammad Amir, the scribe of the document, PW2 Syed Daood Hussain who attested
the document. PW3 Saleh Muhammad gave evidence in respect of the receipt of
consideration. The aforesaid witnesses were H subjected to cross‑examination but
nothing was extracted to shake their evidence, therefore, I am clear in my mind that the
execution of the document and the passing of the consideration stood amply proved by
the aforenoted evidence. The h burden shifted to the defendant/appellant to rebut the
evidence and presumption flowing from Section 118 of the Negotiable Instruments
Act, that every negotiable instrument is with consideration. The relevant portion of
Section 118 ibid is as follows:‑

118. Until the contrary is proved, the following presumption shall be made:‑

(a) of consideration; that every negotiable instrument was made or drawn for
consideration and that every such instrument, when it has been accepted, endorsed,
negotiated or transferred, was accepted, indorsed, negotiated or transferred, for
consideration;

(b) as to date that every negotiable instrument bearing a date was made or drawn on
such date;

(c) as to time of acceptance; that every accepted bill of exchange was accepted within a
reasonable time after its date and before its maturity;

(d) ..............................

The effect of section 118 ibid was examined by the Supreme Court in Muhammad
Boota v. Faiz Ahmad 1979 S C M R 465 in which while examining the question of
presumption it was laid down that:‑

"On going through the copies of the pleadings of the parties and the evidence of the
parties produced on this record, we have no hesitation in sharing this view with the
learned Judge of the High Court. In fact as significantly pointed by the lower appellate
Court Rashid Ahmad (D.W.3) in his cross‑examination had admitted the execution of
the promissory note by the defendant in favour of the plaintiff through the deed‑writer.
The thumb‑impression affixed on the promissory note in dispute was not seriously
denied by the defendant and was otherwise sufficiently proved by the evidence of the
plaintiff and his witnesses. Indeed the handwriting expert (PW 51 when produced by
the plaintiff in support of his case was not at all cross‑examined on the point. There
could be hardly any doubt as to the execution of the promissory note by the defendant
in favour of the plaintiff. Therefore, under Section 119 of the Negotiable Instruments
Act, it had devolved on the defendant to prove that the promissory note thus executed
by him was without consideration. Apart from the cogent and consistent evidence led
by the plaintiff to prove the payment of Rs.10,000 in cash by the plaintiff to the
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defendant as loan, the latter has miserably failed to discharge the onus of this issue
resting on him."

9. Applying these principles to the facts of this case it is quite clear that the defendant
failed to perform his part of burden to displace the presumption in favour of the due
execution and the passing of the consideration, in the promissory note. The evidence
.of DW 1 and DW 2 is hardly of any help to the case of the defendant. The aforesaid
witnesses made the deposition with respect to version of a sale of plot by the defendant
in favour of the plaintiff. They never uttered a word with respect to execution of
promissory note. DW 2 uttered ignorance about the execution of promissory note or
receipt of consideration. Therefore, the evidence worth consideration is only the
evidence of Bahadur Ali appellant himself. He stated that he purchased trees worth
Rs.1,50,000 from the plaintiff. He did make a payment of Rs.5,000 as earnest money to
him. It was only when he started cutting the trees, he became aware that the trees were
situated in the land belonging to Auqaf Department. He, therefore, went to the plaintiff
and stated that deal was not acceptable to him, that he wanted to bring an end to the
contract whereupon the plaintiff asked him to cut as many trees as he could, that he
will receive the price for the cut trees, that he had paid him Rs.80,000 and Rs.35,000
were outstanding. In order to wipe out the outstanding amount he made a sale of plot in
favour of the plaintiff in consideration of Rs.60,000. Unfortunately the price of plot
was recited in the sale‑deed as Rs.15,000. During this bargain, the plaintiff obtained his
signatures through deceit and fraud, on the document.

10. It will be noticed that the version given by the appellant has no legs to stand upon.
The version was not given in the application for leave to defend. This version was even
withheld in the written statement, that no offset was claimed, therefore, I have no
hesitation in corning to the conclusion that the version given by the plaintiff is not
worth credence and was rightly disbelieved by the learned trial Court. I, therefore,
repell the argument of the learned counsel for the appellant on merits.

11. Reverting to the legal objection that the prescriptions in rules 8 and 14 of order 18
of the Code of Civil Procedure are compulsive, it will be appropriate to notice the
relevant rules. These rules are as under:‑

Rule 8: Memorandum when evidence not taken down by Judge.‑‑Where the evidence
is not taken down in writing by the Judge, he shall be bound, as the examination of
each witness proceeds, to make a memorandum of the substance of what each witness
deposes, and such memorandum shall be written and signed by the Judge and shall
form part of the record.

Rule 14: Judge unable to make such memorandum to record reasons of his
inability.‑‑(1) Where the Judge is unable to make a memorandum as required by this
Order, he shall cause the reasons of such inability to be recorded, and shall cause the
memorandum to be made in writing from his dictation in open Court.

(2) Every memorandum so made shall form part of the record.

12. It is a well‑settled principle of law that no hard and fast rules can be laid down for
construing a provision as mandatory or a directory. The use of words "shall" or "may"
are not sure test for such determination. The object of the relevant provision has to be
taken into consideration after the examination of the whole of the statute in which
these provisions are embodied.

13. The object of the Procedural Law is to help and not to hinder the grant to the
peoples of their rights. All the technicalities have to be avoided unless they are
essential to comply with them on the ground of public policy. Any system which gives
1990 M L D 588 https://www.pakistanlawsite.com/Login/PrintCaseL...

effect to form and not to substance defeats the substantive right and is not conducive to
the object of dispensation of justice. This principle was a enunciated in Imtiaz Ahmad
v. Ch. Khushi Muhammad S.D.O. (Canal), Gojra District Lyallpur and the District
Election Officer, Lyallpur P L D 1963 S C 382.

14. It will be appropriate to examine certain precedents in which the effect of

non‑compliance of rules 8 and 14 has been considered. This proposition came up for
consideration in Promode Nath Sinha Roy and others v. Harishee Bagdhi A I R 1929
Calcutta 78. While considering the effect of non‑compliance of the aforenoted rules, it
was laid down that the non‑compliance with the aforenoted rules in absence of any
allegation of prejudice was not of invalidating nature. The relevant observations are as
follows:‑

"But there was only one record of the evidence, and that was not taken down in writing
by the Judge himself, and no memorandum was made or caused to be made by the
Judge. The provisions of Order 18, Rr.5, 8 and 14, therefore, were not complied with.
In my opinion, however, the recording of the evidence in the manner followed in the
present case was not an illegality that rendered the decree based upon it null and void,
but amounted merely to an irregularity; Fort Closter Jute Manufacturing Co.v. Chandra
Kumar Das (1919) 46 Ca1.979, Queen Empress v. Gopal Goundan (1896) 19 Mad.
269)".

15. In Calcutta case reported as Fort Closter Jute Manufacturing Co. v. Chandra Kumar
Das and another 51 Indian Cases 405 a Division Bench considering the effect of
non‑compliance with rules 1, 2 and 3 of Order 20 of the Code of Civil Procedure came
to the conclusion that the non‑compliance with the requirement of the aforenoted rules
never amounted to nullification of the proceedings.

It was observed as follows:‑

"The determination of this point must depend upon the nature of the rules which have
been infringed; if the act of the Court was without Jurisdiction or infringed a rule
prescribed on grounds of public policy, the proceeding became a nullity; if it was, on
the other hand, only an irregular exercise of jurisdiction, a contravention of rules
framed by the Legislature with a view to afford protection to the individual litigant, he
might clearly waive the benefit thereof and could not be entitled to obtain a reversal of
the decree except on proof that the merits had been affected (section 99, Civil
Procedure Code). The mere fact that the Court had acted in a manner contrary to that
prescribed by the Code does not necessarily show that what was done was a nullity:
Ashutosh Sikdar v. Behari Lai Kirtania (35 C 61), the effect depends upon the nature,
scope and object of the particular provision which has been violated. As pointed out in
Macnamara on Nullities and Irregularities, though no hard and fast line of demarcation
can be drawn, an irregularity is a deviation from a rule of law which does not take
away the foundation or authority for the proceeding or apply to its whole operation,
whereas a nullity is a proceeding that is taken without any foundation for it or is so
essentially defective as to be of no avail or effect whatever, or is void and incapable of
validation. See the observation of Coleridge, J., in Holmes v. Russell (1841‑ 9 Dowl.
487) and of Taunton, J. in Garrat v. Hooper (1831 ‑ 1 Dow1.28). If we test the case
before us in the light of these principles, what is the position? As explained in Sukh
Lai Sheikh v. Tara Chand Ta (33 C.68), jurisdiction, which is the power of a Court to
hear and determine a cause, to adjudicate or exercise judicial power in relation thereto,
divides itself under three heads; with reference to (a) the subject‑matter, (b) the parties,
and (c) the particular question which calls for decision. The substance of the matter
then is that here the Court had jurisdiction to try the controversy between the parties,
but acted, in the exercise of its undoubted jurisdiction, in a mode contrary to that
prescribed by Statute. Non‑compliance with every rule of procedure does not,
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however, necessarily destroy the validity of the whole proceeding. We must

accordingly examine the purpose of the rules which have been infringed. The object of
the Legislature seems to have been two‑fold, namely, (a) that the contending parties
should be speedily and publicly apprised of the decision of the Court, and (b) that the
Court should have an opportunity for immediate reconsideration on. the representation
of the parties, which, after the judgment has been signed, can be done only on a formal
application for review (section 114) or for amendment (section 152). The provisions of
the law relating to the delivery of judgments may consequently be deemed to have
been framed for the benefit of the parties litigant, and their contravention is an
irregularity curable by consent or waiver. This is clearly not a case of lack of inherent
jurisdiction, where the maxim applies that consent cannot give jurisdiction, Golab Sao
v. Chowdhury Madho Lai (2 C L.H.384), Gurdeo Singh v. Chandrika Singh (1
Ind.Cas.913). Nor is this a case of a mandatory provision of law, the infringement
whereof nullifies the entire proceedings: Ashutosh Sikdar v. Behari Lal Kirlania (35 C
61), Liverpool Borough Bank v. Turner (7960 ‑ 2 Deg F & J 502). In the case before
us, when the judgment prepared by Mr.Ghose was about to be pronounced by Mr.
Mookerjee, no objection appears to have been taken by either party; if objection had
been taken, the delivery of the judgment might and would in all probability have been
postponed till Mr. Ghose could return to headquarters. Finally, there is no suggestion
that the appellant has been prejudiced in any manner by the failure of the Court to
pronounce judgment in conformity with the rules."

16. The same principle was highlighted in Elahi Baksha Kazi v. Emperor (45 Indian
Cases 258 ‑ Calcutta case) while considering the effect of non‑compliance g of rule 5
of Order 18 of the Code of Civil Procedure, the Court laid down that the rule was not
of a mandatory character.

17. A few words may be said about Nand Lai and another v. Pooran and another A I R
1956 Rajasthan 9 on which the learned counsel for the appellant heavily depended. The
facts of the case are entirely distinguishable and are of least help to the case in hand. In
this case, his Lordship was considering a revision petition tiled by the plaintiff against
the judgment of a Civil Judge in two suits for recovery of the prices, as a Small Cause
Court in which no appeal was provided. 1n this case, the learned trial Court in
violation of rules 13 and 14 got recorded the memorandum of evidence by a clerk
while the learned Judge remained busy in doing other work. An affidavit was given
that the whole proceedings before the first Court were conducted in highly
surreptitious manner. The reply of the Court was not accepted as satisfactory by the
Court. In the context of the aforesaid circumstances, the Court accepted the revision
petition and held that the trial was conducted in the manner which was not prescribed
by the Court and, therefore, it was nothing but travesty of the trial.

18. As indicated in Nand Lal and another v. Pooran and another A I R 1956 Rajasthan
9, the learned Judge was examining the case in which the learned trial Judge had
completely defied the clear mandate of the law in an extremely brazen manner
occasioning serious doubt about the record of the case.

19. The ratio emerging from the aforesaid principles is:‑

(i) that the provisions of the procedural law are intended to facilitate and not to throttle
the administration of justice. The calls of substantial justice must prevail over the logic
on the basis of technicalities.

(ii) that the object of rules 8 and 14 of Order 18 of the Code of Civil Procedure is to
insure the accuracy of the record. The preparation of correct record is the foundation of
dispensation of justice as finally the judgment is to be rendered on the basis of this
record;
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(iii) that the trial Court shall prepare the record in accordance with these rules in order
to obviate any allegations or counter allegations in preparation of the incorrect record;

(iv) that the duty cast upon the Courts is for the benefit of the litigant public. If there is
any non‑compliance or neglect in the performance of the duty that is subject to waiver
if the parties do not choose to make objection at the time of neglect or non‑compliance;
‑

(v) that non‑compliance or neglect of duty in the context of aforenoted rules in absence
of allegations of inaccurate preparation of record or prejudice is irregularity and is not
illegality.

20. Applying these principles to this case I have no difficulty in coming to the
conclusion that neither the appellant raised any objection in respect of this non
-compliance before the trial Court nor raised any objection with respect to any
accuracy in the preparation of the record occasioning prejudice or injustice to him.
Therefore, I am clear in my mind that the objection rooted in technicalities must fail
and is accordingly repelled.

21. No other point was raised before me.

22. In the result I find no substance in this appeal. The decree and judgment passed by
the trial Court is based upon the correct appraisement of evidence and application of
law. The appeal is accordingly dismissed with costs.

M.B.A./B‑169/L Appeal dismissed.