9. The aforesaid provision of law came
up for consideration before the Hon’ble Apex Court
in the case reported as Messrs S.M. Yusuf and Bros. ..Vs.. Mirza Muhammad Mehdi Pooya
(PLD 1965 Supreme Court 15), and after
considering the authorities cited at Bar the purpose
underlying the above provision and its application
to the various disputes were summarized by the
Apex Court as under:-
“The term employed to confer the power are of the widest amplitude to enable an Appellate Court to pass decrees according to the justice of the case. The language used is affirmative, and the rule is further strengthened by non obstante clauses, giving the clear impression that the intention is beneficial, so that no legal right should be denied which the Appellate Court considers should be allowed within the framework of the suit. The non obstante clauses are particularly significant. The fact that the appeal is as to a part only of the decree will not, by itself, restrain the Appellate Court’s power. Here the whole decree was before the Appellate Court, but the other non obstante clause is directly relevant, for it totally avoids any condition that a party seeking the benefit of the rule should itself have filed an appeal or objection. Therefore, the mere fact of the plaintiff not having filed an appeal against the failure of the trial Court to grant a decree against Amanullah Kirmani would not by itself be sufficient to justify refusal to exercise the power under the rule. The principle as stated in the judgment of the High Court, namely, that in the absence of a counter appeal being filed a decree against another defendant cannot be given not only constitutes a fetter upon the extremely wide power given to the appellate Court by the Code, but may also be thought to be in direct contravention of a clear provision in the rule. We have accordingly referred to the earlier judgment of the same Court in the earlier case of Bakhsh Illahi & Sons to examine the arguments there set out. Four precedent judgments are cited. From three of them, which are mentioned without reference to their particular facts, general propositions are extracted to the effect that the power give by the rule is widely expressed and must be applied with discretion, where interference is required to “adjust the right of the parties in accordance with justice, equity and good conscience” or where the failure to exercise the power “would lead to impossible, contradictory and unworkable orders”. These particular considerations undoubtedly are circumstances specified, they would be in excess of the power given to the Courts to interpret and apply a rule expressed in such wide terms as is rule 33. The rule confers unfettered discretion, and anything expressed in negative or restrictive terms, affecting its application, must be accepted as applying only to the particular facts of the case to which the rule is being applied by interpretation. Such an interpretation cannot be extended to all or any other cases, for, in each one, the application of the rule must be made beneficially, and in accordance with the relevant facts. The single case cited by the High Court with reference to its facts is that of Muhammad Khaleef Shirazi (1) which clearly shows points of difference from the present case. The fact were of a much more complicated character than they are in this case and in the result of Privy Council declined to interfere on behalf of the plaintiff to declare the liability of one of the defendants against whom his case had been expressly dismissed by the trial Court, and he had not appealed against that decision. The Judicial Committee holding that in effect, the plaintiff was moving an appeal direct to the Privy Council from the decree of the trial Judge which is not allowed under the Civil Procedure Code opined further that Order XLI, rule 33, C.P.C, was not intended to apply to such an appeal.”
“The term employed to confer the power are of the widest amplitude to enable an Appellate Court to pass decrees according to the justice of the case. The language used is affirmative, and the rule is further strengthened by non obstante clauses, giving the clear impression that the intention is beneficial, so that no legal right should be denied which the Appellate Court considers should be allowed within the framework of the suit. The non obstante clauses are particularly significant. The fact that the appeal is as to a part only of the decree will not, by itself, restrain the Appellate Court’s power. Here the whole decree was before the Appellate Court, but the other non obstante clause is directly relevant, for it totally avoids any condition that a party seeking the benefit of the rule should itself have filed an appeal or objection. Therefore, the mere fact of the plaintiff not having filed an appeal against the failure of the trial Court to grant a decree against Amanullah Kirmani would not by itself be sufficient to justify refusal to exercise the power under the rule. The principle as stated in the judgment of the High Court, namely, that in the absence of a counter appeal being filed a decree against another defendant cannot be given not only constitutes a fetter upon the extremely wide power given to the appellate Court by the Code, but may also be thought to be in direct contravention of a clear provision in the rule. We have accordingly referred to the earlier judgment of the same Court in the earlier case of Bakhsh Illahi & Sons to examine the arguments there set out. Four precedent judgments are cited. From three of them, which are mentioned without reference to their particular facts, general propositions are extracted to the effect that the power give by the rule is widely expressed and must be applied with discretion, where interference is required to “adjust the right of the parties in accordance with justice, equity and good conscience” or where the failure to exercise the power “would lead to impossible, contradictory and unworkable orders”. These particular considerations undoubtedly are circumstances specified, they would be in excess of the power given to the Courts to interpret and apply a rule expressed in such wide terms as is rule 33. The rule confers unfettered discretion, and anything expressed in negative or restrictive terms, affecting its application, must be accepted as applying only to the particular facts of the case to which the rule is being applied by interpretation. Such an interpretation cannot be extended to all or any other cases, for, in each one, the application of the rule must be made beneficially, and in accordance with the relevant facts. The single case cited by the High Court with reference to its facts is that of Muhammad Khaleef Shirazi (1) which clearly shows points of difference from the present case. The fact were of a much more complicated character than they are in this case and in the result of Privy Council declined to interfere on behalf of the plaintiff to declare the liability of one of the defendants against whom his case had been expressly dismissed by the trial Court, and he had not appealed against that decision. The Judicial Committee holding that in effect, the plaintiff was moving an appeal direct to the Privy Council from the decree of the trial Judge which is not allowed under the Civil Procedure Code opined further that Order XLI, rule 33, C.P.C, was not intended to apply to such an appeal.”
Part of Judgment of
Lahore High Court
WP- Family Law
1447-10
2015 LHC 8916
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