P L D 2019 Lahore 97 (PLP)

SHAHID BILAL HASSAN, J.--Precisely, the predecessor in interest of the petitioners namely Dad instituted a suit for declaration on 20.09.1999 in which he challenged the vires of mutation No.249 dated 16.04.1999 asserting therein that he was owner of the suit property falling in Khewat No.15, Khatooni No.148, measuring 56 kanals 10 marlas of square No.28, Killa Nos.4, 7, 14, 17 and 24 situated in Chak No.650/1-GB, Tehsil Jaranwala, District Faisalabad, which was owned by the Provincial Government and in the year 1956 the suit property was allotted to the predecessor of the petitioners namely Dad under "Bedakhal Muzaraen Scheme", whereas "Baie-Sletani" dated 14.11.1983 was processed and mutation No.132 was sanctioned in the name of the predecessor of the petitioners. He (Dad) neither sold that property to anyone else not he affixed his thumb impression on any document, therefore, possession over the suit property may not be disturbed. The respondents contested the suit by filing written statement on 13.03.2000. Out of the divergent pleadings of the parties, the learned trial Court framed issues on 27.07.2001. Both the parties adduced their respective evidence. The learned trial Court, after hearing arguments, vide judgment and decree dated 17.02.2010 decreed the suit in favour of the petitioners. The respondents, being aggrieved, preferred appeal on 24.02.2010, which was accepted vide impugned judgment and decree dated 13.04.2011 and suit of the petitioners was dismissed while setting aside the judgment and decree ibid passed by the learned trial Court. Therefore, the instant civil revision has been filed.

2. Learned counsel for the petitioners has argued that the impugned judgment and decree of the learned appellate Court is against law and facts of the case as the learned trial Court has rightly decided all the issues in favour of the petitioners. Even the learned appellate Court has decided issues Nos.1, 2 and 5 in favour of the petitioners but the learned appellate Court has failed to comprehend that when the petitioners instituted suit for declaration on 20.09.1999, they were in possession, therefore, there was no need for seeking possession. The petitioners were dispossessed by the respondents, upon which FIR bearing No.478/1999 dated 24.09.1999 under sections 448/337-H(2)/148/ 149/395 P.P.C. was registered at Police Station Lundian Wala. Adds that prior to this, the respondents Qaim and Muhammad Ali also filed a suit on the basis of oral agreement on 28.04.1984, which was dismissed on 17.01.1979 and appeal against the same was also dismissed, copy of which were exhibited as Ex.P12 and Ex.P13, but all these documents were ignored by the learned appellate Court. The other documents exhibited on record as Ex.P14, Ex.P17 and Ex.P1 have totally been ignored by the learned appellate Court and basing his view totally on surmises and conjectures has passed by the impugned judgment and decree, thus, the same is not sustainable in the eye of law. In addition to this, it is settled principle of law that technicalities should not create hurdles in the way of substantial justice; if a party seeking declaration had failed to claim consequential relief, he should not have been non-suited on technical grounds. As such, by allowing the civil revision in hand, the impugned judgment and decree may be set aside and suit of the petitioners may be decreed by restoring the judgment and decree dated 17.02.2010 passed by the learned trial Court.

3. On the contrary, learned counsel for the respondents have argued that suit of the petitioners has rightly been dismissed by the learned appellate Court, because they had no right to claim declaration in absence of prayer for possession, as such the suit was incompetent. They have supported the impugned judgment and decree and have prayed for dismissal of the civil revision in hand. Reliance has been placed on Dilmir v. Ghulam Muhammad and 2 others (PLD 2002 Supreme Court 403) and Ali Muhammad and another v. Muhammad Bashir and another (2012 SCMR 930).

4. Heard.

5. The moot point involved in this case is whether without claiming or praying consequential relief, when otherwise the plaintiff succeeds in proving his claim for declaration, his suit can be decreed or not? When such a point came up before the Hon'ble Supreme Court, it was settled through reported judgment Mst. Arshan Bi through Mst. Fatima Bi and others v. Maula Bakhsh through Mst. Ghulam Safoor and others (2003 SCMR 318), referred by learned appellate Court in its impugned judgment but could not conceive its ratio in its true perspective, and it was invariably held:-- ' If a party seeking declaration has failed to claim consequential relief, he should not have been non-suited on technical grounds. It has been held time and again by this Court that technicalities shall not create hurdles in the way of substantial justice. Rules and regulations are made to foster the cause of justice and they are not to be interpreted to thwart the same. A heavy duty is cast upon the Courts to do substantial justice and not to deny the same on mere technicalities. Reference in this regard is made to the case of Ch. Akbar Ali v. Secretary, Ministry of Defence, Rawalpindi and another (1991 SCMR 2114) where it was held as under:- "In the exercise to do justice in accordance with law the Court and forums of law cannot sit as mere spectators as if at a high pedestal, only to watch who out of two quarreling parties wins. See the judgment of this Court in the case of Muhammad Azam v. Muhammad Iqbal and others (PLD 1984 SC 95 at page 132) and Civil Appeal No. 789 of 1990, decided on 26-6-1991 (Syed Phul Shah v. Muhammad Hussain PLD 1991 SC 1051). On the other hand deep understanding and keen observance of proceedings is a sine qua non for doing justice in the Constitutional set up of Pakistan. Those Rules of adversary system based merely on technicalities not reaching the depth of the matter, are now a luxury of the past. Neither of the parties can be permitted to trap an improperly defended or an undefended or an unsuspecting adversary by means of technicalities when the demand of justice is clearly seen even through a perfect trap. It will make no difference if the litigant parties are citizens high or low and/ or is Government or a State institution or functionary acting as such. " Reference is also made to the case of Manager, Jammu and Kashmir, State Property in Pakistan v. Khuda Yar and another (PLD 1975 SC 678) wherein the learned Judge of this Court held that mere technicalities, unless offering insurmountable hurdles, should not be allowed to defeat the ends of justice. The learned Judge further quoted the following passage from an earlier illuminating judgment of this Court rendered by Kaikaus, J. in Imtiaz Ahmad v. Ghulam Ali (PLD 1963 SC 382):- "I must confess that having dealt with technicalities for more than forty years, out of which thirty years are at the Bar, I do not feel much impressed with them. I think the proper place of procedure in any system of administration of justice is to help and not to thwart the grant to the people of their rights. All technicalities have to be avoided unless it be essential to comply with them on ground of public policy. The English system of administration of justice on which our own is based may be to certain extent technical but we are not to take from that system its defect. Any system which by given effect to the form and not to the substance defeats substantive rights is defective to that extent. The ideal must always be a system that gives to every person what is his." The denial of relief to a party simply on the ground that consequential relief was not claimed would, in no circumstances, advance the cause of justice. It has been held time and again that the natural result of declaration would be that consequential relief has to be given by the Court even if it is not claimed. The trial Court in such like circumstances may call upon a party to amend the plaint to that extent and direct him to pay court-fee, if any. Reliance in this respect is placed upon the case of Ahmad Din v. Muhammad Shafi and others (PLD 1971 SC 762) where it was observed as under:- "The contention of the learned counsel for the appellant that the suit could not fail merely by reason of the fact that the consequential relief by way of possession had not been claimed is not altogether without substance. If his suit was otherwise maintainable and he was otherwise entitled to the relief it was open to the Courts to allow him to amend the plaint by adding a prayer for possession and paying the appropriate ad valorem court-fees and then to grant him relief even though he had not specifically asked for it." Same view was adopted by this Court in Altaf Hussain alias Mushtaq Ahmed v. Muhammad Din and others (2010 CLC 1646- Lahore) and Muhammad Yar v. Muhammad Bukhsh (2017 CLC Note 11).

6. Facts and circumstances of the present case are at par with the above referred judgment, as in the present case the petitioners failed to claim consequential relief of possession, so the learned appellate Court, when found the petitioners entitled to decree for declaration by concurring with the findings of learned trial Court, ought to have allowed them to amend the plaint by adding a prayer for possession and would have ordered to affix appropriate court-fee and then to grant them relief even though they had not specifically asked for the same, instead of non-suiting them on the basis of technicalities. As such, it is observed that the claim of consequential relief in the form of possession would be read as part of the plaint.

7. For the foregoing reasons, while placing reliance on the judgments supra, the civil revision in hand is allowed, impugned judgment and decree dated 13.0 4.2011 passed by the learned appellate Court is set aside and suit of the petitioners for declaration, along with consequential relief, is decreed in their favour. However, they are directed to pay court-fee of Rs.15,000/-, on plaint and memorandum of civil revision, total Rs.30,000/- within 45 days of the announcement of order, failing which their suit will be deemed to be dismissed. No order as to the costs. MH/M-158/L Order accordingly.