1986 PLP 1225 (CLC)

‑‑‑S. 115‑‑Revisional jurisdiction, exercise of‑‑Minority of plaintiff at time of filing suit, having been conceded by defendants' plea of exemption from limitation could be claimed by such minors‑‑High Court, in view of objection being of technical nature, refused to intervene in revisional jurisdiction to upset findings of Courts below. Taki Ahmad Khan for Petitioners. This civil revision has arisen out of a suit brought by the respondents, Nazir Ahmad and others against the petitioners, Ahmad Din and others. The suit related to the inheritance of one Mehar Din and his widow, Mst. Hussain Bibi.

2. The suit was decreed by a Civil Judge. The petitioners filed appeal before an Additional District Judge but in vain. Hence, this civil revision.

3. The only finding of the learned lower Courts which was challenged by learned counsel for the petitioners was on the issue of limitation. It was in view of minority of the respondents that it was held by the learned lower Courts that the suit was in time. It was contended by learned counsel for the petitioners that since in their plaint exemption from law of limitation, on the ground of minority was not claimed by the respondents, the same could not be allowed to them. He cited Order VII, rule 6 of the Code of Civil Procedure to support his argument. It was, however, conceded by the learned counsel that the respondents were minors at the time when mutations of inheritance were attested.

4. Order VII, rule 6 of the Code of Civil Procedure says that "where the suit is instituted after the expiration of the period prescribed by the law of limitation, the plaint shall show the ground upon which exemption from such law is claimed". I have gone through the plaint of the suit filed by the respondents. Although in paragraph 8 of the plaint, dealing with accrual of the cause of action, it was not stated by the respondents that they were minors at the time when the mutations in question were sanctioned yet in paragraph 4 of the plaint it was clearly stated by them that they were minors at the time of the demise of their parents and could not become aware of the misdeeds of the petitioners. It was perhaps through inadvertence that minority was not mentioned in the paragraph dealing with limitation. ‑Issue of limitation was framed by the learned trial Court and the parties led evidence on that issue. The respondents had produced evidence in regard to their minority. This was sufficient notice to the petitioners that the respondents wanted to take the advantage of minority on the question of limitation. No objection was raised by the petitioners in regard to the production of above evidence by the respondents. Judgments of the learned lower Courts would show that at the time of arguments the petitioners did not object before the said Courts that since exemption on the basis of minority was not claimed in the plaint the minority of the respondents was of no avail to them. Even in the grounds of appeal filed before the learned appellate Court no such plea was taken. The plea raised before me is, therefore, an afterthought. It is an objection of technical nature. I feel that justice should not be sacrificed at the alter of technicality. No prejudice appears to have been caused to the petitioners due to the respondents' failure to specifically mention in the plaint that they were minors at the time of filing the suit and thus their suit was within time. In the circumstances of this case, therefore, it will not be fair to deprive the respondents of their valuable rights for not strictly following the procedure laid down in Order VII, rule 6 of the Code of Civil Procedure. In taking this view, I am fortified by Imtiaz Ahmed v. Ghulam Ali etc. P L D 1965 S C 382 in which the Supreme Court was pleased to observe as follows:‑

"

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 grounds of public policy. The English system of administration of justice on which our own is based may be to a certain extent technical but we are not to take from that system its defects. Any system which by giving 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."

5. For the foregoing reasons, I hold that the respondents could press into service their minority for getting over the difficulty of limitation. It was conceded by learned counsel for the petitioners that if the respondents were allowed to take advantage of their minority, their suit would be within time. Resultantly, I hold that their suit was within time.

6. No other point was canvassed by the learned counsel.

7. This revision, therefore, fails. It is dismissed in limine A . A Revision dismissed