2010 PLP 535 (CLC)

CH. NAEEM MASOOD, J.

The synoptical assumptions of the case given in chronological order are that appellant Mst. Sardar was married to one Ghulam Farid. Ghulam Farid died in the year 1974 as issueless. He left behind agricultural land measuring about 64 Kanals in Mauza Bakai, Tehsil Jatoi, District Muzaffargarh. The appellant was entitled to 1/4th share of the agricultural land left by her deceased husband Ghulam Farid. The respondents i.e. the collaterals of Ghulam Farid the deceased husband of Mst. Sardar got sanctioned Mutation No.1440 on 23-6-1978, showing themselves the exclusive heirs of deceased Ghulam Farid. Thus, Mst. Sardar appellant stood excluded from her inheritance of 1/4th share.

2. The appellant Mst. Sardar filed a civil suit in the Court of learned Civil Judge, Alipur. During the proceedings of the suit on 3-7-1982 the respondents admitted the claim of the appellant and Ahmad Bakhsh, defendant No.2 i.e. the predecessor-in-interest of respondents Nos.2 to 7 along with his Advocate made a statement that the appellant is entitled to get 16-Kanals of land from the property in dispute relating to Khata No.126 previously and of which the present Khata number is 127 and the suit of the appellant regarding the remaining land be dismissed.

3. On this Mst. Sardar also gave a statement admitting the statement of defendant No.2 and his counsel. The learned Civil Judge Alipur on 23-2-1983 came to the following conclusion:

"Record perused, arguments as advanced by the learned counsel for the parties heard, I have come to the conclusion that no Jamabandi was produced on record for the correct determination of the property in suit. The "Parcha Khalasa Fard Haqiat" available on record regarding the property of Ghulam Farid deceased does not depict that the deceased was the owner of or sharer in Khata No.126/127. The copy of the mutation bearing No.1440 regarding the suit land does not describe the property correctly. Keeping in view the aforementioned facts it is evident that the defendants have admitted the contention of the plaintiff to the extent of 16 Kanals for grant of decree. The Khata which was described in the compromise is not at all mentioned in the plaint. For the said reason mere admission by the defendant is not enough to grant relief to the plaintiff. The suit therefore deserves dismissal and is hereby dismissed. The parties are left to bear their own costs."

4. The appellant Mst. Sardar, according to her assertion in the subsequent suit filed on 29-7-1991 alleged that she remained in oblivion throughout this period. The suit for specific performance filed on 29-7-1991 is based upon the statement of compromise made by the respondent. In the subsequent suit the appellant has mentioned the land in question is situated in Khata No.74. The second suit was dismissed in default on 18-7-1995. For its restoration an application was filed on 22-10-1995. The restoration application was dismissed on 15-5-1996. The appellant filed an appeal against the order dated 18-10-1995 and 15-5-1995 before the learned Additional District Judge, Alipur on 12-6-1996. The appeal was dismissed in default on 21-10-1996. Against the order dated, 21-10-1996 dismissing the appeal in default the appellant filed an application for restoration of the appeal on 22-10-1996, which was dismissed on 24-10-1996 in limine.

5. The orders dated, 21-10-1996 and 24-10-1996 passed by the learned Additional District Judge, Alipur, District Muzaffargarh have been assailed by way of the present FAO.

6. The facts narrated above show that the appellant Mst. Sardar stands deprived of her rightful inheritance of 16-Kanals of agricultural land out of the property left by her husband who died in 1974. Her deprivation in this respect spreads over 3-1/2 decades. She must be by now a very old lady. She has struggled throughout this period for her petty legitimate right, which she has not been able to get on account of one or the other hyper-technicality.

7. I cannot remain in oblivion of the fact of the commandments of the honourable apex Court that the procedural technicality could not hamper the administration of justice to a person. I am fortified in my view by the following authorities:

(i) Rauf B. Kadri v. State Bank of Pakistan and another PLD 2002 SC 1111 held "Procedures are meant only to regulate and foster the cause of justice and not to thwart the same." (ii) Muhammad Anwar Khan and 5 others v. Riaz Ahmad PLD 2002 SC 491 held "Rules and regulations are only meant to streamline the procedure and administer the course of justice, but not to thwart the same." (iii) Mst. Arshan Bi through Mst. Fatima Bi and others v. Maula Bakhsh through Mst. Ghulam Safoor and others 2003 SCMR 318 held "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." (iv) Nasir Hamad v. Abbasi Begum 2003 SCMR 1553 held: "Technicalities cannot be resorted to the extent of defeating the process of justice." (v) Mst. Bundi Begum v. Munshi Khan and others PLD 2004 SC 154 held: "technicalities unless insurmountable, should not come into the way of administration of justice."

8. The judgment and decree passed by the learned Civil Judge on 23-2-1983 was based upon technicality i.e. mere non-clarity of Khata number, whereas in substance the suit has been compromised to the extent of 16-Kanals i.e. 1/4th share of inheritance of Mst., Sardar from the property left by her deceased husband. This matter could very easily be resolved by the learned Civil Judge by summoning a concerned Revenue Officer as a Court witness with full record of the case relating to the property left by deceased Ghulam Farid, the deceased husband of the appellant, under Order XVI, Rule 14 C.P.C. Such-like provisions are meant to obviate the confusion like the present one. This having not been done, the poor lady stood deprived of her right of 16-Kanals of agricultural land for the last 35 years.

9. In exercise of the powers vesting in this Court under sections 115 and 203(sic), C.P.C., I take up the judgment and decree dated 23-2-1983 and set aside the same on the ground that the learned Civil Judge has not exercised the, jurisdiction properly and justly in disposing' of the matter. In this view of the matter, the subsequent proceedings rising out of the subsequent suit become infructuous.

10. In sequel thereof the judgment and decree dated, 23-2-1983 is set aside; the case is remanded to the learned Civil Judge Alipur, for deciding the only issue of Khata number of the land of the deceased Ghulam Farid. The other matter regarding 1/4th share of the appellant having been compromised is final and closed. The learned Civil Judge is directed to call for the Executive District Officer (Revenue), Muzaffargarh as a Court witness to explain from the revenue record the Khata, Khewat and Khasra numbers etc, of the land left by deceased Ghulam Farid.

11. As it is a decree and compromise, it shall not be appealable therefore, the learned Civil Judge is directed to complete the exercise within two months, and shall direct the EDO (Revenue) Muzaffargarh to get the decree implemented within a further .period of one month including the choice of land by appellant. The intrinsic value of the mesne profit for 35 years shall also be calculated by the EDO (Revenue) Muzaffargarh and be paid to the lady within the period specified above.

12. The case is disposed of in the above terms.

13. The learned Civil Judge as also the Executive District Officer (Revenue) Muzaffargarh shall submit compliance report of this order to the honourable Chief Justice of the Lahore High Court through the Additional Registrar (Judicial) at Principal Seat of this Court. M.U.Y./S-200/L Case remanded.