2001 PLP 745 (CLC)

Reliance is placed on the cases of Muhammad Ramzan v. The Director, Military Land Cantonment, Rawalpindi and another 1986 CLC 245, Ghulam Rasool and others v. Karim Bakhsh and others 1990 CLC 1439, Zakirullah Khan v. Faizullah Khan and others PLD 1999 SC 971 and Abdul Hamid Ismail v. Messrs Abdul Rehman Abdul Ghani PLD 1959 Kar. 376 on the point of negligent conduct of the parties. Material irregularity, sufficient cause, gross negligence, conduct of party and validity of none appearance of Advocates as sufficient ground. In the case of Moosa Khan v. Abdul Haq the question raised before the Honourable Supreme Court was ‑of limitation for the purpose of filing of application wherein Court held that it is one of, the cardinal principles that so long as substantial justice can be done and there is no serious technical or legal impediment, the decision of controversies on merits stands at a much higher level than the disposal on the basis .of legal technicalities and technical bars. In the case of Syed Phul Shah v. Muhammad Hussain and 10 others, it has been observed by the Honourable Supreme Court as under:‑‑ "Even a winning party feels embarrassed and sometime guilty as well, if it has no case under the dictates of justice, but succeeds merely on account of technical failure of the other side. It is so because justice in such a situation does not even appear to have been done. This appearance of justice in Islam is not only for lawyers and intellectuals say in foreign lands, they include people of Pakistan in general‑‑the litigant parties being in the forefront. It is also a well‑known principle in Islamic justice, that one who succeeds in a litigation unjustly must nor retain the benefit. It has been equated with burning charcoal in one's pocket, which, burns and eats away the winner's belongings including the retaining pocket also. Thus, while trying our best to do justice in accordance with the law, the principles in our own jurisprudence governing just dispensation shall have to be kept in view. In other words while adhering to the principle, justice. in accordance with law, we will have to keep in mind that it is the birth right of every citizen in an Islamic State to seek and obtain justice. In this exercise of keeping balance between the undiluted justice and justice only in accordance with law, the general directional in Islam come to the aid when one exerts." . Learned counsel on the strength of above authorities argued that justice cannot be sacrificed as the altar of technicalities. He also stated that) the petitioner will not seek any adjournment as it is in the interest of justice e and fairplay that the matter be decided on merits rather than shuttling out the petitioners on technical grounds and that the case may be decided on facts yet to be proved in evidence. In the case of Zakirullah Khan v. Faizullah Khan 1999 SCMR 971 the Honourable Supreme Court has held as under:‑‑ "No exception can be taken to the above view of the High Court that in this case where the High Court was seized of the matter in the revision petition filed by the appellants, the High Court had the jurisdiction under section 115,,C.P.C. to pass such orders in the case as it thought fit to modify the judgment of the lower Court to correct any error of jurisdiction or where the lower Court, had in the exercise of its jurisdiction acted illegally or material irregularity. " The case of Dummar Coal Company v. Akbar. Khan 1986 CLC 2458, is a case of repeated absence of plaintiff on a number of dates of hearing which is not attracted to the facts of present case where the absence of a single date is also supported by medical certificate likewise in the case of Ghulam Rasool and others v. Karim Bukhsh and others. The powers of High Court have been pointed out by the learned counsel as specified under section 115, C.P.C. which are not disputed. In the case of Muhammad Sadique and 2 others v. Faqir Muhammad and another 1993 CLC 1158, the Lahore High Court observed as under:‑‑ "The justice has to be meted out to the litigants, irrespective of their failing to properly pursue their causes, and technicalities have to be avoided unless it is essential to comply with them on grounds of public policy. The procedure is provided by C.P.C. to help and not thwart the grant to the people their rights. Their Lordships of Supreme Court in Khurshid Ali's case PLD 1992 SC 822 have laid down‑‑ It is incorrect to think now under an Islamic Dispensation that the Courts are only to sit and watch as to who commits a mistake, and who does a mistake, from amongst the contesting litigants, and one who commits mistake in procedural matters should be deprived of the right claimed; even if he is entitled to it‑‑' The purpose of adjudication of a lis is to reach the truth and to see that right claimed, if found due is acknowledged and awarded to the suitor. A dishonest litigant, winning a lis, only on technical pleas, can neither live without pangs of conscience in this world not rest in peace in the life hereafter. In my view, it is his obligation, rather, to point out before the Court the weakness of his case rather than hide it, irrespective of the fact that opponent had failed to plead the same. Likewise, it is the bounden duty of the Courts to discourage dishonest litigation and in exercise of the powers conferred upon them by law to take suitable measures/steps in the cases so that the dishonest litigant is denied the relief." In the case of Khurshid Ali and 6 others v. Shah Nazar PLD 1992 SC 822, it was held as under:‑‑ "The error having been committed by the trial Court in this case in not summoning the original register and other material evidence for just decision of the case, there is no alternative but to allow this appeal and remand the case to the trial Court for fresh decision. The application made by the appellants for summoning the record including the register is allowed. The said material shall be requisitioned and produced in the Court as soon as possible. The parties shall be afforded a further opportunity to adduce additional evidence, if necessary. There shall be no order as to costs." In view of the above, it is maintained that the petitioners be afforded an opportunity for the decision of the case on merits after recording the evidence in the interest of justice as observed by the Honourable Supreme Court. Refusal to allow them to produce their evidence would not only amount to shutting out the evidence and denial of justice on technical grounds. Accordingly, this petition is allowed as prayed and the judgment and decree passed by teamed 1st Additional Sessions Judge, Shikarpur dismissed. Civil Appeal No.3 of 1995 vide his order, dated 8‑8‑1998, is hereby set aside but with no order as to costs. H.B.T./Q‑8/K Revision petition allowed.