2010 PLP 1598 (CLC)

CH. MUHAMMAD TARIQ, J.

This writ petition has been directed against the judgment dated 17-11-2009 passed by the learned Additional District Judge Gujranwala who accepted the civil revision filed by the respondent No. 1 and set aside the order dated 28-9-2005 passed by the learned Civil Judge Gujranwala.

2. Brief facts of the case are that respondent No.1-plaintiff filed a suit for possession through pre-emption against the petitioner-defendant. The suit was contested by filing written statement by respondent No.1-defendant and out of divergent pleadings of the parties, following issues were frames. ISSUES (i) Whether plaintiff has preferential rights of the pre-emption? OPP. (ii) Whether plaintiff has performed necessary Talbs? OPP. (iii) Whether plaintiff has no cause of action? OPD. (iv) Whether the suit is bad for misjoinder of the parties? (v) Whether the sale consideration mentioned in the plaint is not correct, if so, what is true sale consideration? OPD. (vi) Whether the defendant had alienated the suit-land by way of gift through Mutation No.2472 dated 23-12-2000 and he is no more the owner of the suit-land, if so, its effect on the present suit? OPD. (vii) Relief.

3. The parties adduced their oral as well as documentary evidence. During the course of recording of evidence, it transpired that the written statement filed by the petitioner-defendant has not been signed. The petitioner filed an application before the learned trial Court that due to inadvertence, the plaint and the verification clause could not be signed which is neither intentional nor deliberate and is mere an irregularity, therefore, the application be accepted and the petitioner be allowed to sign his written statement. This application was resisted by respondent No.1-plaintiff but the learned trial Court vide order dated 28-9-2005 allowed the petitioner to sign his written statement as well as the verification clause.

4. Respondent No.1-plaintiff challenged this order before the learned Additional District Judge Gujranwala who vide his judgment dated 17-11-2009 allowed the civil revision and set aside the order of learned Civil Judge whereby the petitioner-defendant was allowed to put his signature on the written statement as well the verification clause. Hence this wit petition.

5. Learned counsel for the petitioner contends that the impugned judgment is against the law as non-signing of pleadings is mere an irregularity curable at any stage of the proceedings, but the learned appellate court has mis-interpreted the law and has erred while allowing the civil revision.

6. On the other hand, learned counsel for respondent No.1 has vehemently opposed this writ petition and has supported the impugned judgment. Learned counsel for respondent No.1 has contended that during the proceedings, the case was adjourned for a number of times but the petitioner had never asked the learned trial court to sign the written statement and the verification clause. He further contends that non-signing of written statement is deliberate and at this stage of the case the petitioner cannot be allowed to sign the written statement and the verification clause.

7. Arguments heard. Record perused.

8. The record reveals that this issue was never agitated earlier, so the defendant cannot derive any benefit for non-signing of his written statement. The record further reveals that the question of non-signing of written statement was arisen during the documentary evidence when this point was raised by the plaintiff whereupon the petitioner forthwith applied to the learned trial court for permission to sign his written statement as well as the verification clause.

9. Non-signing of written statement is mere an irregularity. Defect in procedure or a technical error can be rectified at any stage of the proceedings. It is an established principle of law that non-signing of pleadings is mere a technical irregularity relating to the matter of procedure which could not become a basis for rejection of the plaint. Both the learned counsel for the parties have produced plethora of law on the point but keeping in view the judgments of the honourable Supreme Court of Pakistan that the technicalities shall not come in the way of Justice which shall be ignored and the matter shall be decided on merits.

10. In the light of above findings of the honourable Supreme Court of Pakistan, this writ petition is allowed, the impugned judgment dated 17-11-2009 passed by the learned Additional District Judge Gujranwala is set aside and the order dated 28-9-2005 passed by Mr. Muhammad Irfan Safdar, learned Civil Judge Gujranwala is restored. A.R.K./Z-35/L Petition allowed.