' RANA BHAGWANDAS, J.---These appeals with the leave of this Court are directed against consolidated judgment of the Lahore High Court dated 24-11-1997 passed in Civil Revisions Nos. 856 & 857 of 1991 arising out of two suits filed by the parties in relation to a piece of land measuring 17 Marlas one for relief of possession by dismantling the construction raised thereon and another for declaration of title and permanent injunction respectively.
2. Appellant-Javaid Iqbal filed a suit for possession against respondent-Abdul Aziz and his brother Liaqat Ali on the averments that they had illegally encroached upon the suit land and constructed houses thereon. It was averred that respondent No,1 had encroached upon 11 Marlas of land whereas respondent No,2 i,e, Liaqat Ali had unlawfully occupied a piece of land measuring 3 Kanals and raised construction thereon about one year before the institution of the suit. As per the copy of the plaint the suit appears to have been filed before the Court of Senior Civil Judge, Gujranwala on 19-5-1980.
3. Suit was resisted by both the respondents through a joint written statement. Stance of the respondents before the trial Court was that the appellant being owner of Khasra Nos.9307/5761/2397 started selling separate plots of land through his authorized agent Muhammad Siddique, who used to transact the sale of plots while the appellant, after recovery of consideration, would hand over possession of the respective plots. In the same manner, respondents purchased a piece of land measuring 17 Marlas at the rate of Rs, 1,000 per Marla from the appellant, who, upon receipt of part consideration of Rs, 11,700 from them handed over vacant possession of the land to them with the understanding that balance amount would be payable at the time of execution of conveyance deed. Accordingly respondents started construction on the site. Meanwhile on 7-12-1977, appellant received balance consideration and executed separate acknowledgement receipts therefor with the understanding that, on completion of sale of entire land in the shape of small plots, he would inform the respondents and execute a registered deed of transfer. Since by passage of time, price of land inflated, the appellant, with ulterior motive, kept on postponing the act of execution of registered sale-deed. When the respondents approached the appellant through notables of the locality, he dishonestly demanded consideration at the rate of Rs, 5,000 per Marla. As the respondents declined to pay additional consideration at the aforesaid rate, appellant got provoked and filed a false and frivolous suit. Respondents appended photocopies of the acknowledgement receipts dated 25-3-1977 and 7-12-1977, in support of their claim regarding payment of consideration, to the written statement.
4. Since respondents' right, interest and title in the suit land was invaded and threatened by the appellant, both the respondents filed an independent suit for declaration and permanent injunction with regard to the suit-land. Respondents averred that, though they were residing in the houses constructed by them on the land purchased from the appellant, entries in the record of right remained in the latter's name, who intended to sell the said land to someone else without any lawful authority. They approached the appellant to accept their title and ownership with possession of the houses constructed thereon but the latter refused to accede to their request and backed out from his solemn commitment,hence the suit. Appellant contested the suit on the premise that the respondents were illegal encroachers on the land, without expressly denying the factum of sale of land in their favour, receipt of consideration and passing of physical and vacant possession in their favour.
5. Both the suits were consolidated by the trial Court, in which, inter alia, issues were settled; firstly, whether the plaintiffs have no locus standi to file the suit; whether the plaintiffs are owners in possession of the suit property and whether the entries in Revenue Record in favour of defendant are illegal and inoperative on the right of plaintiffs. Both the parties adduced evidence. Receipts Exh.P.1 and P.2 were also tendered in evidence by the respondents. Learned Civil Judge, Gujranwala, however, on misconstruction of the evidence on record dismissed the suit filed by the respondents on the premise that the transaction of sale being compulsorily registerable under section 17 of the Registration Act in the absence of any registered deed in favour of the respondents, right of ownership did not devolve upon them. Consequently he held that the respondents had no locus standi to file the suit and they were in illegal possession of the suit-land. In the connected suit filed by appellant-Javaid Iqbal, basing his conclusion on the entries in the Jamabandi in favour of the appellant and in view of dismissal of cross suit of the respondents, he decreed the suit for possession against them.
6. Two separate appeals against the judgments and decrees of the trial Court, preferred by the respondents, were heard by an Additional District Judge, Gujranwala, who dismissed the same by identical judgment on the premise that an agreement to sell does not create any right, title or interest in immovable property. Appellate Court held that there could not be any doubt that without a right, title or interest created in immovable property a suit for declaration could not be maintained on the basis of the averments in the plaint. Referring to the provisions of section 42 of the Specific Relief Act, 1877, appellate forum observed that only proper mode of redress for the respondents, in the circumstances, would be a suit for specific performance of the agreement.
Consequently, both the appeals were dismissed on untenable and extraneous consideration.
7. Confronted with the above situation, respondents were obliged to invoke the revisional jurisdiction of the Lahore High Court through two separate revision applications, which were allowed by a learned Judge, who, upon deeper examination of the record and taking into consideration the principles for administration of justice and the law on the subject, set aside the judgments of the two Courts below and remanded the suits to the trial Court with the direction that trial Court shall treat the suit of the respondents for specific performance and allow necessary amendments as well as time for making up of deficiency of Court-fee. After amendment of pleadings, both the suits were ordered to be decided afresh on their own merits in accordance with law, after allowing the parties an opportunity to produced further evidence. Directions for final decision of the suits within two months and consequent appeals, if any, within a further period of two months were also issued vide judgment dated 24-11-199'7 impugned in the aforesaid appeals.
Accordingly, leave to appeal was granted by this Court to consider the questions, inter alia, as to whether a suit for declaration seeking ownership was competent on the basis of an agreement to sell, whether form of a suit was a technical and could the same be converted into a suit for specific performance of the contract? Leave to appeal was also granted to consider whether in the absence of any prayer by respondents to convert the suit for declaration into one for specific performance without seeking any amendment for 12 years, could the High Court order such conversion.
8. At the hearing of the appeals, Malik Muhammad Qayyum, learned Advocate Supreme Court for the appellant vehemently contended that a contract for sale of immovable property did not confer any right, title or interest in favour of the respondents and as such the suit for declaration and permanent injunction was inherently not maintainable and misconceived. He seriously assailed the view taken by the High Court and submitted that in the absence of written prayer for conversion of the relief in the suit on the part of the respondents, relief granted by the High Court could not have been legally granted. He relied upon judgments reported in Karimdad v. Arif Ali (PLD 1978 Lahore 679), L.T. Muddu Krishana v. Lalitha Ramchandra Rao (AIR 1997 SC 772) Ahan Saz Conractors v. Pak.
Chromical Limited (1999 MLD 1781) and Keramat Ali v. Muhammad Yunus (PLD 1963 SC 191).
9. Conversely, Mr. Muhammad Munir Peracha, learned Advocate Supreme Court for the respondents with all emphasis at his command, defended the High Court judgment and contended that in the exercise of its jurisdiction, High Court was entitled to would the relief in view of the averments made in the plaint, evidence adduced by the parties and sufficient proof of the transaction of the sale followed by payment of total consideration and delivery of vacant possession of the suit-land in favour of the respondents coupled with raising of permanent construction i,e, residential house in which the respondents have been residing as full-fledged owners for the last more than two decades. Learned counsel urged that the view taken by the trial Court and the Appellate Court was too narrow and hyper-technical in nature causing gross injustice to the respondents, who were non-suited for extremely procedural and technical reasons, which should always be avoided and a mechanism evolved to do complete justice to the parties in the facts of the case. Learned counsel referred to Ahmed Din v. Muhammad Shafi (PLD 1971 SC 762) and Shabir Ahmed v. Khushi Muhammad (1993 CLC 2316) in order to demonstrate that the amendment of pleadings can be allowed at any stage, if deemed essential in the interest of justice and for effective and proper adjudication of the controversy between the parties.
10. The Code of Civil Procedure 1908 (hereinafter referred as the Code) was enacted to regulate the proceedings before the civil Courts. Provisions contained in the Code are mainly rules of procedure.
It is well-settled that all procedural laws are subservient to the cause of justice and, therefore, such laws neither limit nor control the power of the Court to pass an order or decree, which is necessary to do complete justice in the facts and circumstances of the case. Construction of procedural law in a manner, which tends to obstruct the course of justice, must be avoided as far as possible. The authors of the Code were fully conscious of the underlying object of procedural law and, in all probability in order to remove and dispel all doubts in this regard, categorically provided in section 151 of the Code that "nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of process of the Court.".
11. Section 107 of the Code enumerates the powers of appellate Court as under:-- "107. Powers of Appellate Court.--(1) Subject to such conditions and limitations as may be prescribed, an Appellate Court shall have power--
(a) to determine a case finally;
(b) to remand a case;
(c) to frame issues and refer them for trial;
(d) to take additional evidence or to require such evidence to be taken.
(2) Subject as aforesaid, the Appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Code on Courts of original jurisdiction in respect of suits instituted therein.'
' It may be pertinent to observe that aforesaid provision of law is not to be read in isolation for other provisions of the Code. The provisions contained in Order XLI, rule 33 of the Code reaffirm that the Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order, as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties although such respondents or parties may not have filed any appeal or objection. The provisions contained in Order VI, Rule 17 of the Code are of widest amplitude stipulating that the "Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties". Again provisions of Order VII of the Code dealing with the institution of a plaint and the manner and mechanism of institution of a suit through a plaint contain elaborate and exhaustive enabling provisions. Order VII, Rule 7 of the Code reads as under:- "Order VII-Plaint.
1.
2.
3.
4.
5.
6.
7. Relief to be specifically stated. Every plaint shall state specifically the relief which the plaintiff claims either simply or in the alternative, and it shall not be necessary to ask for general or other relief which may always be given as the Court may think just to the same extent as if it had been asked for. And the same rule shall apply to any relief claimed by the defendant in his written statement."
12. In the facts of the case in hand it would appear that the respondents had all along pleaded that they had purchased the suit land from the appellant for a definite consideration, which was duly paid and acknowledged through receipts Exhs.P-1 and P.2 coupled with delivery of vacant possession entitling them to utilize the property in the manner best suited to them. It was on this account that the respondents raised structure of permanent nature and started residing with their kith and kin when after the passage of more than three years appellant brought a suit for their dispossession and demolition of the structure on the premise that they had unlawfully encroached upon his land. It may not be out of context to observe that in the written statement filed by the appellant in the suit filed by respondents he simply denied the contents and averments made in various paragraphs of the plaint without expressly and specifically denying the factum of sale of property in their favour. The appellant did not plead that he had not entered into any agreement of sale; that he did not receive consideration of Rs, 17,000; that he did not execute the acknowledgment receipts in token of the receipt of consideration for the sale and that he did not voluntarily part with the possession of the suit land in favour of the respondents. Obviously respondents being illiterate and rustic villagers were ill-advised to pray for the relief of declaration and consequential relief of permanent injunction by some petition writer or a Mofassil lawyer who drafted the plaint in the suit with defective form. There can be no cavil with this proposition that mere agreement of sale would not confer any right, title or interest to immovable property on the respondents. Both the Courts, however, miserably failed to realize that the relief asked for by the plaintiffs could justifiably be moulded by converting the suit for declaration into a suit for specific performance. Both the Courts, instead proceeded to knock down the respondents on hyper- technical ground that they had not prayed for specific performance of the contract and that simply because the record of rights was entered in the name of appellant, respondents having failed to prove their ownership were in illegal occupation of the land. In the face of averments in the plaint to the effect that the appellant, having turned out to be dishonest in his intention and with an ulterior motive was intending to transfer the land to a third party and that he was approached to accept the ownership rights of the respondents, they were obliged to knock the door of the Court, it was incumbent upon the Courts to apply their judicial mind to ensure substantial justice. In law, it was imperative and just to do complete justice to record definite findings of fact whether there was a contract of sale between the parties; whether the contents of Exhs.Pl & P-2 were substantiated through adequate evidence; whether possession of the suit land was handed over to the respondents in part performance of the contract and whether they were lawfully residing in the houses on the suit land or they had wrongfully trespassed over the land as claimed by the appellant.
13. On its part, in the exercise of its revisional jurisdiction, Lahore High Court was perfectly justified in observing that the suit could not fail merely for the reason that some relief which was available and not been claimed. Honourable Judge of the High Court is perfectly justified in observing that the suit could not have been dismissed on account of any defect in form. In view of the assertion of the respondents that they had passed on total sale consideration and obtained possession in part performance of sale, they would be entitled to full protection of their possession within the contemplation of section 53-A of the Transfer of Property Act, 1882. In our considered opinion, both the Courts below failed to take into account the legal impact and effect of the provisions contained in section 53-A of the Transfer of Property Act and the provisions of Code of Civil Procedure, 1908 providing sufficient mechanism for doing complete justice to the parties. Evidently and essentially, this was a fit case for exercise of jurisdiction under Order VI, rule 17, Order VII, rule 7 and section 151, C.P.C., rather than attaching much importance to the defective drafting of the plaint and the prayer clause. The view taken by the High Court in exercise of its revisional jurisdiction, in our considered opinion, does not suffer from any inherent legal infirmity misreading of record, misconception of law or error of jurisdiction. To the contrary the judgment of the High Court in the peculiar facts and circumstances of the case, on the face of the record, appears to be just, fair, equitable and expedient to achieve the ends of justice and to defeat the mischief. The order of remand is, therefore, fully justified and not open to any exception.
14. In Karimdad v. Arif Ali (supra), it was held that the trial Court suo motu ordered, directing amendment of plaint without there being any application, written or oral, and without hearing other side on the issue, was without jurisdiction. There can be no cavil with this proposition but the principle cannot be stretched to operate as bar on the exercise of power by the High Court in appeal or revision when otherwise the High Court finds it essential for determination of the real question in controversy. High Court being a Court of record with powers of supervision and correction of the orders passed by the inferior Courts cannot be said to tie helpless in appropriate cases to pass such order in order to do substantial justice and to advance the cause of justice.
Ahan Saz Contractors (supra) is not decided in accord with the law laid down by this Court. In Keramat Ali v. Muhammad Yunus (supra), this Court observed that the Judicial Committee of the Privy Council consistently maintained that it had undoubtedly full powers to allow such amendments even where a legal right had accrued by lapse of time if the special circumstances of the case outweighed such consideration. That this Court possess similar powers to do complete justice cannot be disputed. Nevertheless Hamoodur Reitman, J (as his Lordship then was) recorded a rule of caution by observing that in exercising this power no doubt this Court would be reluctant to allow an amendment, which would have the effect of totally altering the nature of the suit or by taking away a valuable right accrued by lapse of time, but where in the circumstances of a particular case it would be plainly inequitable to refuse such a relief, this Court will not hesitate to do what the Judicial Committee did in the case of Muhammad Zahoor Ali Khan v. Mst. Thakooranee Rutta Koer (11 MIA 468). In the Indian Supreme Court case, amendment in a suit for mandatory injunction into a suit for specific performance of a contract after expiry of three years from the date fixed by the parties was disallowed for the reasons that the relief would be barred by limitation; that the cause of action, which was required to be stated initially in the plaint was not pleaded.
There would be a world of difference between a suit for mandatory injunction and a suit for the relief of specific performance of contract. Evidently, circumstances and ingredients of the plaint would be all together distinguishable, thus, the rule cannot possibly be extended to the case in hand.
15. Adverting to the case law on the subject, we may refer to Jankirama Iyer v. Nilakanata (AIR 1962 SC 633), lying laid down that construing the plaint, the Court must have regard to all the relevant allegations made in the plaint and must look at the substance of the matter and not its form.
Interpreting the provisions of Order VI, rule 2, C.P.C. And Order XLI, Rule 33, C.P.C., Supreme Court of India in Bhagwati v. Chandramaul (AIR 1966 SC 735) held that if a plea is not specifically made and yet it is covered by an issue by implication and the parties knew that the said plea was involved in the trial, then the mere fact that the plea was not expressly taken in the pleadings would not necessarily disentitle a party from relying upon it. It was emphasized that in considering the application of this doctrine to the facts of a particular case, Court must bear in mind the other principle that consideration of form cannot override the legitimate considerations of substance. In Ahmad Din v. Muhammad Shafi (PLD 1971 SC 762) it was held that in a suit for declaration where plaintiff was able to seek consequential relief by way of possession, which had not been claimed, Court in such case should allow amendment of plaint by adding prayer for possession and paying appropriate Court-fee and granting him relief even though he had not specifically asked for it. In Manager, Jammu & Kashmir, State Property v. Khuda Yar (PLD 1975 SC 678), rule of law laid down is to the effect that the scope of the revisional powers of the High Court, though circumscribed by conditions of excess of jurisdiction, failure to exercise jurisdiction, illegal exercise of jurisdiction, is nevertheless very vast and corresponds to a remedy of certiorari and in fact goes beyond that at least in two respects in as much as; firstly, its discretionary jurisdiction may be invoked by the Court suo motu, and secondly, the Court "may make such order in the case as it thinks fit". In Amina Begum v. Ghulam Dastgir (PLD 1978 SC 220), this Court laid down the principle of law that a discretion is vested in the Courts to be judicially exercised in proper cases to avoid multiplicity of proceedings, to shorten litigation and to do complete justice between the parties, and mould the relief according to the altered circumstances in the larger interest of justice. In Samar Gul v. Central Government (PLD 1986 SC 35), interpreting the provisions of Order VII, rule 7, C.P.C. Zafar Hussain Mirza, J. (as his Lordship then was), speaking for the Full Bench authoritatively held that it is well- settled that a Court is empowered to grant such relief as the justice of the case may demand. For purposes of determining the relief asked for, the whole of the plaint must be looked into so that the substance rather than the from should be examined. In Mir Mazar v. Azim (PLD 1993 SC 332) it was laid down that amendment of pleadings has to be allowed keeping in view the circumstances of the case and the stage of litigation and on such terms as may be just. In this case, in second appeal before the High Court, application was filed seeking amendment of plaint, notice whereof was served on the other party but no reply was filed thereto. High Court did not pass any order on the said application but dismissed the second appeal. It was ruled that ends of justice demanded that amendment should have been allowed, as such request could be treated at par with the case of declaration under section 42 of Specific Relief Act when consequential relief had not been sought. It was reaffirmed that rules of procedure are meant to advance justice and to preserve rights of litigants and they are not meant to entrap them into blind corner so as to frustrate the purpose of law and justice. A case in point almost on all fours from Lahore jurisdiction is reported as Shabbir Ahmed v. Khushi Muhammad (1993 CLC 2316) authored by an illustrious Judge of this Court Munir A. Sheikh, J (as his Lordship then was in the Lahore High Court). In this case Appellate Court had dismissed the suit on the ground that the same was not in proper form as the remedy of the plaintiff was to seek decree for specific performance, his Lordship authoritatively held that the suit could not have been dismissed on this technical ground and ruled that the relief of specific performance could be granted to the plaintiff if the evidence on record had established agreement of sale and performance of his part of agreement and the question of limitation was not involved. In Lachman Das v. Servanand (1995 SCMR 435) dealing with the powers of this Court, it was observed that rule 6 of Order XXXIII of the Supreme Court Rules, 1980 provides that "nothing in the rules would be deemed to limit or otherwise affect the inherent powers of the Court to make such order as may be necessary for the ends of justice or to prevent abuse of the process of the Court".. To the same effect are the powers vested in an Appellate Court under Order XLI, rule 33, C.P.C. As well as under section 151, C.P.C. In Province of Punjab v. Abdul Majeed (1997 SCMR 1692), principle of law was expounded as under:-- "The power conferred on the 'Appellate Court under Order XLI, rule 33, C.P.C. Is of the widest amplitude and in exercise of this power the Appellate Court is competent to grant relief to a party, notwithstanding the fact that such party failed to prefer an appeal or submit any cross-objection.
However, in equity, justice and good conscience and the fact that withholding of relief would result in a contradictory, unworkable or impossible order/decree. Therefore, when the Appellate Court reaches a conclusion in a case that by withholding the relief to a non-appealing respondent or to a respondent who omitted to file cross-objection grave hardship or injustice is likely to result to it or that the judgment or orders will be rendered contradictory, it will be a good ground for exercise of power under Order XLI, rule 33, C.P.C. To grant appropriate relief to a non-appealing respondent or to a respondent who omitted to file cross-objection in the appeal."
' Again in Barkat Ali v. Muhammad Ehsan (2000 SCMR 556), this Court reiterated that principle object behind all legal formalities is to safeguard the paramount interest of justice. Legal precepts were devised with a view to impart certainty, consistency and uniformity to administration of justice an to secure it against arbitratiness, errors of individual judgment and mala fides. In Kashi Parasad v. Banashidhar (AIR 2001 Maddhya Pradesh 185), in suit for declaration and possession by virtue of temporary partition, concurrent findings were recorded by Cout;s on basis of evidence that plaintiff has 1/7th joint share in the disputed property. This fact, however, was not specifically pleaded in relief clause of plaint. It was held that Appellate Court should not have refused the same on technical ground that it was not specifically sought for in the relief clause of plaint, particularly, in order to avoid further vexatious litigation between the parties. Division Bench of the High Court ruled that first Appellate Court should have exercised discretion in the interest of justice.
16. For the aforesaid facts, reasons and circumstances, we find no merit in the aforesaid appeals, which are accordingly dismissed with no order as to costs.