' NISAR HUSSAIN KHAN, J.---This petition under section 115, C.P.C. Has been filed for revision of the judgment and decree dated 5-3-2011 passed in Appeal No,105/13 of 2010 vide which the judgment and decree dated 25-10-2010 in Civil Suit No,168/1 of learned Civil Judge/Illaqa Qazi-XVII Swat has been upheld whereby plaint of the petitioners was rejected.
2. Brief facts forming the background of the instant petition are that Mst. Tamara Saliha daughter of Haji Shahi Lal filed suit against the respondents whereby she claimed her share of inheritance in the legacy of her father. She claimed in her plaint that Shahi Lal was survived by plaintiff along with Mst: Soocha and Noor Jehan three daughters and Bakht Munir one son, who is the predecessor of defendants Nos.1 to 9 as he died in 1986. She averred that suit property is the legacy of Shahi Lal, the father of petitioners/plaintiff hence she is entitled to 1/5th share out of the legacy of her father.
The record reveals that during the pendency of this suit an objection was raised by the defendants that another suit with regard to the same property had been decided by the learned District Judge on oath whereby suit of Mst. Noor Jehan the sister of petitioner was dismissed. It was further contended that revision petition filed by Mst. Noor Jehan was also dismissed by this Court vide order dated 22-6-2001. So the learned Civil Judge rejected the plaint on the ground that an earlier suit with regard to the same property has been dismissed on oath offered by Mst. Noor Jehan and accepted by the respondents so this suit is not maintainable. However, it was advised that the petitioners may better file application under section 12(2), C.P.C. This order of the learned Civil Judge was challenged by the petitioners through .Appeal and learned at court also concurred with the e learned Civil Judge and ismissed the appeal, hence the petitioners have come up with this petition before this Court.
3. Learned counsel for the parties have been heard at length and record has been perused with their valuable assistance.
4. The perusal of record reveals that impugned judgments are based on an offer of oath made by one Mst. Noor Jehan during the pendency of appeal before the learned District Judge and accepted by the respondent and consequential dismissal of suit. It would be advantageous to elaborate that Mst. Noor Jehan is the sister of petitioner who filed suit in the year 1997 in which petitioner was not impleaded as patty, either as plaintiff or as defendants. Along with plaint she filed application for grant of temporary injunction which was allowed by the learned Civil Judge.
Against that order of temporary injunction, Rafiullah Khan etc. Defendant of the said suit .Filed appeal before the learned District Judge/Zilla Qazi, Swat. It appears from the record that during the pendency of that appeal Mst. Noor Jehan filed an application through attorney by making an offer to the appellants of that case to take oath on the Holy Quran and deny the right of Mst. Noor Jehan and she would relinquish her claim. There is a statement of one Javed Iqbal attorney of Mst. Noor Jehan recorded on the back of application which reads that the attorney of the defendants should take oath to the effect that suit property is the purchased property of their father and plaintiff i,e, Mst. Noor Jehan received her share from the legacy of Shahi Lal then the plaintiff would withdraw the suit. In pursuance of this statement, an order was passed by the learned District Judge that as the attorney of the plaintiff is satisfied with the oath of the attorney of the defendants so not only the appeal but the suit of the plaintiff was also dismissed. This order of the learned District Judge was challenged by Mst. Noor Jehan before the High Court in revision petition and that too was dismissed by this Court.
5. The question to be resolved now in the instant petition is that; whether an order passed on the basis of offer of oath would determine the right of all the interested parties in the legacy of Shahi Lal who were not party to those proceedings and they would be precluded to claim their right independently? And whether that order of learned District Judge would operate as res judicata against the petitioners? And whether the suit of the petitioners cannot proceed without annulment of the order of the learned District Judge based on oath of respondents, wherein, the petitioner was not the party? To resolve this proposition firstly we will have to consider Article-163 of the Qanun-e- Shahadat under which this offer was made by attorney of Mst: Noor Jehan and accepted by attorney of Rafiullah etc. The Article is reproduced as under:--
163. Acceptance or denial of claim on oath.---(1) When the plaintiff takes oath in support of his claim the Court shall, on the application of the plaintiff call upon the defendant to deny the claim on oath.
(2) The Court may pass such orders as to costs and other matters as it may deem fit.
(3) Nothing in this Article applies to laws relating to the enforcement of Hudood or other criminal cases.
6. The bare reading of this Article signifies that it has not been provided that what would be the consequences of offer and acceptance of oath nor the mode of taking oath provided therein. But this issue has already been resolved by this Court in C.R.No,428 of 1998 dated 6-10-2000. So it would only be discussed that whether any order/judgment passed as a consequence of this oath would effect and bind the party who was neither party to the suit nor to the oath proceedings? To trace out the answer to this question, we will have to revert to provisions of C.P.C. Because Article- 163 is silent about the consequences of oath or consequential order passed thereon. The proceedings conducted before the District Judge by the parties for oath seems to be the result of some compromise and adjustment as well as to put an issue for determination of their right through an agreement for disposal of suit on the basis of oath. This situation can only be covered by Order XXIII Rule 3 and Order XIV Rules 6 and 7, C.P.C. Which are to some extent analogous to each other. It seems that the order of learned District Judge was based on the basis of compromise or agreement between the parties which resulted into consent decree in favour of Rafiullah etc. It is settled law that consent decree or decree based on compromise has no better status in law than agreement between the parties albeit it bears seal of the court. On this legal proposition, I am fortified by judgment 2005 YLR 74, 1989 CLC 1789 titled Ghulam Akbar Khan v. Haji Sher Jan and others and PLD 1987 Peshawar 132 titled Turab Shah v. Warad Shah. So in light of this settled law this decree based on offer of oath is not binding on the petitioner nor it effects the interest of the, petitioners.
7. It is also general principle of law as well, that if a person is not party to any legal proceedings he would not be bound by any order or decree of the court passed in those proceedings. Taking it from another angle, the order passed by the learned District Judge on the basis of oath is not supported by any reason nor recorded after due process of law for determination of right of the parties. So this order of the District Judge cannot bind the petitioners nor can deprive her from her legal right. Likewise it has nowhere been declared by the learned District Judge that the suit property is not a legacy of Shahi Lal and rightly so because he could not do so without recording evidence. In this view of the matter, order/judgment of District Judge based on agreement of oath cannot E operate as res judicata nor effect the interest of the petitioner.
8. Besides that the procedural laws are always meant to advance the cause of justice and not to thwart it. The findings of both the courts below transpire that they have not denied the right of petitioner but have declined the remedy through procedural technicalities. It is by now settled law that when procedural technicalities create hurdle in dispensation of substantial justice then the former shall have to make way to impart justice to the aggrieved party. The rules of procedure are not made for purpose of hindrance in providing justice nor can cause of justice be made hostage to the procedural technicalities. Rather the procedural laws are enacted for the advancement of cause of justice: I am fortified by the judgment of Hon'ble Supreme Court in case titled Mst. Arshan Bibi v. Maula Bakhsh (2003 SCM R 318) and Ch. Akbar Ali v. Secretary, Ministry of Defence, Rawalpindi and another (1991 SCM R 2114), wherein it was held as under: "In the exercise to do justice in -accordance with law the Courts and forums of law cannot sit as mere spectators as if at a high pedestal, only to watch who out of two quarrelling parties wins. See the judgment of this Court in the case of Muhammad Azam v. Muhammad Iqbal and others (PLD 1984 SC 95 at page 132) and Civil Appeal No,789 of 1990, decided on 26-6-1991 (Syed Phul Shah v.
Muhammad Hussain PLD 1991 SC 1051). On the other hand deep understanding and keen observance of proceedings is a sine qua non for doing justice in the Constitutional set up of Pakistan. Those Rules of adversary system based merely on technicalities not reaching the depth of the matter, are now a luxury of the past. Neither of the parties can be permitted to trap an improperly defended or an undefended or an unsuspecting adversary by means of technicalities when the demand of justice is clearly seen even through a perfect trap. It will make no difference if the litigant parties are citizens high or low and/or' is Government or a State institution or functionary acting as such."
' Moreover, in case titled Imtiaz Ahmad v. Ghulam Ali (PLD 1963 SC 382), it was observed by His Lordship Hon'ble Justice Kaikaus that:- "I must confess that having dealt with technicalities for more than forty years, out of which thirty years are at the Bar, I do not feel much impressed with them. I think the proper place of pro( edure in any system of adminiwation 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 ground 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 defect. 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."
9. Besides that it is a case of inheritance governed by Shariah Law. While right of succession can neither be defeated by law of limitation nor on the basis of principle of res judicata because Shariah is the Supreme law which would prevail over all the procedural laws.
10. For the reasons discussed above, the petitioners cannot be made victim of procedural technicalities and be forced to be a shuttle-cock between one court and the other for redressal of their grievance. So I hereby accept the instant Revision Petition, set aside the impugned judgments of both the courts below and case is remanded to the learned Civil Judge/ Illaqa Qazi to decide it in accordance with law.