' NISAR HUSSAIN KHAN, J.--- Petitioner Mst. Bakht Rana has called in question the judgment and decree of learned District Judge/Zila Qazi Swat whereby Appeal No,115/13 of 2010 was dismissed and judgment of learned Civil Judge/Illaqa Qazi XVIII Swat dated 6-11-2010 in Civil Suit No,101/1 was upheld whereby petitioner's application under section 12(2), C.P.C. Was returned for presentation at proper forum.
2. Brief facts of the instant petition are that petitioner filed suit in 2008 for declaration against Muhammad Zubair and others, wherein she claimed her share of inheritance in the legacy of Abdur Rahim, her father, because the whole property of Abdur Rahim was transferred in the name of Muhammad Zubair the son of Abdur Rahim by depriving all the four, daughters namely Mst.
Bakht Rana, Mst. Hassan Zeba, Mst. Bakhtzeba and Mst. Bakht Nazira. The record reveals that prior to the instant suit Mst. Bakht Nazira the sister of petitioner filed same nature suit in the year 2001 which was decreed in her favour by learned Civil Judge/Illaqa Qazi, Swat on 10-4-2001, while appeal thereagainst was also dismissed by learned Additional District Judge/Izafi Zilla Qazi-III, Swat on 19-11-2001. Same was the fate of their revision petition before the High Court which was dismissed on 20-12-2002. On the basis of these judgments the defendants/respondents filed application for rejection of plaint as allegedly it was barred under sections 11 and 12, C.P.C., so liable to be rejected under Order VII, Rule 11, C.P.C. As the petitioner was party to that earlier suit. It appears from the record, with reference to that application, petitioner filed application for conversion of her plaint into application under section 12(2), C.P.C. These both applications were dismissed by the learned Civil Judge vide his order dated 22-3-2010. This order was challenged by the respondents before the learned District Judge/Zilla Qazi, Swat through revision petition, to the extent of their application for rejection of plaint, before the learned District Judge/Zilla Qazi, Swat.
This revision petition was marked to learned Additional District Judge/Izafi Zilla Qazi-II, Swat who dismissed the same on 12-10-2010. But at the same time he accepted the application of petitioner for conversion of plaint into application under section 12(2), C.P.C. By exercising suo motu powers as revisional court. He further directed that the learned Civil Judge should first decide the forum of filing application under section 12(2), C.P.C. With regard to the jurisdiction as appeal in the earlier case was dismissed by learned Additional District Judge/Izafi Zilla Qazi. It appears that in compliance to the order of the learned appellate court, - learned Civil Judge treated the suit of petitioner as application under section 12(2), C.P.C. And returned the same under Order VII, Rule 10, C.P.C. For presentation at proper forum on the ground that earlier suit was decreed by the learned Civil Judge but appeal was dismissed by the learned District Judge and lastly civil revision petition was dismissed by the High Court so that would the proper forum for presentation of application under section 12(2), C.P.C. In light of the judgment of Hon'ble Supreme Court reported in PLD 2010 SC
580. The petitioner filed appeal against this order of the learned C it Judge which was also dismissed on 28-4-2o11, whereby order of the learned Civil Judge was upheld.
3. I have heard the learned counsel for the parties and perused the record with their able assistance.
4. The judgment and decree in the earlier suit filed by Mst. Bakht Nazira shows that petitioner was party to that suit and the suit was decreed as prayed for by the plaintiff Mst. Bakht Nazira. It appears from the judgment that she claimed-the legacy of her father Abdur Rahim by asserting that ,she along with others including the petitioner are entitled to their legal share in the legacy of Abdur Rahim deceased and any transaction made by Muhammad Zubair son of Abdur Rahim is wrong, illegal, collusive and inoperative on her right. This suit was decreed in her favour which clearly means that the suit property was declared as legacy of Abdur Rahim which was to be succeeded by all the legal heirs, including the petitioner. Although this decree was challenged by Muhammad Zubair before the learned District Judge in appeal and before the High Court in revision but both the courts upheld the judgment and decree of the learned Civil Judge. After decree of this suit there was no occasion for the petitioner to file any suit because the right of all the legal heirs of Abdur Rahim were determined and declared in the earlier suit of Mst. Bakht Nazira.
If the Revenue authorities or any other concerned quarter were hesitant in acknowledging her legal rights for incorporation in the concerned record, she could have filed representation for enforcement of the decree. But once she had filed the suit, it cannot be hit by section-11, C.P.C. On the principle of res judicata because there is no adverse findings or decree against the petitioner in that suit. Rather that suit was decreed in favour of her sister. It is settled law that if the earlier suit is decreed but any adverse findings has been recorded therein against the party even then that would not operate as res judicata. This proposition is fortified by judgment of Indian jurisdiction AIR 1932 Madras 541. Likewise the petitioner was not required to file any application under section 12(2), C.P.C. To challenge the decree in suit of Mst. Bakht Nazira because it was not passed against the petitioner. Rather that judgment acknowledged the right of legal heirs of Abdur Rahim. Besides, that when the earlier judgment was being passed, the trial court should have expressly proyided the relief to all the interested parties entitled thereto. Even the appellate court or revisional court was competent to give this relief to all the legal heirs because it was a matter of inheritance and relation of the parties with Abdur Rahim propositus was not disputed. This proposition is fortified by the judgment of apex Court in 1991 SCMR 515 titled Muhammad Qasim Khan and others v. Mst.
Mehbooba and 6 others.
5. So far as the forum of filing of application under section 12(2), C.P.C. Is concerned that has been determined by the Hon'ble Supreme Court of Pakistan in its latest judgment PLD 2010 SC 580 titled Allah Dad and others v. Abdul Ghani and others which is to be followed in letter and spirit. But in the instant case, it has already been discussed and concluded that section 12(2), C.P.C. Is inapplicable to the instant case nor it is an efficacious remedy in the peculiar circumstances of the case in hand. There was no need to file application by petitioner for conversion of their plaint into application under section 12(2) and that is why sensing the consequences, they did not challenge the order of the learned Civil Judge. So there was no need or occasion for learned Additional District Judge/Izafi Zilla Qazi to convert the plaint into application under section 12(2), C.P.C. By exercising suo motu powers which created so many procedural technical hurdles in the way of substantial justice. It is settled law of the Supreme Court that procedural technicalities should not be allowed to prevail on dispensation of substantial justice. Procedural laws are meant to advance the cause of justice and not to thwart it. 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 1qbal 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, 1 do not feel much impressed with them. 1 think the proper place of procedure in any system of administration 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."
6. It appears that order of learned Additional District Judge/Izafi Zilla Qazi Swat dated 12-10-2010 in Civil Revision No,33 is the main cause of hurdle in the way of dispensation of substantial justice which was passed for no justifiable reason. The Courts are under legal obligation to remove hurdle whether technical or procedural in imparting justice and to provide remedy by any means if the party is found entitled thereto. In the instant case, one sister has received her share of inheritance and the other is being made rolling stone through technicalities of procedure, while her relation and status as legal heir is not disputed.
7. So for the reasons discussed above, I accept this revision petition, set aside the impugned orders of the learned Civil Judge and learned District Judge along with the partial order of learned Additional District Judge dated 12-10-2010 passed in Civil Revision No,3 whereby he accepted the application for conversion of plaint into application under section 12(2), C.P.C. By exercising suo motu powers with the result that original plaint of the petitioner shall be restored and the case is remanded to the learned Civil Judge to decide it in accordance with law.