' ALI BAQAR NAJAFI, J.--- Through this Regular Second Appeal, the appellant seeks setting aside of the judgment and decree dated 7-12-2004 passed by the Additional District Judge, Rawalpindi whereby he reversed the findings of the trial Court.
2. The brief facts giving rise to filing of this Regular Second Appeal are that the appellant is residing abroad and therefore, the present appeal was filed through his attorney under his authority. He filed a suit for possession, compensation and permanent injunction against the respondents regarding House No,E-187 Mohallah Qutub-ud-Din, Rawalpindi on the ground that he has purchased it from respondent No,2 vide registered Sale-deed No,4592, Book No,1, Volume No,99 dated 17-5-1990 who himself purchased this property from respondent No,1 in 1987 vide registered Sale-deed No,9479 Book No,1 Volume No,62.
3. Respondent No,1 did not contest the suit and he was proceeded ex parte by the trial Court on 13- 3-1993. Out of the pleadings of the parties following issues were framed:- ISSUES
(1) Whether the plaintiff purchased the suit property from defendant No,2, through registered sale- deed dated 1.7-5-1990? OPP
(2) Whether the plaintiff is entitled to recover compensation for the use and occupation of the suit property from the defendant No,1 who is in possession of this property? If so, at what rate and for what period? OPP
(3) Whether the suit is not maintainable? OPD
(4) Whether the plaintiff has no cause of action and locus standi to bring this suit? OPD
(5) Whether the plaintiff is estopped by his words and conduct to file this suit ? OPD
(6) Whether the sale-deed in favour of the plaintiff is based on fraud and collusion is without authority and is void? OPD
(7) Whether the suit property was transferred to the grand mother of defendant No,1 by the Settlement Department and it vested in the defendant No,1 and his sister? OPD
(8) Whether the defendant No,1 became exclusive owner of the suit property after his sister Shamshad Begum transferred her share to him? OPD.
(9) Whether thumb-impressions of defendant No,1, were obtained in the premises of District Courts on 8-12-1987 on the pretext of getting some mortgaged deed from him which was later on converted into the sale-deed through fraud and collusion of one Brig. Mumtaz, the plaintiff and staff of Registration Branch? OPD
(10) Whether the suit is vexatious and the defendant No,I is entitled to recover special costs under section 35-A, C.P.C. From the plaintiff? If so, to what extent? OPD
(11) Relief ' The appellant presented his attorney namely Brig. Mukhtiar Ahmad as P.W.-1 and exhibited his general power of attorney as Exh.P-1, registered sale-deed dated 17-5-1990 Exh.P-2, registered sale-deed dated 14-12-1987 as Exh.P-3, the original sa1P-deed as Exh.P-4, notice to vacate the suit property as Exh.P-5, Likewise respondent No,1 did not appear personally and presented his attorney, namely, Muhammad Naeem as DW-1, Muhammad Javaid Akhtar as DW-2 and exhibited general power of attorney as Exh.D-1. On 1-4-1998 the suit was decreed, in favour of the appellant, while deciding all the issues in favour of the appellant except Issues Nos.7 and 8 which were not pressed by the appellant. Respondent No,1 impugned the said judgment in R.F.A. No,54 of 1998 which was transmitted to the District Judge, Rawalpindi for pecuniary jurisdiction. On 7-12-2004 the finding on Issue No,3 regarding maintainability was reversed by him holding that the suit was filed by an incompetent person as the plaint did not .Contain the concise statement to the effect that the suit was filed through his attorney. Hence this regular first appeal.
4. Learned counsel for the appellant submits that there is no express penal provision contained in the procedural law relating to the incorporation of concise statement in the body of the plaint requiring mentioning of name of the attorney through which it was filed; that the procedural law is meant for advancement of justice and not to penalize the litigant; that no specific objection was taken by the respondents in their written statement; that respondents have never challenged the authority of the attorney of the appellant rather admitted the execution of the general power of attorney (Exh.P-1); that the general power of attorney was exhibited by the attorney himself while appearing as P.W.-1 who was not cross-examined on this aspect; that under section 99 of the C.P.C.
The judgment cannot be reversed or substantially varied on account of any misjoinder of parties or causes of action or any error, defect or irregularity in any proceedings in the suit not affecting the merits of the case or the jurisdiction of the court. Hence prays for the setting aside of the impugned order.
5. Conversely, learned counsel for the respondents submits that Issue No,3 was regarding maintainability and the suit was rightly found to be not maintainable; that clause-'A' of general power of attorney Ex.P-1 does not permit the appellant to give evidence or to file a suit but was specifically restricted to succession certificate; that under Order VI, Rule-14 of the C.P.C. The plaint was not signed by the authorized person. Places reliance on Messrs GOTCO TRADING LIMITED v.
GOVERNMENT OF PAKISTAN, ETC. (2004 CLC 205(sic)) to argue that the suit was not filed in accordance with section 9. Of the C.P.C. As the court cannot take cognizance in, a suit which was not properly instituted; that the name of the attorney is not mentioned in the title of said suit.
Places reliance on Abdul Hameed Khan v. Mrs. Saeeda Khalid Kamal Khan and others (PLD 2004 Karachi 17), Messrs GETCO TRADING LTD. Through Local Agent v. GOVERNMENT OF PAKISTAN through Director General and 2 others (2003 YLR 3309) to argue that instant RSA is liable to be dismissed.
6. I have heard the learned counsel for the parties and perused the record.
7. The learned appellate court reversed the finding of the trial Court on the issue of maintainability by holding that since the plaint does not mention the name of the attorney either in the title or in the body, therefore, the suit was not properly filed. However, no specific issue was framed regarding said question as no specific objection was raised in A the written statement. Moreover, in his statement P.W.-1, the attorney was not questioned regarding his status as an attorney. Even in the registered general power of attorney Exh.P-1, the power to initiate and defend all proceedings involving succession certificate arising out of the B death of the father of the executant, have been atoned to Brig. (R) Mumtaz Ahmed Chaudhry. It is settled principle of law that court is required to give finding on the questions formulated before it in the form of issues. Moreover, in Toor Gul v. Mst.
Mumtaz Begum, reported as PLD 1972 SC 9, the Full Bench of the Hon'ble Supreme Court had observed that rules framed in C.P.C. Are made for advancement of lc justice and they should not, as far as possible, be allowed to operate so as to defeat the ends of justice. All procedural laws are meant to foster the cause of justice and not to thwart it as more important is that substantial compliance of procedural law, and not its technical observance. A liberal view in procedural matters would save the party from technical knockout, and promote cause of justice. This is precisely spirit of section 99, C.P.C. Wherein mere error or irregularity not effecting the merit or jurisdiction, is not sufficient for setting aside a decree. Non-signing of plaint as held in Ismail v.
Bashir (1981 SCMR 687) a curable irregularity which L rectifiable. The judgment 2003 YLR 3309 and PLD 2004 Karachi 17 by the learned counsel for the respondent is not attracted as there the general power of attorney was neither exhibited nor referred in the evidence but in the instant case it was not only exhibited as Exh.P-I but was also admitted by respondent. Material facts were pleaded in the plaint fulfilling the requirements of Order VI, Rule 2, C.P.C., as laid down in PLD 1947 Privy Council 180.
8. Since the concise statement not mentioning the name of general attorney was a non-issue, therefore, the learned appellate court had E committed material illegality in a procedural matter which has resulted in injustice.
9. I, in view of the above, set aside the judgment and decree dated 7-12-2004 and restore the judgment and decree dated 1-4-1998 by decreeing the suit.