Revision Petitions Nos. 24/1979 and 4/1980 shall be disposed of by this common order as they arise out of the same case.
2. The facts of the case may be given first. The petitioners filed a suit in the Court of Assistant Commissioner, Sarawan, on 7th May, 1978 seeking declaration that they were hereditary tenants of the agricultural lands in suit to the extent of 18 out of 19 shares, whereas the respondents jointly owned with them the remaining one share, but they had deprived them of their rights. In their written statements dated 15th May, 1978 while repudiating such averments, the respondents also objected to the main--tainability of the suit on the ground that necessary consequential relief of having not been claimed, the suit was liable to be dismissal he lacuna in the frame of the suit, the plaintiffs sought amendment of the plaint vide application dated 26th June, 1978, but the Qazi, Sarawan, who had by now received the case from the Assistant Commissioner for trial, dismissed it on 23rd July, 1978, simply saying that if relief of possession was essential, a fresh suit should be filed.
This order has been assailed it Civil Revision No. 24 of 1979. Next, he fixed the case for further proceedings, on 4th September, 1979, and then adjourned it to 8th October, 1979. On 7th October, 1979, Syed Riazul Hussain, learned counsel for the petitioners, approached him with an application of the same date for fixation of the case on a later date as he was busy before the High Court on 8th October;1979 and petitioner's attorney was also indisposed and could not attend the Court. He has submitted that upon this application he was told by the Qazi, that he would fix the case for 12th November, 1979 when it came up for hearing on the following day. Though no formal orders to this effect are to be seen either on the application or on the order-sheet, but a subsequent stages this statement was also not controverted. On 8th October, 1979 when the case came up for hearing, the Qazi rejected the adjournment application as the same was opposed by the respondent's learned counsel on the plea that prayer for adjournment was only a device to prolong the case.
Simultaneously the Qazi also passed the order of dismissal of the suit under Order IX, rule 8, C. P. C.
On the ground that if the counsel was prevented from appearance for some reason at least the petitioners should have attended the Court. This is a short and ambiguous order and fails to deal with the grounds urged by petitioner's learned counsel for adjournment which, among others, mentioned that the attorney of the petitioners was also unable to appear on that date on account of illness. However, the petitioners appeared in Court on 12th November, 1979 and upon coming to know about the dismissal of the suit applied for its restoration under Order IX, rule 9, read with Order XLVII, rule 1, C. P. C. In the accompanying affidavit it was explicitly mentioned that the Court had assured that on 8th October, 1979, the case shall be adjourned and will be fixed for 12th November, 1979. This application was also dismissed on 17th February, 1980 on the short ground that the application was submitted beyond the period of thirty days, provided by Article 163 of the Limitation Act for applications under Order IX, rule 9, C. P. C. And as far as the invocation of the provisions of Order XLVII, rule 1, C. P. C., which was governed by Article 173 of the Limitation Act, and prescribed a period of 90 days, was concerned it had no relevance to the case. Civil Revision No. 3 of 1980 arises out of this order.
3. Adverting to the order of dismissal first, it is not disputed that the learned counsel had submitted adjournment application a day earlier to the date of hearing of the case. Upon this only two courses were open to the Qazi. He could either refuse to entertain this application, if he thought that the question of adjournment of the case could not be decided in the absence of the opposite side, or exercising the discretion vested ~ in him by law, he could adjourn the case either with or without some compensation for the other side, there and then or on the following day. He seems to have adopted the later course to the extent of adjourning the case for 12th November, 1979. This presumption finds ample support from the fact that he entertained the application, and then rejected it on the following day. In the order of dismissal of the suit also he did not insist that appearance of the petitioner's counsel was also necessary. Rather he mentioned his absence in the language which suggests that he did not object to it. Moreover, he did not repel the petitioner's specific contention to this effect made in that application for restoration of' the suit. Ir this view of the matter the period of limitation of 30 days should have been computed from 12th November, 1979, and if that had been done it would have brought the application within the prescribed time limit. Even otherwise in such circum--stances, where the demand of justice was the disposal of the case on merits, law did not place any embargo upon his powers to consider review of order under Order XLVII, rule 1, C. P. C. Which provided ninety days period his for such purpose. Procedural laws are meant to so govern and regulate the proceedings that the purpose of fair, just and equitable decision of a litigated question may be achieved as nearly as possible. No doubt while doing so, the Court has to keep in mind the scheme of the law and procedural laws in particular are. Not too strict either. Blind-folded adherence to technicalities which may stifle the course of even-banded justice and fairplay is not appreciable in any judicial system much less ours. To achieve the purpose of equitable justice liberal application of such enabling provisions which may assist in fairly regulating the course of justice is always necessary. Such an attitude may, at times, necessitate relaxed construction of some provisions of procedural laws ; that too is not uncomplimentary or objection--able as long as the spirit of law and justice is not injured. While 'doing so, particular care should be taken of the fact that no valuable right which might have accrued to the other side is harmed. Adoption of harsh an retrogressive attitude on easily surmountable technicalities amounts t sacrificing the very aim of law at the alter of unimportant formalities, and precisely that is what the Qazi has done in this case. I would therefore accept this revision petition.
Mr. W. N. Kobli, learned counsel for the respondent, raised an objection to the maintainability of this revision petition on the ground that Order XLIII, rule 1, C. P. C. Provided appeal against the orders made under Order IX, rule 8, C. P. C. Which the petitioners had not availed of. He placed before me the case of Muhammad Umar and 3 others v. Munshi Yar Munammad (PLD 1978 Quetta 107) in which the scope and application of the revisional jurisdiction of this Court was elaborated and it was held that revisional jurisdiction of a Court was to be invoked only in cases where appeal was not competent. The facts and circumstances of that case are clearly distinguishable inasmuch as in that case the revision had been filed against the final order passed by the Court on merits without resorting to remedy by way of appeal and then the order impugned in that case had also no reference to Order XLVII, rule 1, C. P. C. In this case it cannot be ignored that review of the order of dismissal was' also sought by the petitioners, and though practically the result of application under Order IX, rule 9 and one under Order XLVII; rule 1, C. P. C. Would! Be identical except for the limitation as mentioned earlier, but there being no legal restriction to choose one of the two remedies, the latter remedy which is general in nature, can always be invoked and a Court should not C refuse to exercise its review jurisdiction in deserving cases in the interest of justice. Accordingly refusal to exercise jurisdiction under Order XLVII, rule 1, C. P. C. Attracts the revisional jurisdiction of this Court and. Render the objection unweighty. On the point of competency of this petition, Syed Riazul Hassan, cited Manager, Jammu & Kashmir State Property in Pakistan v. Khuda Yar and another (PLD 1975 SC 678) in which case in similar circumstances an objection of this kind was overruled by the Court... This objection is thus repelled.
5. Civil Revision No. 24 of 1979 assails the order dated 23rd duly, 1978 whereby the Qazi disallowed amendment in the plaint to add the relief of possession. In this respect suffice it to say that such permission is not to be withheld normally, unless it was apparent that it would change the complexion of the case by insertion of any irrelevant issue or destroy any right of the other side which deserved protection by the Court. But where such amendment ensures complete and effective decision of the litigated question before the Court it should not be refused. In Karamat Ali and another v. Muhammad Yunus Haji and others (PLD1963SC191) relief of possession was allowed to be introduced in a declaratory suit, even at the stage of appeal before the Supreme Court, which is fairly belated stage comparing to the early trial stage of the suit. The impugned order ,is thus untenable and I accept this petition as well.
Consequent upon the acceptance of both the revision- petitions the order under revision shall stand set aside ; the case shall be sent back to the Qazi Sarawan for trial after allowing suitable amendment of the plaint and adding necessary issues. The case should be disposed of expeditiously. The parties shall bear their own costs.