SYED ARSHAD ALI, J. Called into question herein is the judgment decree/order of the learned Additional District Judge IV Nowshera dismissing the appe al of the present petitioners on the ground that it was filed by a dead person.
2. Arguments heard and record of the case was perused.
3. It is evident from record that Mirbad Khan the predecessor of the present petitioner and others had filed a suit before the Civil Court Nowshera, seeking declaration etc in respect of the disputed property. During the pendency of the proceeding, Mirbad Khan the predecessor of the present petitioner had passed away and thus on 30.01.2015 his legal heirs had filed an application for bringing on record their names through their counsel as well as attorney. On the file of the trial Court the power of attorney of the legal heirs of Mirbad Khan in favour of Muneeb Ullah son of Fazal Ullah is also available.
4. The suit of the plaintiff was dismissed by the trial Court vide judgment and decree dated 11.04.2018, however, the decree sheet drawn by the trial Court does not mention the legal heirs of Mirbad Khan.
Probably for this reason the learned counsel representing the present petitioner when filed an appeal before the learned appeal Court he has mentioned the appellant as Mirbad Khan instead of his legal heirs.
However, the attested copy of wakalat Nama available on record shows that the name of the appellant is once again mentioned as Mirbad Khan but through attorney and for that reason when the appeal came up for hearing before the Court on 28.06.2018 the same was dismissed for the reason that Mirbad Khan the appellant had died some five years back to the institution of the appeal.
5. It appears that the learned appeal Court has dismissed the appeal on hyper technical grounds ignoring the fact that the said mistake is attributable to the trial Court when in the decree sheet Mirbad Khan has not been stated/mentioned being represented through legal heirs and secondly it is the mistake of the learned counsel representing the appellant. In the circumstances it is not appropriate that for the mistake of the Court and the counsel the poor and illiterate litigants be suffered.
6. Indeed, it is settled law that the mistake of court prejudice none and the appeal is a continuation of the original proceedings before the higher forum for testing the soundness of the decision of the lower Court. Thus , the mentioning of incorrect title in the memo of appeal would not deprive the appellant from their legal right to pursue their remedy before the higher forum when they have vigilantly and within time filed the said appeal "Shivrattan G.
Mohatta and another Vs Messrs Mohammadi Steamship Co. LTD(PLD 1965 Supreme Court 669) and Muhammad Ashraf Vs Dilbar Khan(2011 CLC 304)."The learned appeal Court has acted in hyper technical manner which is against the settled principle of administration of justice that any, system which by giving effect to the form and not the substance defeat substantive right is defective to the extent. "Imtiaz Ahmad Vs Ghulam Ali (PLD 1963 Supreme Court 382)". Resultantly order/judgment decree of the trial Court is not sustainable which is, accordingly , set aside. The appeal of the present petitioner shall remain pending before the learned appeal Court which shall be decided by the learned Court on merit.