MUHAMMAD IJAZ KHAN, J. Through the instant writ petition, petitioner has challenged the order and judgment of learned Civil Judge-IV/Illaqa Qazi Swat dated 15.09.2022 whereby the application of the respondents/defendants for sending the Hiba-Nama dated 09.08.1986 to the FSL was allowed and that of order and judgment of learned Additional District Judge-II/Izafi Zila Qazi Swat dated 07.10.2022 whereby the revision filed by the present petitioner was also dismissed.
2. Precisely the facts of the case are that the present petitioner then plaintiff brought a suit for her share in the legacy of the Sargand Khan claiming herself his legal heirs along with the respondents/defendants Nos.1 to 7. She has also prayed in Para "Jim" of her plaint for the cancellation of Tamleek Deed No. 216 dated 09.08.1986.
3. Respondents then defendants were summoned and they submitted their written statement hereby defendants Nos. 1 to 4 defended the aforesaid deed being a genuine and validly executed document which was executed by defendants Nos. 5 to 7 in their favour. In view of the divergent pleadings of the parties the issues were framed by the learned trial court and the parties were directed to produce their respective evidence. Accordingly, the petitioner/plaintiff produced as many as four witnesses and thereafter closed her evidence. It was during this stage of the proceedings when the respondents/defendants submitted an application for sending the deed No. 216 dated 09.08.1986 to the FSL for the comparison of the thumb impressions of the petitioner/plaintiff, which application was contested by the petitioner/plaintiff by filing her written reply, however, the aforesaid application was allowed by the learned trial Court vide one of the impugned order and judgment dated 15.9.2022. Petitioner/plaintiff felt herself aggrieved of the aforesaid order, preferred a revision petition before the learned revisional Court, however, the same was also dismissed vide the second impugned order and judgment dated 07.10.2022. Petitioner has now challenged the aforesaid orders and judgments of the two Courts below before this Court through the instant petition.
4. Arguments of learned counsel for the petitioner were heard in considerable detail and the record perused with his able assistance.
5. The record would show that the petitioner/plaintiff has challenged in Para No. "Jim" of her plaint the authenticity and genuineness of the deed No. 216 dated 19.08.1986 as well as many other mutations executed and entered on the basis of the aforesaid deed, whereas the respondents/defendants Nos.1 to 4 have termed the said deed as genuine and correct, therefore, the same deed is the epitome and nucleus of the present controversy between the parties and as such it will be the proof as well as genuineness or otherwise of the aforesaid deed which will decide the fate of the case as well as the rights of the parties, therefore, such aspect of the case was rightly appreciated by the learned trial Court while sending the same to the FSL for comparison of the thumb impressions of the petitioner/plaintiff on the disputed and controverted deed.
6. It may also be noted that all procedural laws are meant to advance the cause of justice and as such procedural formalities and technicalities could never be used as a tools to defeat the cause of justice. As stated hereinabove that sending the deed to the FSL for comparison of the thumb impression of the petitioner/ plaintiff would not prejudice her case in any manner, rather it will help the learned Trial Court to ascertain the real facts and to a reach correct conclusion. The stance of the present petitioner that the responders/ defendants were required to establish the same through direct evidence is misconceived as stated hereinabove that it is the direct evident as well as confirmatory evidence or any other material or evidence which will help the Court of law to reach a correct decision, therefore, such objection of the learned counsel for the petitioner is of no help for him. In the case of "Anwar Khan v. Fazal Manan" reported as 2010 SCMR 973, it was observed by the Hon'ble apex Court that it is well-settled principle that the most important duty of the courts of law is to do justice between the parties and in the absence of any express power, normally on technical grounds, they should not hesitate to give proper relief. It must also be mentioned that civil courts are courts of both law and equity and in the absence of special reasons they should also be inclined to do substantial justice and matter of controversy should also be disposed of on merits and not on technical consideration. This is always more important in cases where there is apprehension that the party concerned shall be seriously prejudiced if the application or suit is not restored. It is also a settled proposition of law that the principal object of legal formalities and procedural provisions is to safeguard the interest of justice and the procedural provisions unless insurmountable should not be allowed to defeat the ends of justice.
The procedure prescribed is always for the purpose of doing justice between them and should not come in the way of doing substantial justice.
7. Since the petitioner through the instant writ petition is seeking issuance of a writ of certiorari to declare the impugned orders and judgments of the fora below as unlawful or illegal, therefore, she is bound to establish that they have exceeded their jurisdiction or they have not properly exercised their jurisdiction or they were not having jurisdiction, however, she could not pointed out any such legally recognized ground for the issuance of the desired writ of a certiorari. In the case of Amjad Khan v. Muhammad Irshad (deceased) through LRs. reported as 2020 SCMR 2155 the Hon'ble apex Court has held that the High Courts must not exercise their constitutional jurisdiction in order to interfere with the discretion exercised by lower Court unless the same suffers from jurisdictional, factual or legal errors. In other words, such interference would be justified in cases where the impugned order has been passed without jurisdiction or is based on misreading or non-reading of evidence, or is not accordance with the law. If none of these errors is present, the High Courts must not exercise their constitutional jurisdiction to interfere with the findings of lower Courts merely because it reached a different conclusion as to the controversy than the latter. Similarly, in the case of "Chief Executive Mepo and others v. Muhammad Fazil and others reported as 2019 SCMR 919, the Hon'ble apex Court has declared that where the Court or the Tribunal has jurisdiction and it determines specific question of fact or even of law, unless patent legal defect or material irregularity is pointed-out, such determination cannot ordinarily be interfered with by the High Court while exercising jurisdiction under Article 199 of the Constitution. In the case of "Chairman NAB v. Muhammad Usman and others" reported as PLD 2018 Suprem e Court 28, the Hon'ble apex Court has held that the powers of judicial review vested in High Court under Article 199 of the Constitution is no doubt a great weapon in the Judge's hands, however, the same shall not be exercised in a case where discretion is exercised by the subordinate court/Tribunal in a fair and just manner without violating or disregarding statutory provision of law, likely to occasion the failure of justice. Ordinarily such extraordinary jurisdiction shall not be exercised at random and in routine manner.
8. Accordingly, this petition being bereft of any merits is hereby dismissed, in limine.