1. SARDAR LIAQAT HUSSAIN, J. The captioned appeal has been filed against the judgment and decree dated 14.10.2020 passed by the learned District Judge Muzaffarabad, whereby, suit filed by respondent No.1 herein, has been decreed.
2. Concisely, stated facts of the case are that respondent No.1, herein, brought a suit for possession on the basis of right of prior purchase in respect of suit land before District Judge Muzaffarabad on 09.08.2016. It was stated that khewat No.665, survey No.1247 (min) old, 2948 new, measuring 13 marlas 4 sarsai alongwith constructed house was in possession of the father of plaintiff and now is in his possession. It was further alleged that in survey No.1247 old, renumbered as 2945, 2947, there are 2 houses, 6 shops etc. owned by his maternal grandfather namely Maqbool Ahmed Qureshi and his uncle Manzoor Ahmed Qureshi. It was further alleged that between three houses and the house of plaintiff, towards north west, a Ghair mumkin path was in use for last 50/55 years, which was being used by the residents of all three houses for going towards Madina Market. It was stated that in front of Ghair Mumkin Gali/path, plaintiff had raised his boundary wall and installed the gate. It was stated that after death of maternal Grandfather, his legal heirs, transferred house and shops from survey No.2945 measuring 10 marlas, 01 sarsai to defendant No.2 Mst. Rifat Qureshi through gift deed dated 18.05.2002 and mutation No.196 was registered on 27.06.2005. It was alleged that defendant No.2 intended to sell out her share, which was adjacent to the house of plaintiff and the easement rights were also common and finally agreed to sell the disputed property, except the common way, path/street in favour of plaintiff for consideration of Rs.180000/- and received Rs.500000/- as earnest money. The plaintiff claimed that consideration amount of the disputed property was actually Rs.1800000/- and in order to defeat the right of pre-emption, the price has been mentioned as Rs.2500000/- in sale deed dated 12.11.2003. The plaintiff claimed decree for possession on the basis of right of prior purchase. Defendants contested the suit by filing written statement and refuted the claim of plaintiff. In light of pleadings of parties, learned Court below framed issues on 16.06.2015. On 10.08.2017 and 28.08.2017, some additional issues were framed.
3. The learned Court below heard the parties, pro and contra, on additional issue No.4 and decreed the suit in favour of plaintiff vide its judgment and decree dated 14.10.2020, hence, the captioned appeal.
4. Learned counsel for the parties have filed written arguments which are made part of file, hence, need not to reiterated.
5. I have considered the written arguments filed by learned counsel for the parties and gone through the record of the case with utmost care.
6. A perusal of record reveals that learned Court below has decided the additional issue No.4, which is reproduced as under: The learned District Judge decreed the suit by considering written statement as admission on the ground that in the verification, defendants have not mentioned that it is verification, while contents of suit from paras Nos.1 to 13 along with initial objections Nos.01 to 17, contents, reasons from sub- clause and prayer clause of the knowledge and information provided by client defendants are correct. A perusal of record further reveals that defendants in the written statement and in the amended written statement specifically denied the averments made in the plaint, however, by a clerical mistake in the verification, the word suit has been written instead of written statement. Earlier, an application was filed on behalf of defendants that word 'suit', written in the verification of the written statement may be corrected and substituted by words 'written statement'. The learned District Judge after hearing the parties on issue, vide order dated 09.11.2018, it was observed that the defendants have specifically denied the contents of suit and mere written of word 'suit' in the verification is a clerical mistake, which can be curable being an irregularity and while accepting the application, directed the Reader of the Court to make correction in the verification by omitting clerical mistake subject to payment of cost of Rs.1000/-.
7. The main argument advanced by the learned counsel for plaintiff/respondent No.1 herein, that the order dated 09.11.2018 has not been complied with by the defendants and did, not make correction in the verification. This argument of learned counsel for plaintiff is baseless because it has clearly been mentioned in the order dated 09.11.2018 that application for correction is accepted subject to payment of Rs.1000/- as costs and Reader of Court was directed to correct the clerical mistake sought to be corrected, hence, it was responsibility of the concerned Reader to make correction as was ordered by the Presiding Officer vide order. dated 09.11.2018. The argument advanced by the learned counsel for plaintiff/respondent that defendants did not pay fine Rs.1000/- cannot be believed for the reasons that if fine was not paid as was ordered by the Court, than it was responsibility of the concerned Reader to apprise the Court that fine has not been paid and then the Court may pass fresh order, however, neither any payment of fine of Rs.1000/- nor correction in the verification has been mentioned, however, the order can be complied at any time even if defendant did not pay fine. It was enjoined upon the Court, firstly to direct the defendant to pay compensation within time prescribed for the purpose and if after expiry of such time, defendants do not comply with the order then the suit could have been dismissed for non-compliance. As the defendants have taken stand that they deposited the fine then on this ground it cannot be said that the order dated 09.11.2018 has not been complied with. It is the fault on the part of official/officer of the Court that in compliance with order dated 09.11.2018 correction has not been made in the verification, therefore, defendants cannot be penalized for the fault of authority. My this view finds support from case law reported as [2003 SCR 450], [2011 SCR 273] and [2016 SCR 714].
8. In a case reported as 2003 SC 450, the Hon'ble apex Court held that: "We have repeatedly laid down that no one can suffer on account of the act of authority. If any irregularity or illegality was committed by the authority in taking some action, the person who had been wrangled on account of such action of the authority, is entitled to restore the same position as of right".
9. In case titled "Shahida Iftikhar and 3 others v. Shabana Mumtaz and 3 others reported as 2011 SCR 273, Hon'ble apex Court held as under: "It is an accepted principle of law that no one should suffer for any error or act of the Court. The Courts are vested with powers to correct, such error or omission at any time. Law requires the decision of disputes on merits and technicalities have to be avoided which, hamper Justice, so far as possible".
10. In a case reported as 2016 SCR 714, it was held that: "It is a settled principle of law that no one shall suffer due to the act of the Court or act of a public functionary, on the action of whom a citizen has no control. It is an established principle of law that no person should suffer for the errors committed by the Court".
11. As stated earlier that defendants specifically denied the claim, contents of suit, therefore, the Court below wrongly considered the written statement of defendants as admission illegally and erroneously decreed the suit by treating written statement which was a detailed deny of contents of plaint as admission. Under law mere pleadings which amounts to admission cannot be believed until the concern party is examined by the Court as has been held in [2000 SCMR 1391]. Relevant portion is reproduced as under: "It is trite law that pleadings are not evidence by themselves and that statements of a defendant in written statement could not be used as evidence when amounting to admission of plaintiff's pleas, without the examination of the concerned party in its support".
12. In the instant case, neither the content of plaint was admitted as true nor any of the defendants was examined rather the Court erroneously treated the written statement as admission through the impugned order which is not sustainable.
13. The next contention advanced by learned counsel for plaintiff/respondent No.1, which was accepted by the Court below while passing the impugned order that verification was not signed by any of defendants/appellants, which was necessary requirement has also no force of law because non-compliance of provision of Order VI, Rule 15 are not mandatory in nature rather are directory as no penal clause is provided in the statute and non-compliance of said provisions of law can be cured at any stage even at appeal stage. Reliance can be placed as [1981 SCMR 687].
14. Thus, the suit could have also not been decreed on the ground that verification was not signed by any of the defendants rather under law an Advocate who is treated as an authorized person may sign the verification by mentioning that the contents of plaint or written statement are correct to the knowledge received by him/her client, hence, signing the verification by mentioning that all the paras, sub paras, prayer clause of the written statement are correct as per knowledge provided by his client, learned counsel rightly signed the verification put on the written statement. The case law referred to and relied upon by learned counsel in this regard are totally irrelevant and has no nexus with the controversy in hand rather the impugned judgment and decree is stigma on the ability of learned Judge, who pass the impugned judgment and decree.
15. It is also pertinent to note here that at page No. 33 of the impugned judgment, the learned District Judge without discussing available material, relevant issues has observed that plaintiff has preferential right to purchase the suit land visa vis to defendants. This observation of District Judge is not based on any material, shows that learned District Judge has decided the case erroneously.
16. It is also relevant to note that appellant has taken stand that at the time of institution of plaint defendant, Muhammad Miskeen was died, therefore, the suit has been filed against dead person, hardly required to mention that suit against dead person can be filed.
17. The upshot of above discussion is that the appeal is accepted, while setting aside the impugned judgment and decree dated 14.10.2020, the case is remanded to learned District Judge Muzaffarabad for fresh decision after recording evidence, however, to proceed further, learned District Judge Muzaffarabad is directed to decide legal issues particularly issues Nos.1, 2, 4, 9, 12 etc. and also to decide the fate of suit by considering the fact that at the time of institution of suit defendant, Muhammad Miskeen Awan has died. As direction was already issued for decision of the case has not been complied for one reason or other, therefore, the Court below is directed to decide the case within period of one month and if the suit is maintainable on legal issues, to decide the same within the period of 6 months.