RANA BHAGWAN DAS, J.---This judgment shall dispose of aforesaid four Constitutional Petitions arising out of identical facts pertaining to a common plot of land owned by the petitioner.
2. Petitioner filed four separate suits for Declaration, Permanent injunction and Possession against respondent No.3 in each of the petition seeking a declaration of title and dispossession of the private respondent from a portion of Plot No. 134, Block-A, Unit No. IV, Latifabad he being a trespasser. Each of the suits was fixed for petitioner's evidence on 18-7-1990 before the 1st Senior Civil Judge, Hyderabad when an application on behalf of his counsel was moved for adjournment on the ground that he was busy before the Court of Special Judge Customs and Anti-Smuggling at Karachi and thus unable to appear before the Civil Court at Hyderabad. Respondent No.2 however rejected this application and dismissed the suit in default. Subsequently an application for restoration of the suit under the provisions of Order IX, Rule 9, C.P.C. In each suit was moved on behalf of the petitioner which after contest was dismissed vide order dated 1-9-1991 on the ground that earlier the suit had been dismissed for default twice and restored. Another ground which weighed with the trial Court in dismissing the plea for restoration of the suit was that the petitioner as well as witnesses had remained absent on the date of hearing.
3. Although an order rejecting the prayer for restoration of suit isappealable under the provisions of Order 43, Rule 1(c), C.P.C., the petitioner was ill-advised to file a Civil Revision Application in each of the suits before the learned District Judge, Hyderabad under the provisions of section 115, C.P.C. In support of the memo. Of Revision Application, petitioner filed his own affidavit seeking to explain that he could not appear for his evidence on the date of hearing as he was sick. A copy of medical certificate to this effect was also filed. Unfortunately for the petitioner, learned District Judge also dismissed the revision application without realising that the impugned order was appealable and could not be legally revised. Learned District Judge in the impugned order omitted to dilate upon the explanation furnished by the petitioner in support of his absence on the date of hearing as well as the medical certificate to substantiate his plea. He was again misled by the circumstance by observing that there was no explanation whatsoever as to why the petitioner and his witnesses had remained absent on the date of hearing when the suit was fixed for evidence.
4. III-advised, as he was, again the petitioner filed Civil Revision Application in each of the suits before this Court seeking to impugn the validity of the orders passed by the trial Court as well as Court of appeal but it appears that an objection being raised the .Petitioner withdrew the Civil Revision Application subject to permission to file a Constitutional petition. It is in these circumstances that the aforesaid petitions were filed invoking Constitutional jurisdiction of this Court for a declaration that the impugned orders are without lawful authority and passed without jurisdiction and an order for restoration of the suit with a direction for decision on merits.
5. We have heard learned counsel for the parties and examined the material on record. Aforesaid narration of the events that preceded the institution of these petitions reveals that four suits were filed sometimes in February, 1987 on identical facts and seeking identical relief in each of the suits.
There is no denial of the fact that in the first instance suit was dismissed on 24-1-1988 and restored on 4-4-1988. For the second time the suit was dismissed on 12-4-1989 and restored to its original number on payment of costs vide order dated 24-4-1989.
6. While disallowing restoration of suits learned Senior Civil Judge, Hyderabad was influenced by the delay occasioned in the decision of the suits on merits and disturbed by negligent attitude and conduct on the part of the petitioner without realising that valuable proprietary rights in urban area of Hyderabad city were involved and dismissal of the suits without adjudication would encourage wrongful possession over a piece of land by the private respondent in each of the cases, learned District Judge followed the suit. It is true that the order of dismissal passed by the trial Court on the face of it cannot be declared to have been passed without lawful authority in any case it is unjust, improper, harsh and bad in law. Admittedly learned Senior Civil Judge had the jurisdiction and authority to pass the impugned order but the judicial discretion vested in a Court must be invariably exercised fairly, justly and for securing the ends of justice and to defeat the mischief rather than to perpetuate a wrong involving title and interest in valuable property. As observed earlier learned District Judge did not bother to see that the Civil Revision Application was incompetent and rather barred under the provisions of subsection (2) of section 115, C.P.C providing that the District Court may exercise the powers conferred on the High Court by subsection (1) in respect of any case decided by a Court subordinate to such District Court in which no appeal lies. It has been observed earlier that the impugned order passed by the Civil Court under the provisions of Order IX, Rule 9, C.P.C is appealable by way of a Civil Miscellaneous Appeal under Order XLIII, Rule 1, C.P.C read with section 104, C. P. C.
7. It was contended on behalf of the petitioner that the learned District Judge is deemed to have exercised the jurisdiction vested in him under Order 43, Rule. 1, C.P.C as obviously the Revision Application was incompetent. We are however unable to find any substance in this argument as neither a notice under Order 43, Rule 3, C.P.C. Was issued to the private respondent in each of the petitions nor was the memo. Of Revision Application filed within 30 days which is the period of limitation for preferring an appeal from an order. Impugned order having been passed on 1-9-1990, Revision Application before the District Judge was preferred for the first time on 25-11-1991 which completely demolishes the argument that in fact the learned District Judge is deemed to have acted under appellate jurisdiction vested in him. Besides apart from the circumstance that the appeal by this time had become barred by limitation, no prayer was made before the District Judge for treating the revision application as Miscellaneous Appeal and for condonation of delay.
In these circumstances it cannot be held that the District Judge, while dismissing the Revision Application acted in the exercise of his appellate jurisdiction. The petitioner having himself invoked the revisional jurisdiction of the District Court cannot be allowed to say that in fact a Civil Miscellaneous Appeal was preferred before the District Judge. It is evident that the petitioner himself was not certain about the legal position inasmuch as after filing Civil Revision Application before this Court he had withdrawn the same realising that the same was misconceived and no maintainable at law.
8. There can be no cavil with the proposition of law that the law leans in favour of adjudication of disputes on merits but this principle cannot be allowed to be exploited by litigants who do not invoke the jurisdiction of the Court with clean hands. Law favours adjudication of a case on merits only when a person comes to the Court with clean hands and equitable considerations also lie in his favour. Again for securing the ends of complete justice and defeating the mischief technicalities of law cannot prevent High Court from exercising is Constitutional jurisdiction and affording relief which otherwise a petitioner is found entitled to. Notwithstanding, unusual delay in the progress of the suits filed by the petitioner it cannot be held by any stretch of reasons that the petitioner had resorted to litigation with unclean hands. In the face of valuable rights of the parties involved in immovable property lack of decision on merits is likely to give rise to injustice in perpetuity rather than the advancement of cause of justice. I am fortified in this view by a decision of the Honourable Supreme Court of Pakistan in case of Pakistan Engineering Council and 2 others v. Engineer I.A. Osmani and 3 others (1991 SCM R 654) wherein it was observed that in the matter of entertainment of petitions and grant of relief in equitable and discretionary jurisdiction it is necessary not to be guided wholly by the technicalities of the law but also by the substance of the controversy when the proceedings did not suffer from mala fides of fact. The technicalities cannot be permitted to defeat the ends of justice was the view taken by the illustrious Judge late Mr. Justice A. R. Cornelius in the case reported as Imtiaz Ahmad v. Ghulam Muhammad and 2 others (PLD 1963 SC 382). Relevant portion from the judgment may be reproduced for the sake of advantage and proper understanding of the above principle of law: "I must confess that having dealt with technicalities for more than forty years, out of which thirty years are at the Bar, I do not feel much impressed with them. I think the proper place of procedure in any system of administration of justice is to help and not thwart the grant to the people of their rights. All technicalities have to be avoided unless it be essential to comply with them on grounds of public policy. The English system of administration of justice on which our own is based may be to a certain extent technical but we are not to take from that system its defects. Any system which by giving effect to the form and not to the substance defeats substantive rights is defective to that extent. The ideal must always be a system that gives to every person what is his."
9. Aforesaid view was reiterated in the case of Province of East Pakistan v. Sirajul Haq Patwari (1967)
1 PSCR 35 in the following words: "It was, as I have already remarked, a res of the highest order and when it was placed in jeopardy by the petitions moved in these cases, it was the duty of the High Court in interpreting and applying the relevant instruments including the Constitution to bear in mind the great maxim ut res mages valeat quam pereat that is to say, that the affair should prosper rather than be brought to destruction. It may be that the maxim that was borne in mind was rather fiat justitio rural coelum, that is to say let justice prevail though the heavens should fall."
10. This golden rule of jurisprudence was consistently followed by the Honourable Supreme Court in the case of Manager, Jammu and Kashmir Estate Property in Pakistan v. Khuda Yar and another PLD 1975 SC 678 in which it was held as under: "The proposition could hardly be disputed that the principal object behind all legal formalities is to safeguard the paramount interest of justice. In fact while considering the importance of legal technicalities and rules of procedure in the administration of justice, it is inevitable to recall the various evolutionary stages in the transition from justice without law of primitive society to justice in accordance with law of modem society and the conflict between equity and law in judicial history.
It cannot be denied that legal precepts were devised with a view to impart certainty, consistency and uniformity to administration of justice and to secure it against arbitrariness, errors of individual judgment, and mala fides. Over a period of time this development of codes and rules led to the evolution of what is called "Jurisprudence of Conception" a system of logical deduction from fixed premises."
11. That is not the end of the matter. In order to do complete justice and to secure the cause of justice between a man and man and in order to keep a vigil over the acts of the subordinate Courts High Court is invested with supervisory jurisdiction under Article 203 of the Constitution. The fundamental object of supervision is to keep the administration of justice pure and transparent and for that purpose the High Court can while exercising supervisory powers correct the failures, faults or dereliction of duty, laches, defects in jurisdiction, denial of justice, bias or disability of the Court, which instances are by no means exhaustive but not by way of any relief and irrespective of whether it causes any benefit or harm to a party either suo motu or when the defect is brought to its notice. No doubt impugned orders cannot be legally set aside in the exercise of supervisory jurisdiction of the High Court, the fact remains that technicalities of law cannot be allowed to prevail muchless approved to thwart the ends of justice. In order however; to suitably compensate the respondent No.3 for being dragged to litigation for unusually longer period it would serve the ends of justice if appropriate costs are awarded to him.
12. For the facts and circumstances, discussed above these petitions are allowed and the impugned orders are declared to be illegal, unjust, harsh and bad in law. Accordingly the suits brought by the petitioner shall stand restored subject to payment of Rs.1,000 in each suit to the respondent within 30 days. Looking to the long time consumed in the decision of the suits learned trial Court would take steps for expeditious decision on merits and if need be to proceed with the trial on day-to-day basis. There shall be no order as to costs.