' This judgment shall dispose of the aforesaid two Revision Applications as common questions of fact and law are involved in both of them.
2. Revision Application No,103/1992 is directed against the judgment and decree dated 23-2-1992 passed by learned HI-Additional District Judge, Karachi-Central dismissing Civil Appeal No,34 of 1990 and upholding the dismissal of Suit No, 1951/1978 renumbered as Suit No, 894/1988 brought by the applicant against respondents No,1 and 2. Civil Revision No,238/1993 is however directed against an order dated 13-11-1993 passed in Suit No,237 of 1988 dismissing two applications moved by the applicant under Order VII, rule 11, C.P.C. And section 10, C.P.C. Respectively seeking the rejection of the plaint and in the alternate stay of the Suit No,237/1988 filed by respondent Mst.
Abrar Jehan Begum.
3. Dispute between the parties revolves around auction proceedings in respect of House No, R-450, Block-9, situated in Federal 'B' Area, Karachi. This house was mortgaged by respondent Abrar Jehan Begum with House Building Finance Corporation in the sum of Rs,8,000 which was not redeemed.
' In order to recover their dues and the interest accruing thereon House Building Finance Corporation resorted to auction proceedings through City Deputy Collector, Karachi and in the public auction held on 19-7-1967 applicant being the highest bidder purchased the house in question for a bid of Rs,9,300 and paid 1/4th of the bid i,e, Rs,2,500 to the House Building Finance Corporation the same day. She deposited balance amount of Rs,6,800 with City Deputy Collector, Karachi on 3-8-1967 by way of a pay order.
4. On 17-7-1967 respondent Abrar Jehan Begum filed Suit No,1357/1967 for declaration and injunction against the Collector Karachi, City Deputy Collector, Karachi and House Building Finance Corporation seeking a declaration of her ownership in respect of the property in dispute and that it was never mortgaged with House Building Finance. Corporation and a permanent injunction against the House Building Finance Corporation restraining them from effecting the recovery of the loan amount against this respondent. This suit on contest was dismissed by 1st Senior Civil Judge, Karachi on 9th February, 1977. This judgment and decree was challenged by her in Civil Appeal No,129/1977 which was dismissed by an Additional District Judge, Karachi on 7-9-1982 for non- prosecution. No efforts were made by this respondent for restoration of the appeal with the consequence that judgment and decree attained finality.
5. Auction proceedings in respect of the property in dispute were confirmed in favour of the applicant vide letter dated 10-1-1978 by City Deputy Collector, Karachi, but the House Building Finance Corporation declined to hand over possession of the house to the applicant and in response to a legal notice replied that entire dues outstanding against the property be paid to the House Building Finance Corporation when delivery of possession would be made in her favour she being the auction-purchaser.
6. Aggrieved by this letter and action on the part of House Building Finance Corporation applicant filed Suit No,1951/1977 against the House Building Finance Corporation for a declaration and injunction . On 20-1-1981 respondent Abrar Jehan Begum was joined as party to this suit. After contest this suit was dismissed vide judgment and decree dated 22-4-1990 which were impugned in Civil Appeal No,34/1990 but without any success vide judgment dated 23-2-1992. This judgment and decree are the subject-matter of Civil Revision No,103 of 1992.
7. During the pendency of the suit filed by the applicant, Mst. Abrar Jehan Begum on 21-8-1983 filed another Suit No,3218/1983 for cancellation of auction proceedings, redemption of mortgage and injunction restraining the respondents from interfering with her title and possession. On bifurcation of Karachi judicial district this suit was renumbered as Suit No,237;1988 which has now been decreed on 6-3-1994 and Civil Appeal No,36/1994 filed by applicant is pending before 1st Additional District Judge, Karachi Central.
8. In this suit applicant Mst. Saeeda Khatoon moved two applications:
(i) Under Order VII, rule 11, C.P.C. For rejection of plaint.
(ii) Under section 10, C.P.C. For stay of the suit.
' Both the applications were contested by respondent Abrar Jehan Begum and were dismissed vide order dated 13-11-1993 which has been impugned in Civil Revision No,238/1993.
9. In view of the fact that Suit No,3218 of 1983 renumbered as Suit No,237/1988 has been finally disposed of on 6-3-1994, Civil Revision Application No,238 of 1993 is rendered infructuous as the interlocutory orders passed on the applications of Mst. Saeeda Khatoon have merged in the final judgment and Revision from these orders would be incompetent. Consequently, Revision Application No,238/1993 is dismissed as infructuous and incompetent by reason of changed circumstances.
10. At the outset, it may be observed that Syed Ansar Hussain, learned counsel for the applicant vainly argued that the trial Court acted illegally and with material irregularity by entertaining Second Suit No,3218/1993 renumbered as Suit No,237/1988 which was barred by the provisions of Order II, Rule 2 and section 11 of the Code of Civil Procedure as after the dismissal of the earlier suit subsequent suit on same cause of action was completely barred. On the face of it argument may seem to be attractive, it would suffice to say that after the final decision of the suit in which two applications under Order VII, Rule 11 and section 10, C.P.C. Respectively were moved, it is not open to the learned counsel to agitate this point after the suit was finally decreed 19 months back. With all respects for the learned counsel, he ought to have frankly conceded that the subsequent suit having been decreed against the applicant he would not press Revision Application No, 238/1993 but instead he argued the said revision application on merits which is far from propriety and professional ethics.
11. It was next contended that both the Courts below acted illegally and the impugned judgments suffer from a legal infirmity by reason of misreading of evidence while denying the relief of possession in respect of the property in suit. Learned Appellate Court in its judgment has rightly observed that Mst. Abrar Jehan Begum having redeemed the property in question from the House Building Finance Corporation and the later on receipt of arrears from her having closed her account, prayer of the applicant for a declaration was rendered infructuous whereas she had not asked for relief of possession in her suit. It is true that neither the applicant specifically prayed for vacant and physical possession of the property in question nor valued the suit for the relief of possession or paid court-fees for such relief. Since she was found to be not entitled to the declaration, in view of the changed circumstances she could not claim the consequential relief of permanent injunction.
12. It was maintained that applicant's prayer for declaration could not be said to be infructuous as the cause of action accrued in her favour on 19-7-1967 when the property in question was put to public auction and her bid being the highest was accepted. He submitted that her right to property remained suspended on account of the interim injunction passed in Suit No,1357/1967 filed by Mst.
Abrar Jehan Begum against the House Building Finance Corporation and others. Elaborating his arguments further learned counsel submitted that after the dismissal of the suit on 9-2-1997 filed by Mst. Abrar Jehan Begum cause of action in her favour was revived and accordingly applicant filed Suit No,1951/1978 on 17-7-1978. Be that as it may, after the decree in Suit No,2138/1983 on 6-3- 1994 in favour of Mst. Abrar Jehan Begum suit filed by the applicant cannot be decreed by any stretch of reasoning as the auction proceedings in her favour have been held to be illegal and without jurisdiction by a competent Court of law.
13. It is true that rights of parties must be determined as on date of suit and not on basis of rights accruing after institution of suit as held by their Lordships of the Supreme Court in Province of East Pakistan v. Nawab Hassan Askary (PLD 1971 SC 82) but in my view subsequent developments and events taking place during the pendency of a suit touching the merits thereof cannot be ignored as otherwise it may give rise to multiplicity of litigation and put the parties to immense hardships and inconceivable inconvenience. As to the legality and propriety of the decree passed in the subsequent suit filed by Mst. Abrar Jehan Begum it is not open to the applicant to challenge the vires of the judgment and decree in this revision application as the same are sub judice in Civil Appeal No,36 of 1994 before the District Court Karachi Central.
14. Lastly, it was contended that technicalities of law should not be permitted to thwart the process of justice which must be administered under all circumstances. There is no cavil with the proposition of law expounded in the case of Imtiaz Ahmed v. Ghulam All PLD 1963 SC 382 to the effect that proper place of procedure in any system of administration of justice is to help and not to 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. Any system which by giving effect to the form and not to the substance defeats substantial rights is defective to that extent. Suffice to say that suit of the applicant was not dismissed on account of mere procedural technicalities but on account of hard facts and changed circumstances which did not concern a matter of procedure but substantial rights of the parties.
15. In view of aforesaid discussion and the conclusions deduced by me it is not necessary to deal with other points raised on behalf of the respondents touching the maintainability of the suit and competency of the revision application.
16. For the above facts and reasons, I am of the considered view that both the Courts below did not commit any error of jurisdiction warranting an interference in the exercise of revisional jurisdiction of this Court, which is purely discretionary with the Court. Revision Application No,103/1992 is accordingly dismissed with no order as to costs.