One Ghulam Muhammad brought a suit for a declaration to the effect that he was the owner in possession of the land in dispute on the basis of a sale from to one Rasoolan Begum arrayed as defendant No,1 through her attorney named Taj Muhammad vide Mutation No,557 which was attested on 30-3-1981 but was subsequently cancelled without there being any good reason and without summoning him and new Mutation No,767 was instead sanctioned in favour of defendant No,4 named Rab Nawaz Khan, predecessor-in-interest of the present petitioners and the same was void and inoperative as against his rights. This suit was hotly contested and as many as six issues were framed on the basis of the pleadings of the party's where after the case was fixed for evidence. On 18-11-1987, however, nobody turned up on behalf of the contesting defendants and after proceeding against them ex parte the learned Civil Judge, then seized of the matter recorded the evidence of the plaintiff and on the basis thereof proceeded to give his findings on the issues on that very date. He found issue No,5 in favour of the plaintiff on the basis of the evidence recorded by him, consisting of as many as seven witnesses (P.Ws.). Issues Nos.1 to 4 were, however, answered against the defendants there being no evidence to substantiate them. He, therefore, decreed the suit ex parte.
2. On that very date i,e, on 18-11-1987 the present petitioners moved an application for setting aside this ex parte decree alleging therein that Sultan Bibi being the widow of Rab Nawaz Khan defendant No,4, could not attend the Court in time and her counsel Syed Azhar Abbas Naqvi, Advocate was then on his legs before the District Judge, Mianwali addressing arguments in appeal "Hayat v. Ramzan". It was claimed further that when she contacted her counsel at about 12-00 noon she came to know that the suit had since been decreed after their having been proceeded against ex parte and recording of ex parte evidence. It was also urged in this application that the dispute related to agricultural land measuring 56, Kanals which her deceased husband had purchased for a sum of Rs,50,000 and in case the ex parte decree was not set aside she would suffer irreparable loss.
3. A reply of this application was submitted by the respondent/plaintiff on 25-1-1988 and the parties were then put to the following issues on 4-2-1988:--
(1) Whether there are sufficient reasons to set aside ex parte decree?
(2) Relief.
4. One Sher Muhammad Khan appeared as the only witness for the applicants on 20-12-1988. He stated inter alia that Syed Azhar Abbas Naqvi, Advocate, counsel for the petitioners was busy before the District Courts when the case was called and decreed ex pane and that the heirs of Rab Nawaz including Sultan Bibi had not put in appearance on that date, she being a Pardanashin lady.
5. The case was then adjourned to 14-1-1989 for the evidence of the respondent/plaintiff. It is pertinent to note that a large number of adjournments were allowed to the respondent for producing his evidence. Certain dates had to be given due to the non-availability of the Presiding Officer also and it was finally on 23-6-1990 which date was fixed for the evidence of Ghulam Muhammad respondent that this application was also dismissed for non-prosecution. Another application for the restoration of the application for restoration of suit had, therefore, to be submitted by Mst. Sultan Bibi widow and other legal heirs of Rab Nawaz Khan deceased/defendant No,4. Meanwhile, Ghulam Muhammad also died and a reply was, therefore, submitted by his legal heirs. The parties were then put to the following issues:--
(1) Whether the petitioners have sufficient ground for restoration of the petition dismissed on 23-6- 1990?
(2) Relief.
6. Petitioners again examined Sher Muhammad A.W.1 while Muhammad Munir one of the respondents appeared as R.W. This second application was dismissed by the learned Civil Judge 1st Class, Mianwali on 6-12-1990 mainly on the ground that it was hopelessly barred by time and that the conduct of the petitioners showed that they were least interested in the proceedings.
According to him this second application was filed on 17-6-1991 while the earlier application had been dismissed for non-prosecution on 26-6-1990.
7. Petitioners preferred an appeal against this order which was disposed of by the Additional District Judge, Mianwali on 3-2-1994. It was contended before him that the learned trial Court had misconceived the facts and that the application for restoration of the earlier application was filed on 9-7-1990 and not on 17-6-1991 and the same was, therefore, not barred by time. The learned counsel for the respondents could not controvert this argument on the factual side but added that the evidence on record did not justify the restoration of the application dismissed in default, for setting aside the ex parte decree. The learned Additional District Judge inter alia observed that Sher Muhammad the only A.W., who claimed himself to be the attorney of the heirs of Rab Nawaz failed to produce the same and also to satisfactorily explain the reasons for his non-appearance which prevented him or his counsel from pursuing the application. He, therefore, dismissed the appeal but left the parties to bear their own costs.
8. Feeling aggrieved Mst. Sultan Bibi and others filed this revision petition which was admitted to regular hearing on 19-3-1994 in view of the contention of the learned counsel for the revision petitioners that law favours adjudication on merits and "that the order of dismissal of application filed by the petitioners majority of whom were ladies and minors was illegal and based on misreading of evidence and misconceived notion about the concept of sufficiency of cause of action".
9. I have carefully gone through the material available on record and heard the learned counsel for the parties. It is really upsetting to note that an application which was moved for restoration of the suit on the date on which the ex parte evidence of the plaintiff was recorded and the suit was decreed i,e, 18-11-1987 was allowed to proceed for years together. The evidence of the petitioners consisting of the solitary statement of Sher Muhammad was recorded as late as on 20-12-1988 and the case remained pending for the evidence of the plaintiffs/respondents throughout the year 1989 and also about six months of the year 1990. I am at a loss to understand as to how the petitioners could be supposed to remain before the Court on each and every date and particularly on the date which was only fixed for recording the evidence of the respondents. I find that on all the earlier dates the learned counsel for the parties remained available and were marked present. I think if the learned counsel for the petitioners was not available on 23-6-1990 the learned Civil Judge could very easily proceed with recording of the evidence of the respondents and dispose of the application on its merits or still adjourn it to some other date awaiting the appearance of the applicants and their counsel. It is also pertinent to note that the second application was not moved beyond time and the observation of the learned Civil Judge in this behalf was misconceived. The observation of the learned Additional District Judge that Sher Muhammad failed to place on record or to produce any power of attorney is also misconceived. A certified copy of the general power of attorney on behalf of Mst. Sultan Bibi widow, Nusrat Jabeen, Farhat Jabeen, Ishrat Jabeen, Riffat Jabeen, Shamim Akhtar and Nasim Akhtar daughters of Rab Nawaz Khan in favour of Sher Muhammad Khan is available at pages 60 to 63. Another special power of attorney, dated 28-11- 1988 was executed by them in favour of Sher Muhammad Khan in respect of the instant case only and certified copy of the same is available at pages 58-59. It is not understandable as to how these documents skipped the notice of the learned Additional District Judge.
10. It was claimed by Sher Muhammad in his earlier statement that he was the Mukhtar-e-Khas of the petitioners and that the counsel for the petitioners Syed Azhar Abbas Naqvi could not appear before the Court at the time when the case was called being busy before the District Judge. This statement should have been considered sufficient for setting aside the ex parte decree specially because the application was moved on that very date but as the luck would have it, it was dismissed again for non-prosecution on 23-6-1990. In his subsequent statement recorded on 28- 3-1992 Sher Muhammad Khan claimed that he was in some service at Lahore and having reached late from Lahore he was prevented from attending the Court at the time when the second application was dismissed. He also maintained that since the matter involved rights of the parties the application should be decided on merits and that the absence was not wilful or intentional. This again was a sufficient cause for restoration of the application. As I have already observed above the date was obviously not fixed for the appearance of the applicants or their Mukhtar-e-Khas and in view of the enormous case-law on the point the technicalities could not be allowed to defeat the ends of justice. Mr. Justice A.R. Cornelius, the then learned Chief Justice made the following observations in Imtiaz Ahmad v. Ghulam and 2 others PLD 1963 SC 382:-- "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 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. 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 Rives to every person what is his."
11. Similarly in Manager, Jammu and Kashmir State Property in Pakistan v. Khuda Yar and another PLD 1975 SC 678 it was laid down 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 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 modern society and the conflict between equity and law in judicial history."
12. For all these reasons I am of the convinced opinion that both the Courts below acted in the exercise of their jurisdiction illegally and with material irregularity on account of non-reading and misreading of evidence. The law obviously favors adjudication of cases on merits. I, therefore, accept this revision petition, set aside both the orders and decrees of the lower Courts and remand the case to the learned Civil Judge for decision of the suit on its merits. It is made clear that the ex parte decree stands set aside. The petitioners shall, however, pay a sum of Rs,500 as special costs to the respondents.
13. The case be sent to the learned District Judge, Mianwali expeditiously with a direction to entrust the suit to a Court of a competent jurisdiction for disposal according to law within a period of six months from the date on which a copy of this judgment is received by the Court to which this case is entrusted.