1. This revision application is directed against the judgment/order of the 1st Additional District Judge, Shikarpur, dated 8-8-1998 dismissed the Civil Appeal No.3 of 1995 filed by the present petitioners and maintaining the order, dated 2-10-1995 in F.C. Suit No.40 of 1992 before 2nd Senior Civil Judge, Shikarpur.
2. The facts of the case are that the petitioner claims that the disputed land comprising Serial No.125 (50-37) Acres situated in Deh Mangria, Taluka Garhi Yasin, District Shikarpur, belonged to Atta Muhammad, the predecessor-in-interest of the respondents Nos.1 to 7 to the extent of 0-25 paisas share while the remaining 0-75 paisas share in it jointly belonged to Muhammad Hassan and his brothers and their mother and also Mst. Umed Bibi and her son Ghulam Rasool. On 22-1-1981 the said Atta Muhammad and Muhammad Hassan and others entered into an agreement of sale in respect of the suit-land whereby they agreed to sell and the appellant agreed to purchase the same at the rate of Rs.3,000 per Acre and the total amount of consideration was fixed as Rs.1,80,000. The petitioners had to purchase the above land in equal shares. They paid Rs.75,000 to the intending sellers while the balance amount was agreed to be paid at the time of registration of sale-deed. Thereafter, Atta Muhammad expired and the respondent No.1 and other legal heirs of deceased Atta Muhammad executed a fresh agreement of sale, dated 15-2-1982 on the same terms and conditions to the extent of 0-25 Paisas share in the land having inherited by them from their ancestor Atta Muhammad. The possession of the suit-land was already with the petitioners from the year 1975-76 who were delivered its possession at the time of previous agreement of sale.
3. It is further submitted that the other joint owners namely Muhammad Hassan and others sold out their 0-75 Paisas share in the land to the petitioners through statement of sale, dated 28-2-1982 before Mukhtiarkar Garhi Yasin. The respondents were avoiding to honour and abide by the agreement of sale and to execute the registered sale-deed in favour of the petitions in respect of their 0-25 Paisas share in the land hence the petitioners filed the suit for specific performance of contract against them on 9-6-1985. During the pendency of the suit the respondent No.1 Muhammad Hanif died his legal heirs were brought on record. One Mughal Mangrio claiming to be attorney of respondent No.1 Muhammad Hanif filed written statement in the Court when executant Muhammad Hanif had already expired. Moreover, the respondent No.1(ii) was minor son of respondent No.1 and could not contest the suit except through his guardian. Hence the written statement filed by the alleged attorney Mughal on behalf of all the respondents had no legal sanctity. After receipt of written statement learned trial Court framed the issues on 26-6-1992 whereafter the suit was fixed for evidence of plaintiff side. Then the above suit was transferred from the Court of 1st Senior Civil Judge, Shikarpur to IInd Senior Civil Judge, Shikarpur. The petitioner No.1 was holding general power of attorney on behalf of other petitioners and, therefore, he had been appearing and pursuing the above civil suit. A few adjournments were obtained for leading evidence of the plaintiffs side. On 4-4-1994 when the suit was fixed for evidence, the Advocate for the petitioners had gone to attend the Court of learned Additional District Judge, Khanewal (Punjab) in connection with one Civil Appeal and the petitioner No.1 had also fallen ill hence neither the Advocate for the petitioners nor the petitioner No.1 could attend the Court of IInd Senior Civil Judge, Shikarpur, with the result that the above civil suit was dismissed for non-prosecution.
4. On 2-5-1995 an application under Order 9, Rule 9, C.P.C. was moved for restoration of suit but the same was dismissed by the trial Court vide order, dated 2-10-1995 against which the appeal was preferred in the Court of learned District Judge, Shikarpur on 26-10-1995 and after being transferred was decided vide judgment, dated 8-8-1998, against which the present petition is filed.
5. Heard the Advocates for both the parties. Learned Advocate for the petitioner stated that on 4-4- 1994 the case was fixed for plaintiff/petitioner's evidence due to certain illness of the petitioner who was pursuing the case and their Advocate was out of station as on that day he was appearing in a case at Khanewal. The contention of the learned Advocate is that the application was dismissed in the appeal and in spite of sufficient cause being shown for the absence being neither deliberate nor wilful; the Courts acted with material irregularity and the jurisdiction has been exercised illegally by denying the petitioner the chance of fair trial on the basis of mere technicalities in support of his arguments, the learned Advocate placed reliance on the reported cases of Moosa Khan v. Abdul Haque 1993 SCM R 1304, Phul Shah v. Muhammad Hussain and 10 others PLD 1991 SC 1051, 1990 CLC 1439, Zakirullah Khan and others v. Faizullah Khan and others 1999 SCM R 971, Dummar Coal Company v. Akbar Khan 1986 CLC 2458 and Muhammad Saddique and 2 others' case 1993 CLC 1158.
6. Learned counsel for the respondents has vehemently opposed the petition. He argued that the suit was originally filed in the year 1985 when it was later numbered as Suit No.40 of 1992. Since 1985 no evidence is produced. Prior to this particularly 8 adjournments were allowed. The last being on 4-4- 1994 when a last chance was afforded to the petitioner to produce. He further argued that there were four plaintiffs and none of the other 3 could have appeared before the Court. The medical certificate was produced later and not on the date of hearing.
7. Not only at the trial stage, but even at the appeal stage, the petitioner took 5 adjournments for deposit of process fee alone. Learned counsel argued that the scope of exercise of jurisdiction under section 115, C.P.C. in case of concurrent finding of fact are in his favour.
8. Reliance is placed on the cases of Muhammad Ramzan v. The Director, Military Land Cantonment, Rawalpindi and another 1986 CLC 245, Ghulam Rasool and others v. Karim Bakhsh and others 1990 CLC 1439, Zakirullah Khan v. Faizullah Khan and others PLD 1999 SC 971 and Abdul Hamid Ismail v.
9. Messrs Abdul Rehman Abdul Ghani PLD 1959 Kar. 376 on the point of negligent conduct of the parties. Material irregularity, sufficient cause, gross negligence, conduct of party and validity of none appearance of Advocates as sufficient ground.
10. In the case of Moosa Khan v. Abdul Haq the question raised before the Honourable Supreme Court was of limitation for the purpose of filing of application wherein Court held that it is one of the cardinal principles that so long as substantial justice can be done and there is no serious technical or legal impediment, the decision of controversies on merits stands at a much higher level than the disposal on the basis of legal technicalities and technical bars. In the case of Syed Phul Shah v.2 Muhammad Hussain and 10 others, it has been observed by the Honourable Supreme Court as under:-- "Even a winning party feels embarrassed and sometime guilty as well, if it has no case under the dictates of justice, but succeeds merely on account of technical failure of the other side. It is so because justice in such a situation does not even appear to have been done. This appearance of justice in Islam is not only for lawyers and intellectuals say in foreign lands, they include people of Pakistan in general--the litigant parties being in the forefront.
11. It is also a well-known principle in Islamic justice, that one who succeeds in a litigation unjustly must nor retain the benefit. It has been equated with burning charcoal in one's pocket, which, burns and eats away the winner's belongings including the retaining pocket also. Thus, while trying our best to do justice in accordance with the law, the principles in our own jurisprudence governing just dispensation shall have to be kept in view. In other words while adhering to the principle, justice in accordance with law, we will have to keep in mind that it is the birth right of every citizen in an Islamic State to seek and obtain justice. In this exercise of keeping balance between the undiluted justice and justice only in accordance with law, the general directional in Islam come to the aid when one exerts."
12. Learned counsel on the strength of above authorities argued that justice cannot be sacrificed as the altar of technicalities. He also stated that the petitioner will not seek any adjournment as it is in the interest of justice and fairplay that the matter be decided on merits rather than shuttling out the petitioners on technical grounds and that, the case may be decided on facts yet to be proved in evidence.
13. In the case of Zakirullah Khan v. Faizullah Khan 1999 SCM R 971 the Honourable Supreme Court has held as under:-- "No exception can be taken to the above view of the High Court that in this case where the High Court was seized of the matter in the revision. petition filed by the appellants, the High Court had the jurisdiction under section 115, C.P.C. to pass such orders in the case as it thought fit to modify the judgment of the lower Court to correct any error of jurisdiction or where the lower Court, had in the exercise of its jurisdiction acted illegally or material irregularity."
14. The case of Dummar Coal Company v. Akbar Khan 1986 CLC 2458, is a case of repeated absence of plaintiff on a number of dates of hearing which is not attracted to the facts of present case where the absence of a single date is also supported by medical certificate likewise in the case of Ghulam Rasool and others v. Karim Bukhsh and others. The powers of High Court have been pointed out by the learned counsel as specified under section 115, C.P.C. which are not disputed.
15. In the case of Muhammad Sadique and 2 others v. Faqir Muhammad and another 1993 CLC 1158, the Lahore High Court observed as under:-- "The justice has to be meted out to the litigants, irrespective of their failing to properly pursue their causes, and technicalities have to be avoided unless it is essential to comply with them on grounds of public policy. The procedure is provided by C.P.C. to help and not thwart the grant to the people their rights. Their Lordships of Supreme Court in Khurshid Ali's case PLD 1992 SC 822 have laid down- - It is incorrect to think now under an Islamic Dispensation that the Courts are only to sit and watch as to who commits a mistake, and who does not commit a mistake, from amongst the contesting litigants, and one who commits mistake in procedural matters should be deprived of the right claimed; even if he is entitled to it--'
16. The purpose of adjudication of a lis is to reach the truth and to see that right claimed, if found due is acknowledged and awarded to the suitor. A dishonest litigant, winning a lis, only on technical pleas, can neither live without pangs of conscience in this world not rest in peace in the life hereafter. In my view, it is his obligation, rather, to point out before the Court the weakness of his case rather than hide it, irrespective of the fact that opponent had failed to plead the same.
17. Likewise, it is the bounden duty of the Courts to discourage dishonest litigation and in exercise of the powers conferred upon them by law to take suitable measures/steps in the cases so that the dishonest litigant is denied the relief."
18. In the case of Khurshid Ali and 6 others v. Shah Nazar PLD 1992 SC 822, it was held as under:-- "The error having been committed by the trial Court in this case in not summoning the original register and other material evidence for just decision of the case, there is no alternative but to allow this appeal and remand the case to the trial Court for fresh decision. The application made by the appellants for summoning the record including the register is allowed. The said material shall be requisitioned and produced in the Court as soon as possible. The parties shall be afforded a further opportunity to adduce additional evidence, if necessary. There shall be no order as to costs."
19. In view of the above, it is maintained that the petitioners be afforded an opportunity for the decision of the case on merits after recording the evidence in the interest of justice as observed by the Honourable Supreme Court. Refusal to allow them to produce their evidence would not only amount to shutting out the evidence and denial of justice on technical grounds. Accordingly, this petition is allowed as prayed and the judgment and decree passed by learned 1st Additional Sessions Judge, Shikarpur dismissed. Civil Appeal No.3 of 1995 vide his order, dated 8-8-1998, is hereby set aside but with no order as to costs.