1. ' TANVIR AHMED KHAN, J.---Leave to appeal is sought against the judgment dated 19-4-2002 passed by a learned Single Judge of the Lahore High Court, Rawalpindi Bench, Rawalpindi, whereby Civil Revision No,565 of 1994 filed by the respondents was accepted and the judgments dated 30- 4-1994 and 30-7-1991 passed respectively by the learned Additional District Judge, Chakwal, and the learned Civil Judge, Chakwal, were set aside.
2. ' The facts succinctly narrated for the disposal of this petition are that respondent Maula Bakhsh purchased from Gama and Nawab land measuring 104 Kanals, 18 Marlas falling in Khasra Nos.877, 878, 879, 986, 972, 973, 856, 982 and 984 through Mutation No,1964 attested on 24-10-1972. Sarwar Noor son of Hakim Din and Muhammad Afzal son of Alam Din, predecessor-in-interest of the petitioners, filed a suit for possession through pre-emption on 24-10-1973. The same was resisted by the respondents. The learned Civil Judge, 1st Class, Chakwal, vide his judgment dated 17-12-1974 decreed the suit to the extent of 113/120 share in Khasra No,866 in favour of Sarwar Noor, other pre- emptor, while in respect of Muhammad Afzal, predecessor-in-interest of the petitioners, the same was also decreed to the extent of 113/120 share in Khasra Nos.878, 986, 972, 973 and 856 for Rs,2,835.
3. The suit in respect of Khasra Nos.877, 879, 982 and 984 was, however, dismissed. A decree sheet was prepared and the aforesaid determination finds mention therein. However, during the course of implementation of the decree, Mutation No,2162 was sanctioned by the Revenue Officer on 14-6- 1976 wherein all the aforesaid nine Khasra Nos. Were included inclusive of Khasra Nos.877, 879, 982 and 984 respecting which the suit for pre-emption filed by Muhammad Mal, predecessor-in- interest of the petitioners, was dismissed.
4. ' The respondents filed a declaratory suit on 26-10-1980 taking exception to the aforementioned mutation as having been sanctioned against facts and law. The suit was contested by the predecessor-in-interest of the petitioners and the plaint was rejected under Order VII, Rule 11, C.P.C.
5. By the learned Civil Judge, Chakwal, through his order darted 23-5-1981. The respondents filed Appeal No,260 of 1981 which was dismissed by the District Judge, Jehlum, on 10-12-1981.
6. ' The respondents again filed a declaratory suit with permanent injunction taking exception to Mutation No,2162 sanctioned on 14-6-1976 as having been sanctioned against the pre-emption decree with permanent injunction praying that the defendants/petitioners be restrained to interfere in their possession over the suit land. The said suit was resisted by the petitioners and out of contradictory pleadings of the parties, issues were framed, the parties led their respective evidence and the learned Civil Judge, Chakwal, through his judgment dated 30-7-1991 dismissed the suit as being barred by limitation and respondent was held not entitled to the declaration. The learned trial Judge however while dismissing the suit also held that the disputed Khasra numbers were never decreed in favour of the predecessor-in-interest of the petitioners. He held that Mutation No,2162 sanctioned on 14-6-1976 had been void and ineffective against the rights of the respondents/plaintiffs. The respondents' suit was, however, dismissed on two grounds namely non- maintainability and the bar of limitation. The respondents filed an appeal which was dismissed by the learned Additional District Judge, Chakwal, through his judgment dated 23-4-1994. The respondents then preferred aforesaid civil revision before the Lahore High Court at Rawalpindi Bench, which has been accepted by a learned Single Judge through his judgment dated 19-4- 2002, impugned herein. Hence, this petition for leave to appeal.
7. ' It is argued by the learned counsel for the petitioners that separate suit filed by the respondent was not maintainable in view of section 47 of the C.P.C. As the questions involved therein should have been taken at the time of execution of the decree before the Executing Court. A declaratory suit simpliciter in absence of relief of possession of the suit-land was also not maintainable, it is argued. A further argument has been advanced by him that the suit of the respondents was hit by limitation.
8. ' Learned counsel appearing for the respondents has supported the impugned judgment.
9. ' We have considered the contentions raised by the learned counsel for the parties and have gone through the documents placed on record with their assistance. It may be stated that the learned counsel appearing for the petitioners at the very outset has admitted that the disputed Khasra Nos.
10. Were not included in the pre-emption decree and he mainly argued his case on legal plane although on moral ground he has got no case. Admittedly, the disputed Khsara Nos. Were not included in the pre-emption decree passed on 17-12-1974. The Revenue Staff for the reasons best known to them sanctioned Mutation No,2162 on 14-6-1976 and included Khasra Nos.877, 879, 982 and 984 respecting which pre-emption plea raised by the predecessor-in-interest of the petitioners was dismissed. We have also noticed that the trial Judge while dismissing the suit on 30-7-1991 held that the respondent was not in possession of the disputed land and that the decree was never passed in favour of the predecessor-in-interest of the petitioners Muhammad Afzal qua the disputed Khasra Nos. However, as already stated, the declaratory suit was held not maintainable without seeking further relief of possession. The learned Additional District Judge, Chakwal, also fell into an error in dismissing the appeal filed by the respondent without appreciating the true aspects of the case. It is reflected from the perusal of the documents on record that disputed Khasra Nos. Were got included by the petitioners' predecessor-in-interest with collusion of the Revenue Staff in a mala fide manner and usurped the property belonging to the respondent. The respondent was simply knocked out and deprived of his land on technical grounds. If a party seeking declaration has failed to claim consequential relief, he should not have been non-suited on technical grounds. It has been held time and again by this Court that technicalities shall not create hurdles in the way of substantial justice. Rules and regulations are made to foster the cause of justice and they are not to be interpreted to thwart the same. A heavy duty is cast upon the Courts to do substantial justice and not to deny the same on mere technicalities. Reference in this regard is made to the case of Ch. Akbar Ali v. Secretary, Ministry of Defence, Rawalpindi and another (1991 SCM R 2114) where it was held as under:-- ' "In the exercise to, do justice in accordance with law the Courts and forums of law cannot sit as mere spectators as if at a high pedestal, only to watch who out of two quarreling parties wins. See the judgment of this Court in the case of Muhammad Azam v. Muhammad Iqbal and others (PLD 1984 SC 95 at page 132) and Civil Appeal No,789 of 1990, decided on 26-6-1991 (Syed Phul Shah v.
11. Muhammad Hussain PLD 1991 SC 1051). On the other hand deep understanding and keen observance of proceedings is a sine qua non for doing justice in the Constitutional set up of Pakistan. Those Rules of adversary system based merely on technicalities not reaching the depth of the matter, are now a luxury of the past. Neither of the parties can be permitted to trap an improperly defended or an undefended or an unsuspecting adversary by means of technicalities when the demand of justice is clearly seen even through a perfect trap. It will make no difference if the litigant parties are citizens high or low and / or is Government or a State institution or functionary acting as such."
12. Reference is also made to the case of Manager, Jammu and Kashmir, State Property in Pakistan v.
13. Khuda Yar and another (PLD 1975 SC 678) wherein the learned Judges of this Court held that mere technicalities, unless offering insurmountable hurdles, should not be allowed to defeat the ends of justice. The learned Judges further quoted the following passage from an earlier illuminating judgment of this Court rendered by Kaikaus, J. In Imtiaz Ahmad v. Ghulam Ali (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 ground 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 defect. Any system which by giving effect to the form and not to the substance defects substantive rights is defective to that extent. The ideal must always be a system that gives to every person what is his."
14. ' The denial of relief to a party simply on the ground that consequential relief was not claimed would, in no circumstances, advance the cause of justice.
15. ' It has been held time and again that the natural result of declaration would be that consequential relief has to be given by the Court even if it is not claimed. The trial Court in such like circumstances may call upon a party to amend the plaint to that extent and direct him to pay court-fee, if any Reliance in this respect is placed upon the case of Ahmad Din v. Muhammad Shafi and others (PLD 1971 SC 762) where it was observed as under:-- ' "The contention of the learned counsel for the appellant that the suit could not fail merely by reason of the fact that the consequential relief by way of possession had not been claimed is not altogether without substance. If his suit was otherwise maintainable and he was otherwise entitled to the relief it was open to the Courts to allow him to amend the plain. By adding a prayer for possession and paying the appropriate ad valorem court-fees and then to grant him relief even though he had not specifically asked for it."
16. ' The Judges while dispensing justice are duty bound to apply the provisions of law in their true perspective and the same cannot be avoided simply on the ground that such provisions were not brought to their notice by the parties. We are fortified in this regard from an earlier judgment of this Court in the case of Board of Intermediate and Secondary Education, Lahore through its Chairman and another v. Mst. Salma Afroze and 2 others (PLD 1992 SC 263) wherein it was held as under:-- "18. The learned counsel who represented the respondents in the High Court by not bringing to the notice of the High Court the law laid down by this Court on the subject did not render good service to their clients. Besides, it has been laid down by this Court in Muhammad Sarwar v. The State PLD 1969 SC 278 that a Judge must know the adage that a Judge must wear all the laws of the country on the sleeve of his robe and failure of the counsel to properly advise him is not a complete excuse in the matter."
17. Apart from the above there is another aspect of this case which cannot be lightly ignored. The present respondents have suffered during all this time due to the failure of the Revenue Department to implement the decree in its true perspective. They for the reasons best known to them in collusion with the petitioners got incorporated those Khasra numbers which were never decreed by the trial Court. All the forums below have accepted this mistake. If this be so, why the respondents should suffer for the wrong acts of the functionaries/departments. It has been held in The State v. Asif Adil and others (1997 SCM R 209) that a party should not be made to suffer on account of an act or omission on the part of the Court or other State functionaries. In the case in hand the petitioners successfully kept the respondents out of their property on technical grounds wrongly created by the functionaries of the Revenue Department to which they had no right either morally or legally.
18. ' Resultantly, for what has been stated above, the learned Single Judge of the Lahore High Court through his impugned judgment has advanced the cause of justice to which no exception can be taken by this Court on any ground. The instant petition being devoid of any merit and force is hereby dismissed and leave declined.