SALIMA BEGUM Versus MST. SARDARAN BIBI

1. SAIDU ZZAMA N SIDDIQUI, J: --The petitioners are seeking leave to appeal against the judgment of Lahore High Court dated 10-11-1993 whereby the learned Judge in Chamber accepted Regular Second Appeal No.494 of 1972 filed by the respondents and after setting aside the judgment and decree of learned Additional District Judge, Gujranwala dated 11-11-1971, restored the judgment and decree passed by the trial Court on 26-6-1969 in the case.

2. The relevant facts of the case, in brief, are that the respondents instituted a pre-emption suit for possession of 17 Kanals and 3-1/2 Marlas of land at Mauzx Ferozewala, Tehsil and District Gujranwala which was sold to the petitioners by the vendor Inayat Ullah. The case of the petitioners is that the title of the plaint in the suit originally contained only the names of Mst. Salima Begum, Rafiqa Begum, Umtal Islam and Bushra all daughters of Muhammad Saeed, as defendants, whereas name of the other joint-vendor Mst. Rashida Begum was subsequently added/interpolated in the array of defendants in the title of the plaint without permission of the Court. On basis of the pleadings of the parties, the trial Court amongst others framed the following specific issue on the allegation that the name of Mst. Rashida Begum (defendant No.3 in that suit) was collusively inserted in the body of the plaint and, therefore, the suit was time-barred as well as bad on account of partial exercise of the right of pre-emption:--,

3. Whether Mst. Rashida Begum, the defendant No.3 was collusively inserted in the plaint, as such after filing of the plaint and as such the plaintiffs suit is time-barred as well as for partial pre emption? OPD "

4. Before evidence could be recorded on the issues framed in the suit, the petitioners filed an application before the trial Court for shifting the onus of the above issue on plaintiffs instead of placing it on the defendants as indicated in the issue. The trial Court, however, rejected this application on 20-3-1968. The revision application filed against the order of Civil Judge rejecting the application of the petitioners to shift the onus of issue on plaintiffs, before the High Court, also failed. After recording evidence of the parties the trial Court came to the conclusion that although there was an insertion of the name of Mst. Rashida Begum as defendant No3 in the title of plaint but this insertion was not sufficient to prove that there was any interpolation or unauthorised insertion of the name of Rashida Begum as alleged by the petitioners. The other issues in the suit were also decided in favour of the respondent/pre-emptor and accordingly the suit for pre-emption . was decreed on payment of Rs.5,000. The respondents had already deposited a sum of Rs.1,000 before the Civil Judge and, therefore, they were directed to deposit the balance amount before 26-7-1969 failing which the suit was deemed to have been dismissed with costs. On appeal the Additional District Judge, Gujranwala reversed the finding of the trial Court on issue No.5 and as a result of reversal of the finding of the trial Court on issue No.5 the suit was dismissed on the ground that there was partial exercise of right of pre-emption and that on account of subsequent insertion of name of Mst. Rashida Begum the suit was also time-barred. The judgment and decree of the first appellate Court was, however, reversed in the second appeal by a learned Judge in chamber of the High Court and the decree of trial Court has been restored.

5. In seeking leave to appeal, the learned counsel for the petitioners contended that the reversal of the findings of the first appellate Court on issue No.5 by the High Court was not justified as the name of Mst. Rashida Begum was added as a defendant in the suit subsequently in order to defeat the objection of the petitioners that the suit instituted by respondents was liable to be defeated both on ground of limitation as well as on ground that the respondent had partially exercised right of pre-emption in respect of the land sold to the petitioners. It is contended by the learned counsel for the petitioners that the learned Judge in chambers having observed: "Record did not sufficiently exclude a possibility of a later addition of the name of Mst. Rashida Begum in the cause title of the plaint" should have dismissed the appeal and held that the suit instituted by respondent was time-barred as well as bad for exercise of partial right of pre-emption. The learned counsel relied on the provisions of the Order 7, Rule 1, C.P.C. to contend that according to these provisions the name and description of residence of plaintiff and defendant must appear in the title of the plaint. It is also contended by the learned counsel that the omission of name, description of place of residence of defendant and the plaintiff in the title of plaint is fatal as the provisions of Order 7, Rule 1, C.P.C are mandatory and such. omission would render the suit liable to be dismissed for non-compliance of the provisions of Order 7, Rule 1, C.P.C. The learned counsel also referred to the form of plaint given in the schedule of the Code of Civil Procedure and contended that according to the forms prescribed in the schedule, the names of plaintiffs and defendants should appear in the title of the plaint.

6. It' is true that Order 7, Rule 1, C.P.C. specifically provides that the plaint shall contain the name of the Court in which the suit is preferred, the name and description of residence of plaintiff and name and description of defendant so far they may be ascertained, and where plaintiff or defendant is a minor or the person of unsound mind, a statement to that effect must also appear in the plaint. Besides these preliminaries, the plaint must also contain the facts constituting cause of action and when it arose, the fact showing that the Court has jurisdiction in the case, the relief which the plaintiff claimed, a statement about valuation of the suit for purposes of court-fee and jurisdiction and where the plaintiff allowed a set-off or relinquished a portion of his claim, the amount so allowed or relinquished. From the above provisions, it is, quite clear that while examining the non-compliance of the provisions of Order VII, Rule 1, C.P.C., the Court is to consider the contents of the plaint in the suit as a whole. It may be mentioned here, that no consequences are provided for non-compliance of the provisions of Order VII, Rule 1, C.P.C. It is well-settled that all rules of procedure are meant to promote the cause of justice and therefore, they cannot be allowed to be used as an engine of oppression against a party to the suit. The Courts do not favour non-suiting of parties on mere technicalities and always prefer decision on merits.

7. In the present case, even if it is assumed that the name of Mst. Rashida Begum was not mentioned originally in the plaint as contended by the petitioners, it would not make any difference in the present case as it is not disputed by the petitioners that in para. 1 of the plaint the names of all the five defendants were mentioned as defendants in the suit. Pira. 1 of the plaint in the suit reads as follows:--

8. It is, therefore, quite clear from reading of the above assertions in para. 1 and in the rest of the plaint that the claim of the plaintiff was against all the five defendants and therefore, the trial Court as well as the learned Judge in chamber, rightly reached the conclusion that in the circumstances of the case, it was not possible to hold that the suit against Mst. Rashida Begum was time barred or that there was partial exercise of right of pre-emption by the respondents in respect of pre-empted land. No case for interference with the judgment of High Court is made out. The petition is, accordingly, dismissed and leave is refused.

9. AA./S.937/SLeave refused.