Mst. BUNDI BEGUM Versus MUNSHI KHAN

TANVIR AHMED KHAN, J: --Leave to appeal is sought against the judgment dated 2-10-2003 whereby a learned Single Judge of the Lahore High Court, dismissed the .Constitutional petition filed by the petitioner. This case has got a chequered history and this very matter has come up before this Court in the second round of litigation.

2. Facts briefly which gathered from this petition are that a land measuring 39 Acres was allotted to the petitioner, her sister and her brother-respondent No. l-Munshi Khan. The latter attorned and executed a registered General Power of Attorney in favour of the husband of the sister of petitioner who in turn made a gift of land in favour of the petitioner.

3. The respondents filed a declaratory suit with consequential relief praying therein that the petitioner-defendant be restrained to interfere in his ownership rights and they should be given Qabza Malkana as consequential relief. The exception was taken to cancel Mutation No.15 dated 11-4-1960. The respondents' suit was dismissed and the learned First Appellate Court also dismissed appeal against the same. However, civil revision filed by the respondents was accepted .by a learned Single Bench of the. Lahore High Court, through judgment dated 16-1-2002. The petitioner approached this Court by filing Civil Petition No.616-L of 2002, which was dismissed through order dated 14-5-2003.

4. The decree-holder moved an application for execution before the learned Additional District Judge, Okara who entrusted the same to the learned trial. Court. The petitioner filed objection petition which was dismissed by the learned Executing Court on 2,8-6-2002, directing the Revenue Authorities to cancel Mutation No.15 dated 11-4-1960 and sanction and attest the mutation .in favour of the respondents decree- holders as per judgment of the Lahore High Court passed in Civil Revision No. 170 of 1995. The petitioner filed a civil revision against the order dated 28-6-2002 before the First Appellate Court whereby the learned Additional District Judge, Okara, through order dated 4-7-2002 suspended the operation of the aforesaid order. In the meantime Mutation No. 15 was cancelled and instead Mutation No. 1436 was sanctioned on 8-7-2002 in favour of the respondents.

5. The petitioner filed a contempt petition while the respondents filed an application for vacation of stay order earlier granted. The learned Additional District Judge through order dated 8-11-2002 held that the matter was still pending before the Supreme Court at the initiation of the petitioner in Civil Petition No.616-L of 2002. He accordingly, appointed Tehsildar Depalpur, District Okara as a receiver for management, protection, preservation, and improvement of the property and collection of rent and profit of the property.

6. The petitioner filed a Constitutional Petition bearing No.20194 of 2002 taking exception to the appointment of the receiver as there was no prayer from the respondents' side for the same. The learned Single Judge of the Lahore High. Court, through his judgment dated 13-12-2002 accepted the writ petition as according to him the preconditions, for the appointment of the receiver were not established and the prayer was only for giving the standing crops on Superdari which according to the learned -Judge could not be equated with the appointment of the receiver. Since contempt application of the petitioner was also pending, as such, the learned Single Judge set aside the order of appointment of the receiver and held that the application earlier filed by the respondent No. l on 4-11-2002 whereupon he had made grievance that since 1983 he had been deprived from the fruits of his crops. The case was remanded to the learned Additional District Judge, Okara, with the directions to decide the application afresh. This was vide judgment dated 13-12-2002. After disposal of the aforesaid writ petition of the petitioner, the scenario of the case was completely changed as this Court through judgment dated 14-5-2003 dismissed the Civil Petition No.616-L of 2002 filed by the petitioner, upholding the determination of the learned Single Judge of the Lahore High Court whereby the suit filed by the respondents was decreed. The respondents thereupon moved another application on 5-9-2003 bringing all these aspects to the notice of the learned Court and also made a prayer claiming his share of the standing crops of Maize and Rice. The learned Additional' District Judge, taking into consideration all these developments passed an order on 24-9-2003 that a commission be appointed for the equal distribution of the crops standing at the disputed land. The petitioner challenged this order through Constitutional Petition No.13683 of 2003 which has been dismissed through the impugned judgment dated 2-10-2003. Hence, this petition for leave to appeal.

7. We have considered the contentions raised by the learned counsel for the petitioner and have gone through the documents appended with this petition. The plea of the learned counsel for the petitioner that the respondents have only been given symbolic possession of the property in obedience to the decree passed in their favour, as such, they cannot claim share in the produce, at this juncture does not advance his case any further. His argument that the respondents now should proceed by adopting another remedy in getting their grievance redressed does not fit in the circumstances of the case when a suit had already been decreed in their favour. Admittedly, the respondents have got share in the property by virtue of the decree and the emphasis- of the learned counsel for the petitioner that they should now approach through other law by filing a new suit would defeat the concept of administration of justice in a blatant manner. It has been stated time and again by this Court that the technicalities unless insurmountable, shall not come into the way of the administration of justice. Reference in this regard is made to the case of Muhammad Anwar Khan v. Riaz Ahmed PLD 2002 SC 491 where it was held as under:--

"Apart from this, it is time and again stated by this Court that rules and regulations are only meant to streamline the procedure and administer the course of justice. They are not there to thwart the same. The Courts have always preferred a decision of a case on merits and technical knock-out-has always been discouraged.

In this case much of the time of the Courts has been wasted on a very trivial issue which could have been resolved simply by passing an order calling upon the petitioners-defendants to sign their written statement. Reliance in this respect is placed upon Manager, Jammu and -Kashmir State Property in Pakistan v. Khuda Yar and another PLD 1975 SC 678 where it was held that mere technicality unless offering an insurmountable hurdle, should not be allowed to defeat the ends of justice. A learned Full Bench of the Lahore High Court while, dealing with technical objection stated as under:-- .

`The proposition could hardly be disputed that the principal objection behind all legal formalities is to safeguard the paramount interest of justice. In fact while considering the 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. It cannot be denied that legal precepts were devised with a view to impart certainty, consistency and uniformity to administration of justice and to secure it against arbitrariness, errors off individual-judgment and mala fide'."

After observing this the learned Judges reproduced the following paragraph from the judgment of Imtiaz Ahmed 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.".

8. The other ground of the learned counsel that the learned Single Judge of 'the Lahore High Court who decided both the writ petitions, one by setting aside the appointment of the receiver through order dated 13-12-2002 and the other by upholding the appointment of the Commission through the impugned judgment dated 2-10-2003 are contradictory, is also not apt. In the earlier round of litigation, the learned Single Judge of the Lahore High Court, took into consideration the fact that the respondents wanted vacation of the stay order while in the subsequent writ petition tney moved another application in September, 2003 by which time as already stated the whole scenario of the case had changed. This Court dismissed the- Petition for Leave to Appeal No. 616-L of 2002 of the petitioner, upholding the determination of the High Court rendered in civil Revision No. 170.of 1995 whereby the suit of the respondents was decreed. Both the matters were totally different and the learned Single Judge of the Lahore High Court has rightly stated that such-like determination does not warrant interference by the High Court in the discretionary and equitable jurisdiction whereby the learned First Appellate Court appointed commission to make fair distribution of the crops among the parties.

9. The next argument that the suit of the respondents had already been decided and nothing was pending, as such, the learned Court was not having any power by pass any order of appointment of any commission, is also of no avail. It is reflected from record that not only the petitioner's contempt application was pending but also of respondents claiming vacation of stay order and share in the produce. It must be stated over here that the petitioner has successfully deprived the respondents from the fruits of the disputed land for the last more than two decades by adopting such-like technicalities. The suit filed by the respondents was decreed by the Lahore High Court, Lahore, in the year 1995 and till date no share of the income has been paid to them. In this regard it is apt to reproduce the determination of the Privy Council made as far back as in the year 1872 in a case titled The General Manager of the Raj Durbhunga, under the Court of Wards v. Maharajah Coomar Ramaput Singh (14 MIA 605 = 17 WR 459 = 10 BLRPC 294 - 2 Soth PCJ 575 = 3 Sar. PCJ 117 wherein it was stated that agony of the claimant starts after securing the decree. The determination is as under:- ---

"The Right - Han.. Sir James' Colvile.- These proceedings certainly illustrate what was said by Mr. Doyne and what has been often stated before, that the difficulties of a litigant in India begin when he has obtained a decree. When, whoever, the actual question which is at issue between the appellant and the respondent on this appeal is eliminated from the rest of the record, it does not appear .to their lordships to present any very great difficulty."

11. Resultantly, for what has been stated above, the instant petition being devoid of any force is hereby dismissed. Leave is refused.

M.H./B-106/S. Petition dismissed.