RAB NAWAZ and others vs NOOR MUHAMMAD and others
This matter concerns a petition for leave to appeal against a judgment of the Peshawar High Court in civil revision proceedings. The petitioners challenge the High Court's decision to non-suit them on the basis that they failed to seek the consequential relief of possession alongside a declaratory decree. The core legal questions are whether a plaintiff who pleads ownership and possession can be non-suited for failing to explicitly pray for possession, and whether such an omission constitutes a mere technical error curable by amendment of the plaint, particularly when no objection regarding the maintainability of the suit under the Specific Relief Act was raised before the trial or appellate courts. The Supreme Court, finding these contentions require further examination, granted leave to appeal to consider whether the High Court erred in its strict application of procedural requirements regarding consequential relief in declaratory suits. The principle at issue involves the extent to which procedural technicalities regarding the form of a suit can defeat substantive claims where the underlying facts are admitted or established.
- Can a plaintiff be non-suited for failing to seek the consequential relief of possession in a declaratory suit if they have pleaded ownership and possession?
- Is the omission to ask for the relief of possession in a suit a technical error that can be cured by amendment of the plaint?
- Does the failure to raise an objection regarding the maintainability of a suit under Section 42 of the Specific Relief Act before the trial or appellate courts preclude a High Court from dismissing the suit on that ground in revision?
- Section 42, Specific Relief Act 1877
ORDER
' SAIDUZZAMAN SIDDIQUI, J.---The learned counsel for the petitioners in seeking leave to appeal against the judgment of a learned Judge in Chambers of Peshawar High Court in Civil Revisions Nos.127 and 128 of 1993 has raised the following contentions:--
(1) That the learned Judge in chambers could not non-suit the plaintiffs in the above cases on the sole ground that the petitioners having failed to ask for relief of possession as a consequential relief, were not entitled to a declaratory decree when, in fact, petitioners had specifically pleaded in suits that they were the owner in possession of the land and no adverse finding was recorded by the two Courts below while decreeing the suits.
(2) It is also contended that, in any case, the omission on the part of petitioners to ask for relief of possession was a technical error and in view of the evidence in the case, the petitioners could be allowed the relief of possession on the basis of admitted facts in the case through amendment of the plaint even at the stage while the learned Judge was considering the revision application especially in the circumstances of the case when no specific objection was raised before the Trial Court or before the first Appellate Court that the suits as framed were not maintainable under section 42 of the Specific Relief Act.
2. The above contentions raised by the learned counsel require further examination and we, accordingly, grant leave to appeal to consider the same.