Syeda TAHIRA BEGUM arid anothers vs Syed AKRAM ALI and another

ORDER

1. ' TANVIR AHMED KHAN, J.---Leave to appeal is sought against the judgment dated 19-10-2001 rendered by the learned Chief Justice of the Peshawar High Court at Circuit Bench, Abbottabad, accepting Revision Petition No,12 of 1997 filed by the respondents by setting aside. The judgments dated 19-3-1995 and 26-10-1996 passed respectively by the learned Civil Judge, Abbottabd, and the learned District Judge, Kohistan Camp at Abbottabad.

2. ' Briefly stated facts of the case are that the respondents filed a suit on 15-4-1979 against petitioner No,1 Syeda Tahira Begum seeking declaration to the effect that they had purchased- Hissadari in the suit land and the defendant/petitioner No,1 be restrained from interfering in their possession. A prayer for possession was also made in case the respondents were found to be out of possession.

3. The learned Civil Judge, Abbottabad, vide his judgment dated 20-6-1987 granted a declaration and perpetual injunction to the respondents. However, their prayer for possession of the disputed land was rejected.

4. ' The respondents filed execution proceedings on 7-3-1989 which were objected to by petitioner No,1 taking exception to the same on the ground that the decree, being a declaratory one, was not capable of execution and further she, being a Pardah Nashin lady, had not interfered with the possession of the respondents. The learned Executing Court vide its order dated 2-9-1991 rejected the execution petition. The respondents filed an appeal against the above order which was accepted by the learned District Judge, Abbottabad, vide his order dated 21-3-1993 and the objection petition was remitted to the Executing Court to determine the issue if petitioner No,1/judgment-debtor has had an opportunity of obeying the decree and had wilfully failed to obey it.

5. ' After the remand the learned Executing Court vide its order dated 19-3-1995 rejected the objection petition on the ground that the property under dispute was in possession of petitioner No,2 Syed Taimoor Shah, husband of petitioner No, 1/judgment-debtor, who was not impleaded as a party in the original suit. The respondents filed an appeal against the said order which was rejected by the learned District Judge, Kohistan Camp at Abbottabad, vide his order dated 26-10-1996., The respondents preferred Civil Revision No,12 of 1997 before the Peshawar High Court at Abbottabad, which has been accepted by the learned Chief Justice through his judgment dated 19-10-2001, impugned herein. Hence, this petition for leave to appeal.

6. ' We have considered the contentions raised by the learned counsel for the petitioners and have perused the entire material placed on record. It must be stated at the very outset that the respondents purchased the disputed land measuring 3 Kanals and 8 Marlas vide Mutations Nos.3008 and 3009 attested on 13-12-1972. The petitioners/defendants claimed ownership in the joint property vide Mutation No,3912 attested on 14-1-1979. The suit was contested by petitioner No,1 Syeda Tahira Begum through her husband and attorney Syed Taimoor Shah, petitioner No,2. It was never pleaded at that juncture that the disputed property was in possession of said Syed Taimoor Shah or that he was not impleaded as a party. He hotly contested this matter and kept mum regarding his possession as stated by petitioner No,1 in her objection petition. However, in order to frustrate the decree in a mala tide manner, this plea was taken simply to thwart the execution of the decree.

7. The plea that Syed Taimoor Shah was not impleaded as a party and was not afforded an opportunity of hearing is devoid of any force in the circumstances of the present case. The purpose of impleading a person as a party in a case is that he shall be provided with an opportunity of hearing in the matter. In the case in hand, as reflected from the documents, Syed Taimoor Shah was appearing throughout as attorney of his wife Syeda Tahira Begum, petitioner No,l. Had he any grouse he could have taken a formal step when he was defending the suit out of which the present execution petition had emanated. He at this late juncture by employing these technical objections cannot be allowed to frustrate a decree secured by the respondents.

8. ' It has been stated time and again that the cases of the parties should be decided on merits. If a party upon evidence brought on record has established his case on merits, then he should not be knocked out on technical grounds. Rules and procedures are framed to foster the cause of justice and should sparingly come into the way for dispensation of the same on merits. Reliance in this respect is placed upon Imran Ashraf and 7 others v. The State (2001 SCM R 424), Nazir Ahmed and another v. Muhammad Din and others (2001 SCMR 440), Imtiaz Ahmed v. Ghulam and 2 others (PLD 1963 SC 382) and Manager, Jammu and Kashmir State Property in Pakistan v. Khuda Yar and another (PLD 1975 SC 678).

9. At the cost of repetition it is stated that the property under dispute was purchased by the respondents as far back as on 13-12-1972. More than three decades have gone by but the respondents are still hovering in the Courts to get their grievance redressed. The petitioners have successfully, in a mala fide manner through technical objections, been able to impede the course of justice. The then learned Chief Justice of the Peshawar High Court has given 'cogent reasons in the impugned judgment for setting aside the determinations of the two Courts below. Learned counsel for the petitioners has failed to point out any legal infirmity in the impugned judgment warranting interference by this Court.

10. ' Resultantly, for what has been stated above, the instant petition being devoid of any merit and force is hereby dismissed and leave declined.##TE#