P L D 2016 Lahore 587

Before Ch. Muhammad Masood Jahangir, J

SARDARA AND ALLAH DITTA through Legal Heirs and others---Appellants

Versus

Mst. BASHIR BEGUM and another---Respondents

R.S.A. No.64 of 2008, decided on 25th January, 2016.

(a) Gift--

----Oral gift---Alleged donor an old illiterate village lady---Gift in favour of alien---

Requirements---Gift mutation sanctioned on the basis of consent decree---Scope---Non-
claiming of consequential relief---Effect---Judicial proceedings---Presumption of truth---
Scope---Contention of plaintiffs was that gift mutation sanctioned through consent decree was
illegal, void and ineffective upon their rights---Suit was dismissed concurrently---Validity---
Nothing was on record as to when, where and before whom declaration of gift was made by
the donor which was accepted by the donee and possession was delivered in lieu thereof---Oral
gift was permissible but same was required to be proved by production of persuasive and
trustworthy evidence---Trial Court proceeded to decree the suit merely on the basis of
conceding written statement as well as conceding statement of donor without taking
precautionary measures whether all such proceedings were being conducted without any
coercion or misrepresentation on the part of donor-lady---Consent decree being an agreement
between the parties to the lis when brought under challenge was required to be proved by
beneficiary through production of convincing and cogent evidence---Trial Court without
issuance of summons to the rival party for any further date of hearing received written
statement of defendant-donor and after recording her conceding statement suit was decreed on
the same day---Identification of a lady by the advocate before the court who had not been
engaged through execution of power of attorney would have no sanctity in the eye of law---No
other independent advice was available to the donor who was an illiterate and old age folk lady-
--Gift mutation for its completion required independent witnesses and identifiers which were
not available to the donee in the present case---Principles.
 Donee managed to get transferred the suit property through the alleged consent decree.
Judicial Officer was required to exercise his jurisdiction while dealing with the case file as
provided by the enactment. Court could not decide the lis without following the procedure and
that too in a haste. Defendant being beneficiary of impugned decree was required to prove that
donor had made a declaration of gift and same was accepted by her and possession was
delivered to her in lieu thereof. No convincing and reliable evidence had been led by the
defendant to prove the alleged transaction of gift. Neither any official of the court nor counsel
who filed the suit on behalf of defendant were brought into witness-box by the defendant to
prove that donor had appeared before the court. Fictitious decree was obtained by the
defendants. Presumption of truth was attached to the judicial proceedings but when such
proceedings were challenged then beneficiary was required to prove the same. Consent decree
was not implemented till the death of donor. lf decree was passed with the free consent of donor
then same must have got implemented in her life time. Revenue hierarchy was bound to
implement decree in common assembly to be convened in the concerned revenue estate and
same must have come in the knowledge of donor as well as her legal heirs. Donee was not
related to donor and without assigning any reason gift in favour of alien was not valid. When
legal heirs of donor were available then reasons should be highlighted as to why the donor
made the gift in favour of an alien. Donee had failed to prove the transaction of oral gift,
genuineness and validity of decree by withholding the best evidence. Plaintiffs being the legal
heirs of donor could not be deprived of their share in the disputed property on technical
grounds. If party seeking declaration had failed to claim consequential relief, it could not be
non-suited on such count. Rules and regulations were made to foster the cause of justice and
those were not to be interpreted to thwart the same. Court should not deny substantial justice
on mere technicalities. When main factual issue had been determined in favour of a party on
merits, his lis could not be defeated on the technical ground that he failed to claim a proper
relief. Court being custodian of rights of litigants was vested with the powers to grant relief
even if it had not been claimed/prayed for. Impugned judgments and decrees passed by both
the courts below were not based on proper examination of material available on record which
were set aside. Suit filed by the plaintiffs was decreed with further relief that they would be
entitled for recovery of possession of suit property. Plaintiffs were directed by High Court to
affix court fee of Rs.15,000/- on the plaint as well as on the memo of appeals within a period
of two months otherwise their suit as well as present appeal would be deemed to be dismissed.
Second appeal was allowed in circumstances.

Abdul Majid and others v. Khalil Ahmad PLD 1955 FC 38; Mt. Kapoori and 4 others
v. Man Khan and 6 others 1992 SCMR 2298 and Haji Sultan Ahmed through Legal Heirs v.
Naeem Raza and 6 others 1996 SCMR 1729 ref.

Habib and 8 others v. Haji Muhammad and 3 others PLD 1970 Kar. 495; Ghulam Akbar
Khan v. Haji Sher Jan and others 1989 CLC 1789; Pir Dil and others v. Dad Muhammad 2009
SCMR 1268; Barkat Ali through Legal Heirs and others v. Muhammad Ismail through Legal
Heirs and others 2002 SCMR 1938; Meraj Din v. Mst. Sardar Bibi and 5 others 2010 MLD
843; Ch. Akbar Ali v. Secretary, Ministry of Defence, Rawalpindi and another 1991 SCMR
2114; Pakistan v. Khuda Yar and another PLD 1975 SC 678; Mst. Arshan Bi through Mst.
Fatima Bi and others v. Maula Bakhsh through Mst. Ghulam Safoor and others 2003 SCMR
318 and Muhammad Khan v. Rasul Bibi PLD 2003 SC 676 rel.

(b) Civil Procedure Code (V of 1908)--

----S. 100---Second appeal---Scope---High Court could rebuff the concurrent findings of courts
below if same were based on improper and perverse appreciation of evidence.

Khushi Muhammad v. Liaquat Ali PLD 2002 SC 581 and Iftikhar v. Khadim Hussain
PLD 2002 SC 607 rel.

(c) Qanun-e-Shahadat (10 of 1984)---

----Arts. 129(e) & 58---Judicial proceedings---Presumption of truth---Scope---Presumption of

truth was attached to the judicial proceedings but when such proceedings were challenged,
beneficiary was required to prove the same.

(d) Administration of justice---

----Technicalities could not be allowed to create any hurdle in the way of substantial justice.

(e) Administration of justice--

----Court could mould relief according to merits of the case.

Sheikh Naveed Shahryar, Humaira Bashir Ch. and Javed Imran Ranjha for Appellants.

Abid Hussain Minto for Respondent No.1.

Dates of hearing: 18th December, 2015 and 25th January, 2016.

JUDGMENT
 CH. MUHAMMAD MASOOD JAHANGIR, J.--Succinctly the facts of the case are
that the property fully mentioned in para-1 of the plaint belonged to Mst. Allah Jawai daughter
of Nizam Din, regarding which a suit for declaration was instituted by Mst. Bashir Begum,
respondent No.1 contending therein that she was owner in possession of the land as the same
was orally gifted to her by said Mst. Allah Jawai due to love and affection on account of
services rendered by her and Mst. Allah Jawai be permanently restrained from interfering into
her possession with a further direction for implementation of gift mutation qua the suit property
in her favour. The said suit was filed before the Civil Court on 7.4.1970 and the same was
decreed within two days i.e. on 09.4.1970 as the claim of Mst. Bashir Begum, respondent No.1,
was allegedly conceded by Mst. Allah Jawai while submitting her conceding written statement
besides making conceding statement before the Court.

2. After the demise of Mst. Allah Jawai, inheritance mutation No.162 of her estate was
sanctioned in favour of the appellants being her collaterals/legal heirs. On the other hand, the
Revenue Officer rejected the gift mutation No.166, which was entered by the Revenue Patwari
in favour of respondent No.1 on the basis of consent decree. Ultimately, mutation of inheritance
No.162 sanctioned in favour of the appellants was cancelled and gift mutation No.166 was
attested in favour of respondent No.1 by the appellate revenue forum. Subsequently, Sardara,
etc, the present appellants instituted suit in hand for declaration alleging therein that they being
the collaterals/legal heirs of Mst. Allah Jawai were in possession of the land in dispute whereas
respondent No.1 had no concern with the same and by way of consequential relief prayed for
restraining respondent No.1 permanently from interfering into their possession over it and that
the gift mutation sanctioned through the fictitious decree of the court was illegal, void and
ineffective for the reasons that neither any declaration of gift was made by Mst. Allah Jawai in
favour of respondent No.1 nor it was accepted by her and possession of the property was also
not delivered to respondent No.1 in lieu of alleged gift; that respondent No.1, the alleged donee,
was not related to Mst. Allah Jawai and there was no occasion for the alleged donor to make a
gift of land in her favour and that neither any statement was got recorded by Mst. Allah Jawai
nor she was identified by any notable person before the Civil Court, which passed the fictitious
consent decree. The said suit was hotly resisted by respondent No.1. While facing with the
contest of the suit, the learned trial court captured the disputed area of facts by framing the
following issues:-

1. Whether Allah Jawai was owner of the land in dispute? OPP

2. Whether the plaintiffs are collateral heirs of Mst. Allah Jawai? OPP

3. If issue No.2 is proved in affirmative, whether the plaintiffs are owners in possession
of the disputed land? OPP
4. Whether Mst. Allah Jawai validly gifted her property in dispute in favour of the
defendant? OPD

5. Whether the gift made by Mst. Allah Jawai is void, inoperative and not binding upon
the plaintiffs due to the reasons stated in para No.4 of the plaint? OPD

6. Whether the suit is not maintainable in its present form? OPD

7. Relief

3. After recording evidence of both the parties, the learned trial court dismissed the suit
of the appellants vide judgment and decree dated 28.11.1977. Being aggrieved, the present
appellants filed an appeal before the learned lower appellate court, which came up for hearing
before the learned Addl. District Judge, Gujrat, who allowed the same vide judgment and
decree dated 20.4.1982, set aside the judgment and decree passed by the learned trial court and
decreed the suit filed by the present appellants. Feeling dissatisfied, respondent No.1 filed RSA
No.225/1982 before this Court, which was disposed of by Justice Muhammad Sair Ali, as he
then was, vide judgment dated 18.4.2006 in the following terms:-

"Examination of the impugned judgment and decree dated 20.4.1982 of the learned Additional
District Judge, Gujrat shows that the ADJ failed to deal with and determine issue No.6 framed
on the maintainability of the suit and also decided the remaining issues (per consensus of the
learned counsel for the parties) contrary to the law. In view of the joint request of the learned
counsel for the parties and for the above recorded reasons, the impugned judgment and decree
dated 20.4.1982 of the learned Additional District Judge, Gujrat is set aside. Civil Appeal
No.746 of 1988 titled "Sardara and another v. Mst. Bashir Begum" shall be deemed to be
pending before the learned first appellate court. The appeal shall be reheard and re decided in
accordance with law and on the basis of record reconstructed in this Court. The record herein
constructed shall expeditiously be transmitted to the learned District Judge, Gujrat. The parties
shall appear before the learned District Judge, Gujrat on 15.5.2006. The learned District Judge,
Gujrat may hear and decide the appeal himself or may assign the same to any other learned
Addl. District Judge. Endeavour shall be made to decide the appeal expeditiously."

4. In post remand proceedings, the learned lower appellate court vide judgment and decree
dated 7.7.2008 dismissed the appeal filed by the present appellants. Seeming aggrieved, the
instant second appeal under Section 100 of the Code of Civil Procedure,1908 has been filed by
the appellants before this Court.
5. Learned counsel for the appellants has argued that the impugned judgments and decrees
passed by both the learned courts below are against facts and law and suffer from material
illegalities and irregularities; that there is no evidence on record that when alleged offer of gift
was made by Mst. Allah Jawai, before whom it was accepted by Mst. Bashir Begum,
respondent No.1 and delivery of possession under the alleged gift was made to her and as such
necessary ingredients could not be proved by respondent No.1/beneficiary, but both the courts
below without application of judicious mind passed the impugned judgments and decrees in
complete derogation of material available on record; that the impugned consent decree dated
9.4.1970 and the proceedings recorded in the said suit could not be made basis to sanction gift
mutation regarding the suit property owned by Mst. Allah Jawai the alleged donor, without
proving all its ingredients, but the courts below failed to consider the said aspect of the case in
true perspective; that neither Mst. Allah Jawai herself appeared before the Civil Court nor any
statement was got recorded by her and the said alleged facts could not be proved by respondent
No.1 /beneficiary and the present appellants being the legal heirs of Mst. Allah Jawai deceased
are entitled to be declared owners of the disputed property while setting aside of the impugned
judgments and decrees. He has lastly prayed for acceptance of the instant appeal, setting aside
of the impugned judgments and decrees passed by the two courts below and that the suit filed
by appellants be decreed as prayed for.

6. Conversely, the learned counsel for respondent No.1 has refuted the arguments
advanced by the learned counsel for the appellants with the assertions that Mst. Allah Jawai
herself appeared before the learned Civil Court in the company of her learned counsel, who did
not only submit conceding written statement, but also got recorded her conceding statement
while admitting the claim of respondent No.1 pleaded in the said plaint on the strength of
which, order and decree dated 09.4.1970 was passed in her favour; that respondent No.1
succeeded to prove that declaration of gift was made by Mst. Allah Jawai deceased in her
favour, which was accepted by her and in lieu thereof, possession of the disputed property was
also handed over to her who is still in use and occupation of the same since the day of inception
of the gift; that appellants were and are out of possession, who simply filed suit for declaration
without seeking relief of possession, which being not maintainable was dismissed by two courts
below and such findings of two courts below having been based on true appreciation of
evidence, cannot be interfered with, and that strong presumption of truth is attached to the
judicial proceedings, which cannot be vitiated merely on oral assertion. He while relying upon
the judgments reported as Abdul Majid and others v. Khalil Ahmad (PLD 1955 Federal Court
38), Mt. Kapoori and 4 others v. Man Khan and 6 others (1992 SCMR 2298) and Haji Sultan
Ahmed through Legal Heirs v. Naeem Raza and 6 others (1996 SCMR 1729) contended that
concurrent findings of fact recorded by two courts below cannot be struck down by this Court
while dealing with the second appeal. He has lastly prayed for dismissal of the instant appeal.

7. Arguments heard and record perused.

8. It is admitted fact that on 7.4.1970 respondent No.1 instituted suit against Mst. Allah
Jawai on the basis of declaration of oral gift allegedly made by her and the copy of the plaint
thereof is available at page-87 of the instant file. The perusal of contents of the plaint clearly
reveals that it is nowhere mentioned that when, where and before whom the declaration of gift
was made by the alleged donor/owner, which was accepted by respondent No.1/donee and
possession was also delivered in lieu thereof. There is no denial of the factum that an oral gift
is permissible under the law and can be made by a Muslim owner in favour of a donee, but the
same is required to be proved by production of persuasive and trustworthy evidence. As
observed supra in the plaint the venue, date and the names of the witnesses are missing to prove
that when, where and before whom the oral declaration of gift was effected. These are the basic
ingredients to be incorporated in the body of the plaint of the suit, which are missing from its
inception, but without taking into consideration the said aspect, the Civil Court proceeded to
decree the suit instituted by respondent No.1 merely on the basis of conceding written statement
as well as conceding statement allegedly preferred and made by Mst. Allah Jawai through order
dated 09.4.1970 and no precautionary measures were adopted to satisfy the conscious of the
court whether all such proceedings were being conducted without any coercion or
misrepresentation on the part of the lady. The appellants being collaterals/legal heirs of Mst.
Allah Jawai challenged the said decree while claiming it fictitious and against facts. There is
much force in the argument of Sh. Naveed Shahryar, Advocate, learned counsel for the
appellants, that the controversy arising between the parties is based on alleged consent decree,
which being an agreement between the parties to the said lis, when brought under challenge,
was required to be proved by the beneficiary through production of convincing and cogent
evidence. This view is supplemented by the dicta laid down in the judgments reported as Habib
and 8 others v. Haji Muhammad and 3 others (PLD 1970 Karachi 495), Ghulam Akbar Khan
v. Haji Sher Jan and others (1989 CLC 1789) and Pir Dil and others v. Dad Muhammad (2009
SCMR 1268), wherein it is held that the consent decree passed in favour of a person does not
stand on a higher footing than a contract so far as its legal character is concerned
notwithstanding the fact that it has been recorded by and bears the seal of the Court. By
following the ratio in the above referred dicta, it can safely be concluded that the consent decree
is just an agreement between the parties of the lis, which after having been taken under dispute
requires to be proved independently by production of direct affirmative evidence.

9. As per copy of the plaint, which is available at page 87, the same was instituted on
07.4.1970 by respondent No.1 and the Senior Civil Judge marked the same to the Civil Judge
for 08.4.1970. As per copy of interlocutory order sheet (Exh.P2), which is available at page 89,
the suit file was presented before the learned Judicial Officer on 8.4.1970, who adjourned the
same to 9.4.1970 for its scrutiny. The official of the court produced the suit file after scrutiny
before the learned Judicial Officer on 9.4.1970, who without issuance of summons to the rival
party for any further date of hearing, received written statement on behalf of Mst. Allah Jawai,
defendant, recorded her conceding statement to the effect that contents of plaint were correct
and the suit was decreed on the same day. The copy of written statement filed by Mst. Allah
Jawai is also available at page-90, but it is surprising to note that apparently the same was
drafted on 07.4.1970 when the suit was instituted by respondent No.1, which means that the
plaint and the alleged written statement of Mst. Allah Jawai were drafted on the same day. The
said written statement was not signed by any counsel, rather on its back, the alleged statement
attributed to Syed Ijaz Hussain, Advocate is available, who endorsed that Mst. Allah Jawai was
personally known to him and she affixed her thumb impression on the conceding written
statement in his presence. Admittedly, as per case diary maintained by the Civil Court, neither
said Advocate put in appearance before the said Court by presenting his Vakalatnama on behalf
of Mst. Allah Jawai nor power of attorney of any counsel on her behalf was ever filed on the
suit file. The identification of a lady by some Advocate before the court of law, who had not
been engaged through execution of any Vakalatnama attains no sanctity in the eye of law. It is
also significant to note that there is no mention in the case diary that Mst. Allah Jawai had been
identified by said Syed Ijaz Hussain, Advocate, before the judicial officer when the conceding
written statement was filed or her statement was got recorded. It is astonishing to note that this
written statement finds mention filing date as 8.4.1970 at its back, but as per case diary the
same was submitted on 9.4.1970, which has also created serious doubt that how the proceedings
of the court were conducted in a clandestine manner to deprive an illiterate lady from landed
property.

10. Additionally, the record also affirms that no other independent advice was available to
Mst. Allah Jawai, who admittedly was an illiterate and old age folk lady. If the said lady had
made a declaration of gift in favour of respondent No.1 and the property of the donor was also
not under any clog, then why the donee did not get it transferred by means of attestation of gift
mutation or instrument. Naturally both the said deeds for its completion required independent
witnesses and identifiers, which definitely were not available to respondent No.1, who
managed to get it transferred through the alleged consent decree. The judicial officer to whom
the case file was presented, without issuance of formal summons for the service of Mst. Allah
Jawai, the defendant of the said suit, proceeded to decree the same within a span of only one
or two days and that too without fetching any document of title of Mst.Allah Jawai regarding
the suit property or getting her identified through any male member of the family. A judicial
officer is required to exercise his jurisdiction while dealing with a case file as provided by the
enactment. There was no occasion for him to decide the lis without following the procedure
and that too in such a haste, which has made the proceedings conducted by him doubtful and
unreliable.

11. Being beneficiary of the impugned decree, it was incumbent upon the decree
holder/respondent No.1 to prove that Mst. Allah Jawai had made a declaration of gift, the same
was accepted by her and possession was handed over to her in lieu thereof, and that this oral
transaction was acknowledged by Mst. Allah Jawai while appearing before the Civil Court on
09.4.1970, but no convincing and reliable evidence was led by respondent No.1 in this regard
to prove the alleged transaction of gift. Additionally, neither any official of the court nor the
counsel/Advocate, who filed the suit on behalf of respondent No.1 and even Syed ljaz Hussain,
the learned Advocate, whose statement was shown to have been recorded on the back of the
written statement, allegedly filed by Mst. Allah Jawai, defendant, were brought into the
witness-box by respondent No.1/beneficiary to prove that Mst. Allah Jawai, donor had
appeared before the Court, who not only filed her written statement, but also got recorded her
conceding statement. The other backdrop of the case is that the learned Civil Court decreed the
suit vide order dated 09.4.1970 on the strength of alleged conceding statement of Mst. Allah
Jawai, but the perusal of first page of decree a sheet available at pages 92-93 of the instant file
reveals that it was chalked out on 08.4.1970, whereas back side thereof reflects that it was
drawn on 09.4.1970, which is another strong proof to observe that a fictitious decree was
obtained by respondent No.l. No doubt, under Article 129(e) of the Qanun-e-Shahadat Order,
1984, presumption of truth is attached to the judicial proceedings, but whenever these are
brought under the clog/question, then beneficiary is required to prove the same under Article
58 of Order ibid, which is lacking in the case in hand.

12. It is also significant to note that the consent decree dated 09.4.1970 was kept in dark by
respondent No.1 /beneficiary throughout the life of Mst. Allah Jawai, which was not
implemented till her death i.e. 07.11.1972 and after the death of Mst. Allah Jawai when
inheritance mutation No.162 of her legacy was sanctioned in favour of her
collaterals/appellants, then respondent No.1/beneficiary brought the consent decree into light
for the first time before the revenue hierarchy for its implementation and got entered mutation
No.166 in her favour, but the same was rejected by the Revenue Officer. Being aggrieved,
respondent No.1 assailed the same and ultimately mutation of inheritance No.162 was
cancelled whereas gift mutation No.166 was attested in her favour. The silence of respondent
No.1/beneficiary regarding the implementation of consent decree in the lifetime of Mst. Allah
Jawai is another serious factor, which has shattered the genuineness and validity thereof. If the
decree was passed with free consent of Mst. Allah Jawai in favour of respondent
No.1/beneficiary, then she must have got implemented the same in the life time of Mst. Allah
Jawai, who remained alive for next about 2-3/4 years having taken her last breath on
07.11.1972, if any effort for entry or attestation of mutation in compliance of consent decree
was made, it must be presented before the revenue Patwari and revenue officer, who were
obliged to implement the same in the common assembly to be convened in the concerned
revenue estate and the said decree must have come into the knowledge of Mst. Allah Jawai as
well as her collaterals and others, but it was kept secret, which is sufficient to draw an
irresistible conclusion that all this drama was played to usurp the landed property of an old age
woman.

13. There is much force in the argument of Sh. Naveed Shahryar, Advocate, learned
counsel for the appellants that respondent No.l/ beneficiary was not related to Mst.Allah Jawai
and without assigning any reason, the gift in favour of an alien was not valid. No doubt, a
Muslim is free to transfer his property by making a declaration of gift in favour of any person,
but when the collaterals/legal heirs of the donor were available then as per dicta laid down in
the judgments reported as Barkat Ali through Legal Heirs and others v. Muhammad Ismail
through Legal Heirs and others (2002 SCMR 1938) and Meraj Din v. Mst. Sardar Bibi and 5
others (2010 MLD 843), there should be reasons to be highlighted as to why the donor was
going to make a gift in favour of an alien. On the touchstone of above discussion, it can safely
be concluded that beneficiary/respondent No.1 failed to prove the transaction of oral gift,
genuineness and validity of the decree by withholding the best available evidence, therefore,
the findings of the courts below on issues Nos.3 to 5 are not to be well founded being result of
misreading and non-reading of evidence available on record, which are hereby reversed and
are answered in favour of the appellants.
14. The contention of Mr. Abid Hussain Minto, Advocate, learned counsel for respondent
No.1 that simple suit for declaration without seeking consequential relief of possession was not
maintainable and especially when both the courts below concurrently rendered their findings
to this extent, the suit instituted by the appellants cannot be decreed is not well founded. As it
is proved on record that respondent No.1 managed transfer of the disputed property without
any independent transaction by means of a consent decree, which even otherwise could not be
proved to have been validly passed. The appellants, who admittedly are legal heirs of Mst.
Allah Jawai could not be deprived of their share in the said property on technical grounds and
a party seeking declaration if has failed to claim consequential relief, cannot be non-suited on
such count. There is unanimity among the superior Courts that mere technicalities cannot be
allowed to create any hurdle in the way of substantial justice. Rules and regulations are made
to foster the cause of justice and those 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. In forming this view, I am fortified by the dicta laid down in the case reported
as Ch. Akbar Ali v. Secretary, Ministry of Defence, Rawalpindi and another (1991 SCMR
2114), wherein it is 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 lqbal 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. 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 state
institution or functionary action as such."

Reference is also made to the case of Manager, Jammu and Kashmir, State property in Pakistan
v. 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 forum 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."

The apex Court once again after approving the verdict of Ch. Akbar Ali's case (supra) and
clinching the issue under discussion in a case reported as Mst. Arshan Bi through Mst. Fatima
Bi and others v. Maula Bakhsh through Mst. Ghulam Safoor and others (2003 SCMR 318) held
as under:-

"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.

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
reasons of the Act 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 plaint 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."

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."
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 SCMR 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.

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."

15. No doubt, a different and contrary thought of dicta laid down by the Superior Court is
also available on this subject, but each case has to be decided on its own merits and where the
main factual issue has been determined by the court of law in favour of a party on merits, then
to my mind, his lis cannot be defeated on the technical ground that he failed to claim a proper
relief. The court being custodian of the rights of the litigants, is vested with the powers to grant
relief even if it has not been claimed/prayed for. The Court is possessed with the jurisdiction
to provide and mould the relief, according to the merits of the case. For instance, I would like
to refer to Order VII rule 7 of the Code of Civil Procedure, 1908, which reads as under:-

"7. Relief to be specifically stated.- Every plaint shall state specifically the relief which the
plaintiff claims either simply or in the alternative, and it shall not be necessary to ask for general
or other relief which may always be given as the Court may think just to the same extent as if
it had been asked for. And the same rule shall apply to any relief claimed by the defendant in
his written statement."

The bare perusal thereof makes it open to the court to provide, mould and grant adequate relief
even if not claimed in the plaint as per circumstances of the case. Both the courts below without
attending to the above discussed dicta of the apex Court as well as the mandate of provisions
ibid erred in law while answering issue No.6 against the appellants, which reasoning being not
maintainable is reversed and said issue is also decided in favour of the appellants.

16. The argument of learned counsel for respondent No.1 that concurrent findings of fact
cannot be upset by this Court while exercising jurisdiction under Section 100 of the Code of
Civil Procedure, 1908, has some force, but it is not an absolute principle. However, certain
criteria have been laid down by the apex Court for interference in its various judgments. In the
case reported as Muhammad Khan v. Rasul Bibi (PLD 2003 SC 676), the apex Court while
upholding the judgment of this Court held as under:-

"Ordinarily concurrent findings recorded by the courts below could not be interfered with by
the High Court while exercising jurisdiction in the second appeal howsoever erroneous the
findings may be, unless such findings had been arrived at by the courts below either by ignoring
a piece of evidence on record or through perverse appreciation of evidence. High Court, in the
present case, was justified in interfering with concurrent findings, after noticing that the
judgments of the courts below suffer from acute miscarriage of evidence and exclusive of
material available on the record, resulting in gross miscarriage of justice."

By now it has been established that the concurrent judgments of the courts below if originated
from improper and perverse appreciation of the evidence on record, the same can be rebuffed
by this Court in exercise of power under Section 100 of the Code of Civil Procedure, 1908. In
another case reported as Khushi Muhammad v. Liaquat Ali (PLD 2002 SC 581), concurrent
judgments were obtained without proving the execution of gift deed, properly and the august
Supreme Court of Pakistan upheld the interference of this Court under Section 100 of the Code
of Civil Procedure, 1908 while observing in para-11 as under:-

"11. We have not been persuaded to agree with Mr. Gul Zarin Kiani, learned Advocate
Supreme Court that in view of section 100, C.P.C. the concurrent findings arrived at by the
Courts below cannot be reversed for the simple reason that no such bar has been enumerated
in section 100, C.P.C. and in case of non- reading and misreading of evidence such findings
could be reversed ."

Likewise, in case titled as Iftikhar v. Khadim Hussain (PLD 2002 SC 607), the apex court of
the country has enumerated the area where this Court can interfere in the concurrent findings
recorded by the lower courts and held as under:-

"Concurrent findings are not sacrosanct and can be reversed when such findings are based on
insufficient evidence, misreading of evidence, non-consideration of material evidence,
erroneous assumption of facts, patent errors of law or consideration of inadmissible or
something so outrageous or so gross as to shock they very basis of justice."

17. In the present case, the issues of fact and law have not been properly determined by the
two courts below and the impugned judgments and decrees being based on non- examination
of material available on record in its true perspective are not sustainable in the eye of law.
Consequently, the instant Regular Second Appeal is accepted, the impugned judgments and
decrees passed by the two courts below are set aside and the suit filed by the appellants is
decreed with further relief that the appellants are also entitled for the recovery of possession of
the disputed property with a further direction to them to affix court fee of Rs.15,000/- on the
plaint as well as on the memo of appeals within a period of two months positively otherwise
their suit as well as instant appeal will be deemed to be dismissed. No order as to costs.

ZC/S-37/L Appeal allowed.