Litigation in a suit for pre-emption, which is a feeble right.

In “Ch. SAIFULLAH. vs. ALI SALEEM and another” (2015 MLD 247) while dealing with the plea of recording evidence in one case and reproducing in another case it was observed by this Court as follows: - 

“11. The said view has further been affirmed by this court in another case reported as Muhammad Ramzan v. Muhammad Jahangir and another (2012 CLC 844), wherein, it was held that 'unnecessary technicalities should not be allowed to deter the due process of law on trifling grounds, particularly where no prejudice is likely to be caused to any litigant, meaning thereby, the procedural environment must be made conducive to facilitate the flow of the stream of justice.' The identical controversy was also clinched in many other cases by this court as well as the august Supreme Court of Pakistan. Reference can be made on the cases reported as Muhammad Sharif v. Muhammad Yousaf (2008 MLD 307) and Khushi Muhammad v. Muhammad Yousaf (2008 YLR 362). After placing reliance upon the case reported as Salehon Muhammad and another v. Allah Yar (1989 SCMR 540) this court is of the firm view that the plea raised by the appellant/plaintiff that evidence recorded in one case copied in verbatim over the other file in the peculiar facts and circumstances of the instant case cannot be declared fatal and the appellant/plaintiff could have objected the mode of recording of evidence before the learned trial court, if he was prejudiced in any manner, but he having failed to do so, at this stage before the third forum such an objection cannot be considered. Even today, the learned counsel for the appellant has not been able to point out that how the appellant was prejudiced by the alleged mode adopted by the learned trial court in recording the evidence of the parties and that how the evidence of one case has damaged the stance of the appellant in the other case and how the same were different from each other. It is not the case of the appellant that there were different sets of witnesses in both the cases and separate witnesses were to be examined, whose mind set would vary from each other. There could be substance in the argument of learned counsel for the appellant that the evidence of a witness recorded in one case was copied in verbatim in the other case of a different witness on the similar issue. Even otherwise, the appellant has been nonsuited on his own omissions and commissions made during the proceedings of the cases, but he is not aggrieved of any procedural defect on the part of the learned trial court in losing the cases on merits. Hence, after the elapse of about 12 years, I do not find any good ground to throw the parties in another round of litigation in a suit for pre-emption, which is a feeble right.”

Used in Judgement of
Lahore High Court
Civil Revision-Civil Revision (against Decree)-Und...
472-18