When such a point
came up before the Hon’ble Supreme Court, it was settled
through reported judgment Mst. Arshan Bi through Mst. Fatima
Bi and others v. Maula Bakhsh through Mst. Ghulam Safoor
and others (2003 SCMR 318), referred by learned appellate
Court in its impugned judgment but could not conceive its ratio
in its true perspective, and it was invariably held:-
‘……………… If a party seeking declaration has
failed to claim consequential relief, he should not
have been non-suited on technical grounds. It has
been held time and again by this Court that
technicalities shall not create hurdles in the way of
substantial justice. Rules and regulations are made
to foster the cause of justice and they 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. Reference in
this regard is made to the case of Ch. Akbar Ali v.
Secretary,
Ministry of Defence, Rawalpindi and
another (1991 SCMR 2114) where it was held as
under :-
“In the exercise to do justice in accordance
with law the Court 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 Iqbal 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 a State institution or
functionary acting as such.”
Part of Judgment
Lahore High court
Civil Revision
1250088.1744-11
2018 LHC 2340
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