MIRBAD KHAN (LATE) vs MUHAMMAD UMER Mistake of court /counsel — 2021 CLC 1530 PESHAWAR-HIGH-COURT

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MIRBAD KHAN (LATE) VS MUHAMMAD UMER Mistake of court /counsel---Scope and effect---Dismissal of case on hyper-technical grounds/manner ---Counsel filed appeal before the Appellate Court by mentioning deceased plaintiff as appellant instead of his legal heirs (petitioners)---Appellate Court dismissed the appeal on the ground that the same was preferred/filed by a dead person---Record revealed that after the demise of the plaintiff, his legal heirs were impleaded, however, in decree sheet drawn by the Trial Court, the names of legal heirs of the deceased plaintiff were not mentioned---Wakalat Nama submitted before the Appellate Court showed that the name of deceased plaintiff (predecessor of the petitioners) was once again mentioned as appellant but through attorney and for that reason when the appeal came up for hearing before the Appellate Court, the same was dismissed for the reason that the appellant (deceased plaintiff) had died some five years prior to the institution of appeal---Appellate Court had dismissed the appeal on hyper-technical ground ignoring the fact that said mistake was actually attributable to the Trial Court when, in the decree sheet, deceased plaintiff had not been stated/mentioned being represented through legal heirs; secondly, it was mistake of the counsel representing the petitioners---Poor and illiterate litigant should not suffer due to the mistake of court and the counsel---Mistake of court would prejudice none and the appeal was a continuation of the original proceedings before the higher forum for testing the soundness of the decision of the lower Court---Mentioning of incorrect title in the memo of appeal would not deprive the appellant from their legal right to pursue their remedy before the higher forum when they were vigilant and had filed the appeal within time---Appellate Court had acted in hyper technical ground/manner which was against the principle of administration of justice that any system which by giving effect to the form and not the substance defeated substantive right, was defective to that extent---High Court set aside decree-sheet, being not sustainable and directed that the appeal of the petitioners would remain pending before the Appellate Court for decision of the same on merits ---Revision petition was disposed of accordingly.

MIRBAD KHAN (LATE) vs MUHAMMAD UMER Mistake of court /counsel — 2021 CLC 1530 PESHAWAR-HIGH-COURT

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