2014 Y L R 1193
2014 Y L R 1193
[Peshawar]
Before Muhammad Daud Khan, J
Mst. SHAH ROOM and 5 others---Petitioners
Versus
Mst. KHAISTA BIBI and 5 others---Respondents
Civil Revision No.5941-M of 2004, decided on 2nd December, 2013.
Civil Procedure Code (V of 1908)---
----O. VII, R. 11, Ss. 12(2) & 11---Specific Relief Act (I of 1877), S. 42---Suit for declaration---Inheritance, right of---Such right could not be defeated by limitation and res judicata---Rejection of plaint---Scope---Contention of defendants was that ex parte decree was passed in their favour against which application under S. 12(2), C.P.C. had been dismissed while plaintiffs had contended that application under S.12(2), C.P.C. was not filed by them---Application for rejection of plaint was accepted by the Trial Court but same was dismissed by the Appellate Court---Validity---Parties were brothers and sisters inter se and they were entitled in the legacy of their predecessor---Ex parte decree was obtained collusively and same was the result of misrepresentation and concealment of facts to grab the share of plaintiffs---Concocted and fake application under S.12(2), C.P.C. was filed with ulterior motive to fortify the collusive decree through an attorney who was son of defendant---Trial Court was bound to consider the actual facts of original previous suit against which said application was submitted---Right of inheritance would not be defeated by law of limitation or principle of res judicata---No law or judgment could override the Law of Shariah which was superior law---Dismissal of suit by the Trial Court was the result of mis appreciation of law---Pro and against evidence was required to resolve the controversy---Appellate Court was justified to set aside the judgment of Trial Court and case was rightly remanded for decision afresh in accordance with law---Revision was dismissed in circumstances.
Ghulam Ali and others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1; Muhammad Zubair and others v. Muhammad Sharif 2005 SCMR 1217 and Rasool Bibi v. Waryam and 22 others 1992 SCMR 1520 rel.
Muhammad Arshad Khan Yousafzai for Petitioner.
Sabir Shah for Respondent No.3.
Nemo for other Respondents.
Date of hearing: 2nd December, 2013.
JUDGMENT
MUHAMMAD DAUD KHAN, J.---Impugned herein is the judgment and order dated 3-4-2004, passed by the learned Additional District Judge/Izafi Zilla Qazi, Matta, Swat, whereby appeal of respondent No-.1 has been accepted and judgment and decree passed by the trial Court i.e. Civil Judge/Illaqa Qazi, Matta, Swat dated 7-2-2001 was set aside and the application of petitioner/defendant under Order VII, Rule 11, C.P.C. was dismissed.
2. The succinct but necessary facts giving rise to the instant revision petition are that the respondent No.1/plaintiff Mst. Khaista Bibi instituted a suit for declaration and permanent injunction against the defendants to the effect that plaintiff is owner in possession as legal and Shari sharer of property mentioned in the head-note of the plaint and defendants are not entitled to deny the legal share of the plaintiff. The plaintiff averred in the plaint that she and defendants are sisters and brothers inter se and being the heirs of Jamroz Khan, are entitled to the legal and Sharie share in his legacy.
3. The defendants contested the suit, and submitted their written statement along with application for rejection of plaint under Order VII, Rule 11, C.P.C. After hearing the parties, the learned Civil Judge/Illaqa Qazi, Matta, rejected the plaint vide judgment and decree dated 7-7-2001.
4. Aggrieved by the judgment and decree of the trial Court, respondent/ plaintiff preferred an appeal before the District Appeal Court, who after hearing both the parties accepted the appeal and set aside the judgment and decree of the trial Court and consequently case was sent back to the trial Court with the direction to proceed and decide the case in accordance with law. The judgment of appellate Court was assailed by the petitioner through this revision petition.
5. The main contention of the learned counsel for the petitioner is that, since suit property was already decreed in favour of petitioner vide ex parte decree dated 23-1-1996 against respondents Nos.2 and 3, which was attacked by respondent No.1 Mst. Khaista Bibi under section 12(2), C.P.C. and that was dismissed on 10-5-2000, therefore, the plaintiff's instant suit is barred by law of res judicata.
On the contrary, learned counsel for respondent No.1 submitted that the application under section 12(2), C.P.C. was not filed by her rather filed by another person, namely, Zainullah son of Muhammad Amin defendant No.2.
6. I have heard both the learned counsel for the parties and with their valuable assistance gone through the record.
7. Admittedly, the parties are brothers and sisters inter se and legal heirs of Jamroz Khan and are, therefore, entitled to their 1/7 Sharie share in the legacy of their predecessor and there is no disputed regarding the fact that the suit property is the legacy of Jamroz Khan. The previous ex parte decree against respondent No.1 was obtained collusively and was the result of misrepresentation and concealment of facts and to grab the due share of respondent No.1 and with ulterior motive to fortify the collusive decree, the concocted and fake application under section 12(2), C.P.C. was filed through so-called attorney Zainullah, who is son of defendant No.2 Muhammad Amin.
8. When the ex parte decree was challenged under section 12(2), C.P.C., the actual admitted facts came to surface. The learned Civil Judge should have considered the actual facts the original previous suit against which the application under section 12(2), C.P.C. through the so-called attorney was submitted, because it is humble duty of the Court to protect the right of woman-folk, rustic villager and Parda Nasheen lady. Reliance can be placed on a famous judgment of Supreme Court reported in PLD 1996 SC 1 'Ghulam Ali and others v. Mst. Ghulam Sarwar Naqvi'. The relevant portion is reproduced herein below:
"It is the duty of the Courts within the permissible fields, as specified therein, to enforce Islamic law and principles. This case also required similar, if not better, treatment. The scope of rights of inheritance of females (daughter in this case) is so wide and their thrust so strong that it is the duty of the Courts to protect and enforce them, even if 'the legislative action for this purpose of protection in accordance with Islamic Jurisprudence, is yet to take its own time".
Furthermore, right of inheritance would not be defeated by the law of limitation or the principle of res judicata as no law or judgment can override the law of Shariah which is superior law. Reliance can be placed on 2005 SCMR 1217 'Muhammad Zubair and others v. Muhammad Sharif.
9. The conclusion drawn by the trial Court is also against the ratio of the judgment of the Worthy Supreme Court of Pakistan reported in 1992 SCMR 1520 'Rasool Bibi v. Waryam and 11 others', wherein it has been held as under:--
---S.42---Suit for declaration relating to inheritance of deceased by a lady who claimed herself to be the widow of deceased---Suit was not decided as a result of contest between the parties and the compromise as alleged by the defendant was not in reality a compromise as the lady claimed herself to be the widow of deceased and disowned the compromise on the ground that she being a lady was not properly assisted when she was made to thumb-mark the application for compromise".
10. The dismissal of the suit by the trial Court was the result of mis-appreciation of law. The instant case having chequered history and required pro and against evidence, which cannot be resolved on the basis of assumptions, especially when bone of contention is ancestral property and plaintiff is a woman folk, rustic villager and Parda Nasheen lady.
The learned Appellate Court was quite justified to set aside the judgment of trial Court and rightly remanded the case for decision afresh in accordance with law.
For the foregoing reasons, the instant revision petition, being devoid of merits, is dismissed with no order as to costs.
AG/81/P Revision dismissed.
[Peshawar]
Before Muhammad Daud Khan, J
Mst. SHAH ROOM and 5 others---Petitioners
Versus
Mst. KHAISTA BIBI and 5 others---Respondents
Civil Revision No.5941-M of 2004, decided on 2nd December, 2013.
Civil Procedure Code (V of 1908)---
----O. VII, R. 11, Ss. 12(2) & 11---Specific Relief Act (I of 1877), S. 42---Suit for declaration---Inheritance, right of---Such right could not be defeated by limitation and res judicata---Rejection of plaint---Scope---Contention of defendants was that ex parte decree was passed in their favour against which application under S. 12(2), C.P.C. had been dismissed while plaintiffs had contended that application under S.12(2), C.P.C. was not filed by them---Application for rejection of plaint was accepted by the Trial Court but same was dismissed by the Appellate Court---Validity---Parties were brothers and sisters inter se and they were entitled in the legacy of their predecessor---Ex parte decree was obtained collusively and same was the result of misrepresentation and concealment of facts to grab the share of plaintiffs---Concocted and fake application under S.12(2), C.P.C. was filed with ulterior motive to fortify the collusive decree through an attorney who was son of defendant---Trial Court was bound to consider the actual facts of original previous suit against which said application was submitted---Right of inheritance would not be defeated by law of limitation or principle of res judicata---No law or judgment could override the Law of Shariah which was superior law---Dismissal of suit by the Trial Court was the result of mis appreciation of law---Pro and against evidence was required to resolve the controversy---Appellate Court was justified to set aside the judgment of Trial Court and case was rightly remanded for decision afresh in accordance with law---Revision was dismissed in circumstances.
Ghulam Ali and others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1; Muhammad Zubair and others v. Muhammad Sharif 2005 SCMR 1217 and Rasool Bibi v. Waryam and 22 others 1992 SCMR 1520 rel.
Muhammad Arshad Khan Yousafzai for Petitioner.
Sabir Shah for Respondent No.3.
Nemo for other Respondents.
Date of hearing: 2nd December, 2013.
JUDGMENT
MUHAMMAD DAUD KHAN, J.---Impugned herein is the judgment and order dated 3-4-2004, passed by the learned Additional District Judge/Izafi Zilla Qazi, Matta, Swat, whereby appeal of respondent No-.1 has been accepted and judgment and decree passed by the trial Court i.e. Civil Judge/Illaqa Qazi, Matta, Swat dated 7-2-2001 was set aside and the application of petitioner/defendant under Order VII, Rule 11, C.P.C. was dismissed.
2. The succinct but necessary facts giving rise to the instant revision petition are that the respondent No.1/plaintiff Mst. Khaista Bibi instituted a suit for declaration and permanent injunction against the defendants to the effect that plaintiff is owner in possession as legal and Shari sharer of property mentioned in the head-note of the plaint and defendants are not entitled to deny the legal share of the plaintiff. The plaintiff averred in the plaint that she and defendants are sisters and brothers inter se and being the heirs of Jamroz Khan, are entitled to the legal and Sharie share in his legacy.
3. The defendants contested the suit, and submitted their written statement along with application for rejection of plaint under Order VII, Rule 11, C.P.C. After hearing the parties, the learned Civil Judge/Illaqa Qazi, Matta, rejected the plaint vide judgment and decree dated 7-7-2001.
4. Aggrieved by the judgment and decree of the trial Court, respondent/ plaintiff preferred an appeal before the District Appeal Court, who after hearing both the parties accepted the appeal and set aside the judgment and decree of the trial Court and consequently case was sent back to the trial Court with the direction to proceed and decide the case in accordance with law. The judgment of appellate Court was assailed by the petitioner through this revision petition.
5. The main contention of the learned counsel for the petitioner is that, since suit property was already decreed in favour of petitioner vide ex parte decree dated 23-1-1996 against respondents Nos.2 and 3, which was attacked by respondent No.1 Mst. Khaista Bibi under section 12(2), C.P.C. and that was dismissed on 10-5-2000, therefore, the plaintiff's instant suit is barred by law of res judicata.
On the contrary, learned counsel for respondent No.1 submitted that the application under section 12(2), C.P.C. was not filed by her rather filed by another person, namely, Zainullah son of Muhammad Amin defendant No.2.
6. I have heard both the learned counsel for the parties and with their valuable assistance gone through the record.
7. Admittedly, the parties are brothers and sisters inter se and legal heirs of Jamroz Khan and are, therefore, entitled to their 1/7 Sharie share in the legacy of their predecessor and there is no disputed regarding the fact that the suit property is the legacy of Jamroz Khan. The previous ex parte decree against respondent No.1 was obtained collusively and was the result of misrepresentation and concealment of facts and to grab the due share of respondent No.1 and with ulterior motive to fortify the collusive decree, the concocted and fake application under section 12(2), C.P.C. was filed through so-called attorney Zainullah, who is son of defendant No.2 Muhammad Amin.
8. When the ex parte decree was challenged under section 12(2), C.P.C., the actual admitted facts came to surface. The learned Civil Judge should have considered the actual facts the original previous suit against which the application under section 12(2), C.P.C. through the so-called attorney was submitted, because it is humble duty of the Court to protect the right of woman-folk, rustic villager and Parda Nasheen lady. Reliance can be placed on a famous judgment of Supreme Court reported in PLD 1996 SC 1 'Ghulam Ali and others v. Mst. Ghulam Sarwar Naqvi'. The relevant portion is reproduced herein below:
"It is the duty of the Courts within the permissible fields, as specified therein, to enforce Islamic law and principles. This case also required similar, if not better, treatment. The scope of rights of inheritance of females (daughter in this case) is so wide and their thrust so strong that it is the duty of the Courts to protect and enforce them, even if 'the legislative action for this purpose of protection in accordance with Islamic Jurisprudence, is yet to take its own time".
Furthermore, right of inheritance would not be defeated by the law of limitation or the principle of res judicata as no law or judgment can override the law of Shariah which is superior law. Reliance can be placed on 2005 SCMR 1217 'Muhammad Zubair and others v. Muhammad Sharif.
9. The conclusion drawn by the trial Court is also against the ratio of the judgment of the Worthy Supreme Court of Pakistan reported in 1992 SCMR 1520 'Rasool Bibi v. Waryam and 11 others', wherein it has been held as under:--
---S.42---Suit for declaration relating to inheritance of deceased by a lady who claimed herself to be the widow of deceased---Suit was not decided as a result of contest between the parties and the compromise as alleged by the defendant was not in reality a compromise as the lady claimed herself to be the widow of deceased and disowned the compromise on the ground that she being a lady was not properly assisted when she was made to thumb-mark the application for compromise".
10. The dismissal of the suit by the trial Court was the result of mis-appreciation of law. The instant case having chequered history and required pro and against evidence, which cannot be resolved on the basis of assumptions, especially when bone of contention is ancestral property and plaintiff is a woman folk, rustic villager and Parda Nasheen lady.
The learned Appellate Court was quite justified to set aside the judgment of trial Court and rightly remanded the case for decision afresh in accordance with law.
For the foregoing reasons, the instant revision petition, being devoid of merits, is dismissed with no order as to costs.
AG/81/P Revision dismissed.
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