1989SCMR674 (PLP)

SAAD SAOOD JAN, J.‑‑One lbadullah Akhtar was owner of a house in Bagh Muhallah, Jhelum. He died on 30‑12‑1959. He was survived by his son Kiramatullah and a daughter, Mst. Mahmooda Akhtar. In September 1962, Mst. Mahmooda Akhtar filed a suit for partition of the house. A preliminary decree was passed by the trial Court on 2‑11‑1962. Before the final decree could be passed, Kiramatullah died. The trial Court impleaded Mst. Saadat Begum and Naz Akhtar as widow and daughter, respectively, of Kiramatullah in his place.

2. The petitioners before us are Mst. Kausar lqbal and her children. They moved an application before the trial Court for also being impleaded as parties to the suit. Their case was that Mst. Kausar lqbal was also married to Kiramatullah and that the other petitioners were her children from her late husband. She further alleged that Mst. Saadat Begum had been divorced by Kiramatullah. This application was contested by the respondents and the trial Court framed two issues on the controversy between the parties. Both parties led evidence and after considering the same the learned trial Court held that Mst. Kausar lqbal was the legally wedded wife of Kiramatullah and that the other petitioners were the. children of Kiramatullah. fie also held that Kiramatullah had not divorced Mst, Saadat Begum.

3. From the order of the learned trial Court Mst. Mahmooda Akhtar filed a revision petition in the High Court. A learned Single Judge dismissed the petition on the ground that the order of the trial Court was an appeal able one. Mst, Mahmooda Akhtar approached this Court to seek leave to appeal from the orders of the learned Single Judge but it was refused.

4. After dismissal of the revision petition, Mst. Mahmooda Akhtar filed an appeal before the District Judge. The learned District Judge reversed the finding of the trial Court that Mst. Kausar lqbal was the lawfully wedded wife of Kiramatullah. The petitioners filed a revision petition in the High Court which was dismissed. They now seek leave to appeal from this Court.

5. In support of this petition it is contended that the appeal of Mst Mahmooda Akhtar before the District Judge was barred by time and was on that ground liable to be dismissed. There is no doubt that the appeal preferred by Mst. Mahmooda Akhtar before the District Judge was out of time but then the learned District Judge had condoned the delay. The order of the learned District Judge was not challenged by the petitioners before the High Curt.. We would therefore decline to give leave to the petitioners on this ground.

6. As regards merits, it is to be noticed that Mst. Kausar lqbal was serving as a maid in the house of Kiramatuilah. There is little doubt that Kiramatullah had performed his nikah with her. This is evident from the letters which he had written from time to time to his relatives. However, prior to marrying Mramatullah, Mst. Kausar lqbal was married to one Khuda Bakhsh. The point of controversy between the parties is whether Mst. Kausar lqbal had been divorced by her previous husband before marrying Kiramatullah. she learned District. Judge and the High Court took the view that Khuda Bakhsh had never‑divorced her.

7. It is stated at the Bar that Kiramatullah was a practicing lawyer at Jhelum. He must have known that he could not marry Mst. Kausar 14h 'fore p she had been divorced by her previous husband for, in that event he would have been charged with bigamy. He was already engaged in litigation with his sister and had a number of enemies. He would not have therefore made himself so vulnerable. There is also no evidence that Khuda Bakhsh had taken any action to contest or raised any protest over the marriage of his wife with another person. These aspects were entirely ignored by the learned District Judge as well as by the High Court while appreciating the evidence of the parties. In the circumstances, despite the so‑called infirmities in the evidence of the petitioners, the version of the petitioners that a divorce had taken place between Khuda Bakhsh and Mst. Kausar Iqbal was more worthy of credit. It is also pointed out that as a result of the finding of the District Judge and the High Court four children of Kiramatullah have become illegitimate. It is therefore a fit case where this Court should re appreciate the evidence.

8. The contentions raised in support of this petition need examination. Leave to appeal is granted. Security for costs in the sum of Rs.5,

000. The appeal may be made ready for hearing on the present record with permission to the parties to file additional documents, if any. In the meanwhile, further proceedings before the trial Court are stayed. AA./K‑86/S Leave to appeal granted.