1999 PLP 2738 (MLD)

This revision is directed against the order, dated 29-4-1993 passed by Mr. Habib-ur-Rehman, the then learned Civil Judge, Depalpur, whereby, he granted certificate of succession to the widows of the deceased Manzoor Ahmad Khan Wattoo namely Mst. Fareeda Fatima and Mst. Bashiran Bibi alongwith others. The order of the learned Civil Judge was challenged in appeal which was also dismissed vide order, dated 24-3-1994 passed by Mr. Khalid Akhtar, the then learned Additional District Judge, Depalpur, who confirmed the order of the trial Court.

2. The brief facts are that Manzoor Ahmad Khan Wattoo died issueless on 17-12-1989. A petition for obtaining succession certificate was instituted on 5-4-1990 by one of his widows- namely Mst. Farida Fatima. The other widow of the deceased namely Mst. Bashiran Bibi i.e. respondent No.8 in the petition also claimed her share as widow qua the other heirs of the deceased. The real dispute arose between the heirs regarding the claim of the widows. In this respect, the present revision petitioners contended that none of the two widows was ever married with Manzoor Ahmad Khan Wattoo and as such, they had no right for the issuance of succession certificate in their favour. The learned trial Court framed the issues on the controversial points and came to the conclusion on the basis of oral as well as documentary evidence including the 'Nikahnama' produced by each of the widows and also the 'Nikahkhawan', that they were legally wedded wives of the deceased. On the contrary, the revision petitioner/respondents in the Court below were given a number of opportunities to produce their evidence in rebuttal but they remained unsuccessful to bring any witness to show that any of the two widows was not married to the deceased Manzoor Ahmad Khan Wattoo. After giving several opportunities and warnings to the respondents to produce evidence, their evidence was ultimately closed under Order, 17, Rule 3, C.P.C. and the judgment was announced, whereby, the two widows were granted succession certificate to the extent of 1/8th according to their legal shares under Sharia.

3. Feeling aggrieved of the order of the trial Court, the appeal as pointed out above was filed but through a detailed order, the learned Additional District Judge came to the conclusion that the revision petitioners were given a number of opportunities to conclude their evidence but they failed to do so and as such, their evidence was rightly closed and the case was decided correctly on its merits.

4. Learned counsel for the petitioners while relying on 1992 CLC 1241 (Lahore) Wahid Bakhsh v. Judge, Family Court/Senior Civil Judge, Multan and another, contended that the date on which the penal provision contained in Order 17, rule 3, C.P.C. was applied, was never an 'adjourned date' at the request of the petitioner, and therefore, the evidence could not be closed as the case was adjourned in routine.

5. Learned counsel for the respondents has, however,, submitted that the petitioners were given about two years to conclude their evidence but they failed to do so which showed their disinterest to conclude the proceedings and merely to prolong the agony of the widows. In reply to the authority, cited at the Bar, it was contended that two witnesses were present on the adjourned date but those were not examined and since there was no other witness, therefore, the case was again adjourned for concluding the remaining evidence and as such, it could not be said that the adjournment was given in routine but will be deemed to have been given at the request of the petitioners. It was, therefore, submitted that the rule laid down in the authority was distinguishable from the facts of the present case.

6. I have gone through the order sheets, of the trial Court and the evidence brought on record by the respondents widows. It may be pointed out here that the procedure for dealing with the disposal of the petition for succession is given in section 373(1) of the Succession Act, 1925 which inter alia lays down that "the Court shall fix a day for the hearing thereof and cause notice of the application and of the day fixed for the hearing-- (a) to be served on any person to whom, in the opinion of tire Judge, special notice of the application should be given; and (b) to be posted on some conspicuous part of the Court-house publish in such other manner, if any, as the Judge, subject to any rules made by the High Court in this behalf, thinks fit, and upon the day fixed, or as soon thereafter, as may be practicable, shall, proceed to decide in a summary manner the right to the certificate." Likewise subsection (3) of the section supra runs as follows:-- "If the Judge cannot decide the right to the certificate without determining questions of law or fact which seems to be too intricate and difficult for determination in a summary proceeding he may nevertheless grant a certificate to the applicant if he appears to be the person having prima facie the best title thereto." It follows from the above section that the Court has to follow the summary procedure and if it cannot resolve any intricate question of law and facts, it may nevertheless grant a certificate to the applicant if he appears to be a having prima facie the best title thereto. However, while granting person certificate to the person who has prima facie title, would leave the other person to establish his right by a regular suit. This means that the Court has to deal with the matter summarily leaving aside the intricate question of law and facts and only issue certificate to such party who has a prima facie case of entitlement to such certificate. In the instant case, both the widows through unimpeachable evidence have proved that they were the legally wedded wives of the deceased Manzoor Ahmad Khan Wattoo and as such, they have rightly been granted succession certificate to the extent of their legal share of 1/8th in the movable property left be the deceased.

7. Now coming back to the technical aspect of the case, it may be pointed out that though the matter was to be decided summarily under the Succession Act, 1925 but the petition having been instituted on 5-4-1990 was finally decided on 29-4-1993 i.e. after about three years. This is by no means a summary trial and the petitioners were given much indulgence to complete their evidence for which they availed the first opportunity on 8-3-1992 and thereafter, they availed a number of opportunities on the payment of. conditional costs and also after a warning to them that if they failed to examine their evidence, their case would be closed. It is in this scenario that their evidence was ultimately closed on 6-4-1993 when they had failed to avail the final and last opportunity on 23-2-1993 after they had declined to examine the two witnesses in attendance whose attendance was got discharged at their request and the case was adjourned as pointed out above for the remaining evidence. Even on 6-4-1993, they were not in a position to examine their evidence, whereupon, without specifying the provisions of Order 17, Rule 3, C.P.C., their evidence was closed.

8. In the light of the above facts, it cannot be said by any stretch of imagination that they were not given sufficient opportunities to examine their evidence lest to say that the case was not adjourned on their request on the date previous to the closing of their evidence. In fact either they were highly indolent and careless or they had no evidence to rebut the evidence of the respondent's widows who had proved their marriages with the deceased through unimpeachable evidence as discussed by the Courts below.

9. In the light of what has been said above, it cannot be said that there was any legal infirmity in any of the impugned orders passed by the Courts below which acted quite judiciously while dealing with the matter in hand. The revision petition being misconceived is dismissed with costs throughout. Q.M.H./M.A.K./A-28/L Revision dismissed.