2015 PLP 188 (MLD)

RAUF AHMAD SHEIKH, J.

The petitioner has assailed the vires of judgment and decree dated 11-6-2004 passed by the learned District Judge, Attock, whereby an appeal filed by her against the judgment and decree dated 18-2-2004 of the learned Civil Judge, Attock was dismissed.

2. The facts in brief as emerge on perusal of the record are that the appellant filed a suit for declaration to the effect that mutation of inheritance No.367 dated 25-5-1989 Mauza Bhattoo, Tehsil Fateh Jang, District Attock regarding the estate left by deceased Karma son of Ameer Caste Arain Resident of Daurdad Bhattoo, Tehsil Fateh Jang, District Attock is illegal, against facts, based on fraud, void and ineffective qua the rights of the plaintiff/petitioner and that she being real daughter of Karma deceased is entitled to inherit 1/2 share of the Estate left by him and as such the impugned mutation is liable to cancellation/correction. It was stated that Karma died in the year 1988 and mutation of inheritance No.367 dated 25-5-1989 was attested in favour of defendants/respondents Nos.2 to 16; that at the time of demise of her father, the plaintiff/ petitioner was alive but the defendants/respondents Nos.2 to 16 concealed this fact and got the mutation attested through fraud and in connivance with the revenue officials; that the attestation of mutation was kept secret from her; that she filed a suit on 11-3-2002 but withdrew the same with permission to file the fresh suit.

3. The defendants Nos.2 to 16 initially filed an admitting written statement and conceded the averments made in the plaint but subsequently along with others respondents filed the fresh written statement in which all of them have contested the suit and denied the contentions of the plaintiff/petitioner. The learned trial court framed the following issues:-- (1) Whether mutation of inheritance No.367 dated 25-5-1989 in favour of defendants Nos.2 to 16 is against facts and law, result of fraud and inoperative upon the rights of the plaintiff and liable to correction? OPP (2) Whether plaintiff is entitled to 1/2 share of the suit land as being the daughter of deceased Karma? OPP (3) Whether plaintiff has no cause of action? OPD 2 to 16. (4) Whether the suit is not maintainable in its present form? OPD (5) Whether the suit is bad for non-joinder of necessary parties? OPD (6) Whether the suit is filed just to harass the defendants and defendants are entitled to special costs under section 35-A C.P.C.? OPD (6-A) Whether this Court has got no jurisdiction to try this suit? OPD (7) Relief.

4. On 3-6-2003, the learned trial court closed the evidence of plaintiff/petitioner under Order XVII, Rule 3, C.P.C. and proceeded on to dismiss the suit. The appeal filed by the petitioner met the same fate.

5. The learned counsel for the petitioner has contended that the learned trial court committed material irregularity and illegality in applying the penal provisions of Order XVII Rule 3, C.P.C. in haste and that the learned District Judge also failed to rectify the illegality without bringing under consideration the material available on the record; that valuable hereditary rights of the plaintiff/petitioner are involved in the lis so she should have not been non-suited on technical grounds; that superior Courts of country have held time and again that such cases be decided on merits rather than technicalities and that no ground was available to close the evidence as sufficient opportunity to produce the evidence was not given.

6. The learned counsel for the respondents Nos.2 to 16 has contended that in fact Mst. Ghulam Sakina has neither filed the suit nor the instant civil revision and some one else is carrying on the litigation in her name through impersonation; that the evidence was not produced due to fear that Mst. Sakina Bibi was not available and that the learned trial court was not left with any other option but to close the evidence under Order XVII, Rule 3, C.P.C.

7. The perusal of the record reveals that after framing of the issues on 30-11-2002, the suit was transferred and the transferee court adjourned it to 8-5-2003. On 8-5-2003, an application for amendment of the plaint was filed, which was disposed of on the same day. The defendants/respondents moved an application under Order VII, Rule 11, C.P.C., which was adjourned to 3-6-2003 and was decided on the same day. The evidence was not produced for the first time on date of hearing i.e. 29-10-2003, the learned members of the bar were on strike so the adjournment took place. On 5-1-2004, the plaintiff/petitioner was not present. One Akbar claiming to be brother's son of the plaintiff/ petitioner appeared along with Clerk of the Counsel and the suit was adjourned on 5-1-2004. It is an admitted fact that deceased Gamman had no son so the relationship of Akbar with petitioner is not known. It is not clear that as to why the learned trial court marked his presence although he does not appear to be her attorney. On the next date of hearing i.e. 8-2-2004 the plaintiff/petitioner was not present so the learned trial court proceeded on to close the evidence and dismissed the suit through impugned judgment. The slipshod manner in which the suit involving valuable rights of a female was dismissed, cannot be approved. The learned trial court in the given circumstances, when the plaintiff/petitioner was not duly represented on 5-1-2004 could have only proceeded under Order IX, Rule 8, C.P.C. instead of closing the evidence and dismissing the suit. The matter pertains to the hereditary rights of the plaintiff/petitioner, who claims that she is sole daughter of the deceased Gamman and the respondents Nos.2 to 16 are his residuaries being collaterals so were entitled to 1/2 share only. Unfortunately, the females i.e. daughters, sisters and widows are not given their due shares in our society. The suit filed by them should be decided after affording them reasonable opportunities to produce evidence to enable them to substantiate their contentions. In this suit only one adjournment has been granted in presence of her counsel and on his request and thereafter, the Clerk has been appearing on her behalf along with one Akbar. It is not even known as already held above as to whether said Akbar had any relationship with her or not. The learned trial court committed material irregularity causing gross miscarriage of justice in applying the provisions of Order XVII, Rule 3, C.P.C. in haste. The learned District Judge also failed to exercise the jurisdiction vested in him by ignoring the above legal infirmity and upholding the order of the learned trial court. For the reasons supra, both the judgments and decrees passed by the Courts below are not sustainable and are accordingly set aside by accepting the instant civil revision. Consequently, the suit is remanded to the learned trial court. It is directed that the learned trial court will provide sufficient opportunity to the plaintiff/petitioner to lead the evidence as the matter is very old. The suit will not be adjourned in routine and the adjournment would not be granted unless reasonable ground as provided under section 17, Rule 1, C.P.C. for the same is available. The learned trial court will make all out efforts for decision of the suit within three months from the date of receipt of the copy of this order under intimation to DR (Judicial) of this Court. The copy of the order be transmitted to the learned trial court immediately through the learned District Judge, Attock. JJK/G-23/L Case remanded.