P L D 2009 Lahore 168 (PLP)

MIAN SAQIB NISAR, J.

All the petitions bearing W.P. No.141/2006, C.R. No.39/2006 and C.R. No.379/2006 involve common questions of law and facts, therefore, are being disposed of together.

2. Haji Muhammad Rafique died on 12-10-1999; he admittedly was survived by six sons and two daughters from his first wife, namely, Mst. Saira Bibi, while there is a dispute between the parties if he had divorced his second wife Mst. Zahida Bibi and Sohail Rafiq is his son or not from Zahida Bibi. Anyhow, after the death of Muhammad Rafiq, a mutation No.5352 was attested on 23-12-1999, whereby his estate (the suit property comprising of land and building) inter alia, was mutated in favour of Mst. Zahida Bibi, Sohail Rafique, Muhammad Shafique (sons), Shahida Rafique and Sobia Rafique (daughters), (the children born to Zahida). The respondents, who are the sons from Mst. Saira Bibi, filed two suits claiming that Zahida Bibi was divorced by Rafique during his life time, while Sohail is not his son, as he was born to Zahida on, account of her previous marriage with one Sarwar Ali, therefore, both are not entitled to the inheritance. The two suits were consolidated.

3. During the pendency of the suits, it came to the notice of the petitioners that the respondents had earlier filed a suit against Muhammad Rafique and procured a consent decree dated 26-10-1999 in their favour, according to which the disputed property was declared to have been gifted to them by Rafique. The petitioners challenged this judgment and decree through filing an application under section 12(2) C.P.C.

4. After the trial in all the matters, the suit of the respondents that Mst. Zahida Bibi had been divorced by the deceased Muhammad Rafique during his life time was allowed, while their claim that Sohail Rafique was not the son of Muhammad Rafique, was disallowed by the learned Trial Court, vide judgment and decree dated 11-3-2005; while the application of the petitioners under section 12(2), C.P.C. was also dismissed the same day. Aggrieved, the petitioners filed one appeal and a revision (challenging the order under section 12(2), C.P.C.), whereas the respondents filed one appeal; all the above have been dismissed on 1-10-2005 by the learned Addl. District Judge maintaining the judgment/order and decrees of the learned Trial Court. Hence W.P. No.141/2006 arises out of the proceedings under section 12(2) C.P.C., C.R. No.39/2006 is against the judgment and decree in the suit of the respondents declaring that Mst. Zahida was divorced by the deceased, while C.R. No.379/2006 has been filed by the respondents against the judgment and decree whereby Sohail Rafique was declared to be the son of Muhammad Rafique.

5. It is argued by the learned counsel for the petitioners that the two Courts below have failed to correctly read the record of the proceedings under section 12(2), C.P.C. and that of the suit of the respondents decreed in their favour on 26-10-1999, which on the face of it speaks volumes about their fraud etc. practiced in obtaining the said decree, but has been ignored; the counsel for the parties have also made submissions in attacking and defending the impugned orders/judgments and decrees, which shall be duly reflected in this judgment.

6. Heard. The suit by the respondents was filed against Muhammad Rafique on 26-7-1999 and summons/notices were directed to be issued to him for 28-7-1999, from the record it transpires that neither those were issued nor were served upon him, rather Muhammad Rafique allegedly of his own appeared before the Court on the said date, filed a conceding written statement through his two counsel and made an oral statement before the Court as well, learned counsel for the respondents, however, states that the suit was not decreed upon the conceding statement alone, but is based upon the decision of the referee as well. Anyhow, the case was adjourned for 18-9-1999 for final arguments, whereafter for the same purpose it was postponed to 1-10-1999; on this date the record reveals that following order was passed:-- On the adjourned date, a "faisla Referee" was filed by Ijaz Khalid Cheema, Advocate; one or two adjournments were granted for submission of the proof of Rafique's ownership qua the property and ultimately the judgment reproduced below was passed on 26-10-1999:-- "The suit was contested by the defendant. The parties, however reached a. compromise to decide the case through referee. Ch. Ejaz Khalid Cheema, Advocate was appointed referee by the parties. The learned referee filed his award on 8-10-1999 in favour of the plaintiffs. The award operates to create right, title and interest in property, therefore it is registerable under the provisions of Sec:17 of Registration Act read with sections 14, 17 and 20 of the Arbitration Act 1940. This suit of declaration is decreed on the basis of award dated 8-10-1999. Since the decree is based upon the award, it shall be registerable under the provisions of Registration Act within four months. No order as to costs. File be consigned to the record room." It may be pertinent to state here that the suit was never contested by Muhammad Rafique, as is mentioned in the opening part of the noted judgment, rather as per his alleged oral and written statement he conceded the gift in favour of the respondents; besides the "faisla" is only confined about providing future needs of Muhammad Rafique; there is no mention in the "faisla" if the property was gifted to the respondents (plaintiffs of that case), but strangely the Court while passing the judgment dated 26-10-1999 misread the "faisla" in this behalf; illegally considered it as an award, whereas it is not, and based the judgment and decree thereupon. Besides the above, the notable facts, which highlights that the decree dated 26-10-1999 was not procured by the respondents in a lawful manner, rather is tainted by fraud and misrepresentation, are that the suit was instituted on 26-7-1999, in which notices/summons were directed to be issued to Muhammad Rafique for 28-7-1999, there is no proof if those were issued or served upon him; still from the record he is shown to have appeared on the said date and allegedly filed a written statement admitting the gift, an oral statement to the same effect was also made by him, though there was no such occasion and requirement of such statement in the presence of the written statement; this obviously is an overdoing. However, in both these statements some extraneous facts, such as about the divorce to Zahida and that he only has one son and two daughters from the marriage and about his maintenance claim from the income of the said property were also mentioned, meaning thereby that an abortive attempt was made to exclude Zahida and Sohail Rafique from his inheritance, which in the circumstances of the case was not relevant to be mentioned in the written statement/oral statement and undoubtedly seems to be with ulterior object and mala fide intention. The written statement has been filed on behalf of Muhammad Rafique, through M/s Ch. Muhammad Afzal Cheema and Ch. Muhammad Rehmat Ali Khan, Advocates, but they have not been examined to prove, if it was prepared by them for and on behalf of Muhammad Rafique and upon his instructions and signed/verified by him, besides it is not disputed by the counsel for the respondents that the power of attorney of the two named lawyers is not on the record. Interestingly, the conceding statement of Muhammad Rafique has not been recorded by the Presiding Officer; the name of the counsel out of the two who was present at that time is not mentioned, the said counsel has not been examined as a witness to depose if that statement was made by Rafique, only the National Identity Card No.302-30-575705 of Rafique is mentioned at the end of the statement without any copy having been retained on the file; even it is not noted by the learned Judge or the Reader that Muhammad Rafique was identified on account of the N.I.C. Mr. Ijaz Khalid Cheema, who is stated to have acted as a referee between the parties, again has not been examined by the respondents to prove either the agreement for reference dated 28-7-1999 or his "faisla" Exh.R10; moreover, in the opening line of his "faisla" he states that: There is no order on the record if he was ever appointed or was directed by the Court to act as a referee in the case.

7. The view formed by the Courts below that it was the duty of the petitioners to have proved that Muhammad Rafique did not file the written statement and appeared before the Court and they should have' got his signatures and thumb impressions examined through expert and that the statement of the Reader of the Court, namely, Muhammad Aslam/RW2 has established that it was Muhammad Rafique, who appeared and recorded his statement, is absolutely misconceived, because the statement of the petitioners that Muhammad Rafique has not filed his written statement and appeared before the Court, was sufficient to discharge the negative burden and it was thereafter incumbent upon the respondents to positively establish that it is he who had come to the Court despite the non-issuance and non-service of the summons/notices and filed the written statement, made an oral statement, engaged the two counsel, entered into an agreement for appointing Mr. Ijaz Khalid Cheema as a referee etc., but as has specified no such positive evidence was led. The statement of R.W.2 does not help the case of the respondents as admittedly Muhammad Rafique was not personally known to him and there is no noting on the file if Muhammad Rafique was identified on the basis of the Identity Card; his bald statement much after the happening of the event, does not improve the respondents' case. Besides, it is the respondents, who had to seek the expert opinion about the signatures/thumb impressions of Muhammad Rafique on his written/oral statements and the lapse on their part cannot be considered as a vice of the petitioners' case. It may not be out of place to mention here, that before the decree dated 26-10-1999, Muhammad Rafique has died on 12-10-1999, and his admitted legal heirs such as two daughters, namely, Shahida Rafique and Sobia Rafique and son Muhammad Shafique were not even brought on the record, and even it is not spelt out from the record, if the fact of his death was disclosed to the Court before the passing of the decree, therefore, the decree was obtained against a dead person.

8. The above mentioned facts speaks loud about the fraud practiced by the respondents in obtaining the impugned judgment and decree, but have been glaringly ignored by the two Courts below, therefore, the case squarely falls within the purview of non-reading and misreading of the evidence on the record, thus the impugned orders, are set aside with the result that the application of the petitioners under section 12(2), C.P.C. shall be deemed to have been accepted and they shall be entitled to file a written statement in the matter and the case should be proceeded on merits.

9. In C.R. No.39 of 2006, the case set out by the respondents in the plaint is, that Muhammad Rafique on 18-3-1999 had divorced Mst. Zahida Bibi, sent a notice of divorce followed by another dated 16-5-1999 repeated to the Chairman, Union Council, upon which the proceedings were conducted and as no reconciliation could be achieved, Talaq became effective on 21-8-1999. In the written statement Mst. Zahida Bibi denied the contents of the relevant paragraphs and stated that the Chairman, Reconciliation Committee enabled a patch up between her and Muhammad Rafique, however, she categorically controverted that the notice of Talaq dated 16-5-1999, which she claimed to be based upon fraud and categorically mentioned that she had made an application to the Chairman, Union Council, about the notice and the so-called proceedings on that account, who on inquiry held that all this was fake and fictitious. On the basis of the pleadings of the parties, issues were framed, one of the respondents Iqbal Ahmad appeared as P.W. 1 and deposed that Muhammad Rafique had divorced Mst. Zahida Bibi during his life time. In the cross-examination he states that he has been appearing before the Committee along with his father and that the reconciliation proceedings took place in March, 1999 before the Secretary, whose name was Toor. In documentary evidence the respondents produced the alleged notice of Talaq dated 16-5-1999, in which it is mentioned that prior to this a notice dated 18-3-1999 was sent to the Chairman through post; but, on inquiry it transpired that the same is not available on the record, therefore, another notice as reminder is being sent. Exh. P2 is a copy of the register, in which an entry dated 20-5-1999 appears envisaging about a divorce matter pertaining to Haji Muhammad Rafique against one Majeedan Bibi; Exh.P3 is the alleged proceedings of the Chairman before the Conciliation Committee and Exh.P5 is some statement of Haji Muhammad Rafique dated 19-8-1999 before the Committee, that he does not want a reconciliation, and therefore, the matter be finalized; Exh. P4 is the Divorce Certificate while Exh.P6 is allegedly a statement of Mst. Zahida Parveen that she wants to patch up with her husband, which allegedly is thumb marked by her. The other documentary evidence pertains to the proceedings of the suit for declaration, which the respondents filed against their father, in which the decree dated 26-10-1999 was alleged to have been passed in their favour. There is absolutely no proof on the record if Muhammad Rafique had pronounced Talaq upon Zahida on 18-3-1999. No independent witness in this behalf has been examined, though he in the cross-examination has stated that: The advocate has not been examined; no copy of this notice has been brought on the record; there is neither any proof who authored the notice, it was sent/posted to Zahida or the Union Council nor is there any entry about the receipt of the notice in the record of the Council. About the notice dated 16-3-1999 it is not established if it bears the signatures or thumb impressions of Rafique, it is authored by him and if not who is the subscribe of the same, when it was sent/posted to Zahida or the Union Council. No postal record has been produced. The only reason that an entry appears in the register of Union Council does not mean if it is the notice which was sent by Rafique, because the copy of the notice produced does not carry the signatures of the Chairman, rather allegedly of the Secretary who has not been examined. Moreover, all the documents of the proceedings before the Union Council are not signed by the Chairman and upon the inquiry it has been found that such proceedings are not genuine, thus no sanctity in law can be attached thereto. Even otherwise, an important admission has been made by P. W.1/Igbal Ahmad in his cross-examination that the proceedings before the Committee took place in March 1999, whereas according to those produced by the respondents it pertains to May 1999; even according to Iqbal Ahmad, the matter was before the Secretary by the name of Toor, whereas the Secretary is not a part of the Conciliation Committee under the law and had no jurisdiction to proceed with it. Even otherwise, as mentioned earlier according to the order of the Chairman, Conciliation Court/Administrator, Municipal Committee, Daska, dated 18-1-2000 (Exh.D13), passed on the application of Mst. Zahida Bibi (Exh.D14) dated 21-12-1999, such proceedings-have been found to be absolutely fake. I am not convinced by the argument of the learned counsel for the respondents that as Zahida Bibi in the written statement has admitted the Talaq, therefore, the proceedings and the Certificate of Talaq should be considered valid; in this regard, it may be specified that the admission is qualified and it is stated that the matter was patched upon on the intervention of the Chairman,, Conciliation Committee. This when considered in the light of the statement of P.W. 1 that the proceedings took place in March, 1999, seems to be the true position. All these important aspects have not been considered by the two Courts below and have totally ignored to read the evidence in the legal perspective. As admittedly Rafique and Zahida were married and the respondents have failed to prove the termination of the marriage during the lifetime of the former, therefore, the suit of the respondents was liable to be dismissed. Resultantly, by allowing this petition the impugned judgments and decrees of the two Courts below are set aside and the suit of the respondents is dismissed.

10. As regards C.R. No.379/2006 filed by the respondents praying that by setting aside the judgments and decrees of the two courts below Sohail Rafique should be declared not being the son of Muhammad Rafique, and in this behalf reliance having been placed upon the Birth Certificate dated 20-3-1978 (Exh.P17) and Nikahnama of Mst. Zahida Bibi with the deceased Muhammad Rafique (Exh.P18), suffice it to say that according to the specific averments of paragraph 2 of the plaint it is alleged that Mst. Zahida Bibi was married to Muhammad Rafique on 10-4-1978 and at the time she had a son from his previous husband Sarwar Ali, who was then aged one month and five days, but according to the Birth Certificate (Exh.P17) produced by the respondents themselves, the date of birth of Sohail Rafique is 20-3-1978 and calculating this time it does not correspond to one month and five days. Moreover, there is no proof on the record if Zahida was married to Sarwar Ali; no Nikahnama pertaining to the alleged marriage has been produced; besides, Sarwar Ali according to paragraph 3 of the plaint was alive, but he has not been examined. Furthermore, in the birth certificate and even in the Nikahnama there is a reference made to Majeedan Bibi alias Zahida Parveen alias Zahida Bibi, the respondents have led no evidence to establish if Zahida was/is also known as Majeedan Bibi. No witnesses of Zahida's with Sarwar or Rafique has been examined. It may not be out of place to mention here that Zahida Bibi has denied the marriage with Sarwar. As against the above, the respondents have produced in evidence the copies of agreement to sell Exh.D1, Identity Card of Zahida Parveen Exh.D2, Form "B" Exh.D3, Identity Card of Sohail Rafique Exh.D4, Certificate of Matriculation of Sohail Rafique Exh. D5, Certificate of Intermediate Exh.D6, Certificate Awarded by District High School Headmasters Association, Sialkot Exh.D7, Certificate awarded by District High School Headmasters Association, Daska Zone Exh.D8, Certificate of Merit awarded by District High Schools Headmasters Association, Daska Zone Exh.D9, Admission Form Exh.D10 and Register Municipal Committee signed by the deceased Exh.DI1, which has been considered by the two Courts below and proper findings of facts have been founded thereupon. Thus, this petition has no merits and is hereby dismissed. M.B.A./Z-7/L Order accordingly.