2009 PLP 1273 (CLC)

MAULVI ANWARUL HAQ, J.

For purposes of this judgment, reference to the pleaded facts in detail would not be necessary. Suffice it to say that respondents Nos. 1 to 5 (hereinafter to be referred to as the plaintiffs) filed a suit against the petitioner and the other respondents. According to the plaint, the last male owner of suit land was Zain-ul-Abidain and the plaintiffs are the widow and children of his son Nasir-ud-Din who pre-deceased his father on 27-8-1965 whereas Zain-ul-Abdidin died on 28-1-1972. They accordingly claimed the share of the said son of Zain-ul-Abidin in his estate. Only the petitioner contested the suit. The plea was that the plaintiffs are not the legal heirs of Zain-ul-Abidin. Issues were framed. Evidence of the parties was recorded. The plaintiffs were found entitled to 7/52 share in the said house. A preliminary decree was accordingly passed on 14-4-1990. An appeal filed by the petitioner was dismissed by a learned Additional District Judge, Lahore, as barred by time on 1-9-1990. Civil Revision No.827 of 1991 was dismissed by this Court on 7-11-1994. Thereafter the proceedings were conducted and ultimately the property was sold. On receipt of sale proceeds the shares of the parties in the amount to be disbursed to them were worked out on 23-1-1999. A formal final decree was drawn up on 9-3-1999. Against this final decree the petitioner again filed an appeal. In the course of this appeal, an argument was raised that in view of the judgment of the Federal Shariat Court declaring Section 4 of the Muslim Family Laws Ordinance, 1961 to be repugnant to the Injunctions of Islam and as such the very preliminary decree be declared to be void. The argument was repelled by a learned Additional District Judge, Lahore, dismissing the appeal on 11-3-2000.

2. Learned counsel for the petitioner has tried to argue with reference to the said judgment of the Federal Shariat Court in the case of Allah Rakha v. Federation of Pakistan and others PLD 2000 FSC 1 that the preliminary decree being based on a claim which is repugnant to the Injunctions of Islam, the entire proceedings are without jurisdiction. Learned counsel for the plaintiffs-respondents supports the impugned judgment of the learned Additional District Judge.

3. I have gone through the records. There was no denial that the plaintiffs are the widow and children of Nasir-ud-Din who had pre-deceased his father Zain-ul-Abidin. The succession opened on 28-1-1972 on the death of Zain-ul-Abidin and in terms of section 4 of the Muslim Family Laws Ordinance, 1961, the children of the said pre-deceased son were entitled to receive the share of their father in the estate of Zain-ul-Abidin per stirpes.

4. The preliminary decree as also the final decree is quite in order except that 7/52 share of Nasir-ud-Din in the estate of Zain-ul-Abidin will devolve only on his children and not the widow in terms of section 4 of the said Ordinance.

5. Coming to the said contention of the learned counsel, it is admitted at all hands that an appeal against the said judgment of the Federal Shariat Court is pending before the Shariat Appellate Bench of the Honourable Supreme Court of Pakistan. Under Article 203-D(2) of the Constitution, the Federal Shariat Court while declaring any provision of law to be repugnant to the Injunctions of Islam has to specify a date on which the judgment is to take effect. Such a date specified by the Federal Shariat Court in the said judgment is 31-3-2000. In the present case, the preliminary decree was passed by the trial Court on 14-4-1990 and finally affirmed by this Court on 7-11-1994. The final decree was also passed before the said date. Apart from this under proviso to the said Article 203-D(2) the decision of the Federal Shariat Court shall not be deemed to take effect wherein an appeal has been preferred to the Supreme Court before the decision of the said appeal.

6. The civil revision is accordingly dismissed but without any orders as to costs. M.B.A./Q-13/L Petition dismissed.