2020 PLP 2501 (YLR)

RASAAL HASAN SYED, J.

This Constitutional petition calls into question 20.4.2019 and 24.1.2020 whereby the name of the petitioner was excluded from the name of the list of legal heirs and the order was affirmed in revision.

2. Late Muhammad Javed filed a suit for cancellation of sale deed dated 23.10.2000. During the pendency of the suit he died on 21.6.2018. During impleadment of his legal heirs controversy arose with regard to the status of the petitioner as his widow arose. On 14.3.2019 Syed Muhammad Shah, Advocate, recorded his statement without oath to the effect that Shaheen Bibi had been divorced allegedly by Muhammad Javed vide divorce deed dated 17.2.1999 and being so she could not fall in the list of legal heirs. On 20.4.2019 the learned civil judge passed the order to the effect that amended pleadings be filed by impleading legal heirs except Shaheen Bibi petitioner. This order was challenged in civil revision by the petitioner which was dismissed by the learned Addl. District Judge vide order dated 24.1.2020.

3. Learned counsel for the petitioner submitted that the petitioner was already a party in the proceedings and that without any investigation or inquiry her name was excluded from the list of legal heirs on the based on forged divorce deed, original documents of NADRA were excluded, and the petitioner was not allowed the right of cross-examination to the opposing counsel whose statement was considered to be sacrosanct unjustifiably. Submits that the controversy could only be resolved by framing issues and recording of evidence and that the petitioner could not be directed to file a suit for declaration. Lastly, it was argued that the learned Addl. District Judge did not consider the actual requirement of law and illegally ignored that the order was against the rule of natural justice and due process. Learned counsel for the respondents in the course of arguments did not oppose the proposition that the controversy should be resolved through issues and evidence.

4. After hearing learned counsel for the parties in attendance it is observed that the learned trial court simply relied upon the objections raised and proceeded to direct the filing of amended pleadings by excluding Shaheen Bibi and incorporating the names of the Khursheed Bibi and legal heirs of Muhammad Atif. The revisional court also affirmed the order with the observation that the petitioner may assail the divorce deed in the civil court and adopt the independent remedy for relief.

5. It is manifest that the courts below proceeded on mere assumption as to the genuineness of the disputed divorce deed and put the petitioner under an onus to seek a declaration from the court of law; little appreciating that there was a serious factual controversy. Petitioner specifically denied the genuineness of the document, respondents were banking upon the said document and were obviously under an obligation to prove the document to be genuine and it was only after the proof of the document that the petitioner could be excluded from the proceedings. Another factor was that the petitioner was relying on the original NADRA record which in her perception contradicted the stance of the respondents. In these circumstances, it was obvious that the parties were seriously involved in factual controversy and therefore the learned trial court could not casually accept one side's viewpoint or nonsuit the petitioner without any inquiry or opportunity of evidence. It was only due to this reason that the learned counsel for the respondents did not contest the course proposed for the disposal of the controversy, by remitting the matter to the court below and for decision after framing of issue and opportunity of evidence to the parties.

6. Even otherwise the impugned order on the face of it was violative of the rule of natural justice and due process. The courts below committed serious error of law in causally denying the petitioner the right to present her case and by excluding her from the proceedings. For the reasons above, this writ petition is accepted. The impugned orders are declared to he without lawful jurisdiction and accordingly annulled. In result, the case is remanded to the learned civil judge who shall frame an issue on the controversy as to the status of the petitioner as legal heir of the deceased Muhammad Javed, allow evidence to both sides and decide the matter afresh on the basis of evidence to be produced and in accordance with law. MH/S-34/L Case remanded.