1998 PLP 724 (SCMR)

MUHAMMAD ILYAS, J.

This petition has arisen out of a suit for partition of certain property left by one Muhammad Shafi deceased. The suit was filed by respondent No.1, Mst. Zohra Begum against the petitioners, Muhammad Akbar and others. It involved a dispute relating to the shares of legal heirs of Muhammad Shafi. Mst. Saleema Shafi and Mst. Zohra Begum are some of his legal heirs. The case of Mst. Zohra Begum is that Mst. Saleema Shafi had surrendered her share in her (Mst. Zohra Begum's) favour by executing a surrender deed. An application was made to amend the plaint so as, to make an averment in this regard. The application was allowed and amended plaint was filed by adding paragraph 5-A therein in regard to the plea of surrender. Then, another application was filed for framing of an additional issue in the light of the above averment but the same was rejected. Subsequently, yet another application was submitted seeking permission to produce, in evidence, the surrender deed but prayer in this regard was not allowed. Ultimately, a preliminary decree was passed by ignoring the plea of surrender raised by Mst. Zohra Begum.

2. The preliminary decree was challenged by means of appeal before an Additional District Judge but without success. While dismissing the appeal, however, the learned Additional District Judge made the following marks:

"The upshot of the above discussion is that the appeal fails and the same is hereby dismissed with costs. I, however, make it clear that decree shall not be deemed to have been passed in favour of the respondents as prayed for. The fact that the share of Mst. Saleema Begum is to devolve upon all the heirs in accordance with law shall also be kept in view by the learned Trial Court at the time of passing final decree and similarly the shares of the parties in the rent deposited in Court shall also be determined.

3. Feeling aggrieved by the appellate judgment and decree, both parties went in revision before the Lahore High Court. On 24th April; 1993, the civil revision filed by the respondents, Mst. Zohra Begum and others, was accepted with the observation that the civil revision filed by the petitioners, Muhammad Akbar and others, would be decided independently, on merits. The petitioners challenged the order of the High Court by filing a petition for leave before this Court but their petition in this behalf was dismissed.

4. The respondents' civil revision, namely, C.R. No.650/1993, was decided by a Single Judge of the High Court on 20th July, 1994. He accepted the revision petition, set aside the judgments and decrees of the two Courts below without disturbing findings of the said Courts on Issues Nos. l to

10. He, however, set aside their finding on Issue No.11 and remanded the case to the learned Trial Court with the direction that it shall frame an additional issue in the light of the averment contained in paragraph 5-A of the plaint, record evidence of the parties and then decide the additional issue before passing a fresh judgment and decree in the suit. The present petition has been made by Muhammad Akbar, etc., for leave to appeal against the judgment passed by the learned Judge in Chambers.

5. It was contended by learned counsel for the petitioners that the surrender deed was not a genuine document and thus, there was no justification for setting aside the judgments and decrees of the first two Courts and remanding the case for fresh decision in the manner set out in the impugned judgment.

6. The plea of surrender raised by Mst. Zohra Begum was of vital importance. This was appreciated by the learned Trial Court also by allowing amendment of the plaint so as to incorporate therein the plea of surrender Her plea was controverted by the other side. It was, therefore, a fit case for framing an additional issue regarding the question of surrender; but the learned Civil Judge had, obviously, committed material irregularity in not striking the additional issue and not allowing the parties to produce evidence in support of their respective contentions. The learned Additional District Judge, who decided the appeal also did not take care of serious shortcoming of the learned Trial Court and upheld the judgment and decree passed by it. The learned Judge in Chambers had discussed the matter, in detail, before reaching the conclusion that the two Courts below had committed material irregularity in not adverting to the plea of surrender in a just and proper manner. To our mind, his view is not open to any legitimate exception. We, therefore, refuse to grant leave to appeal against his judgment and dismiss this petition. A.A./M-96/L Leave refused.