1. Ch. Ijaz Ahmad, J.--The detailed facts have already been mentioned in the impugned judgment.
2. However, the necessary facts out of which this petition arises are that Syed Aal-e-Hassan died on 29.12.1999 leaving behind following legal heirs:-- (a)Mst. Munawar Jehan widow.
3. (b)Mst. Zahida Bano daughter.
4. (c)Mst. Ghausai Hassan daughter.
5. 2.Respondent No. 1 filed an application for the grant of succession certificate in the Court of Senior Civil Judge Lahore on 13.9.94 with respect to following accounts lying in the name of her late husband.
6. Amount Account# Bank Rs. 2,11,372.31 PLS A # 6058 National Bank of Pakistan Township Branch, Lahore.
7. U.S Dollars 3759.22 Standard Chartered Bank,Shahrah-e- Quaid-e- Azam,Lahore.
8. 3.The learned trial Court granted succession certificate vide order dated 20.10.94. The certificate was also issued to her vide order dated 23.10.94, the petitioner and her mother filed application before the trial Court through their special attorney (Abdul Waheed) for the cancellation of the certificate on the ground that petitioner and her mother were not impleaded as party to the succession certificate. During the pendency of the application, allegedly compromise arrived between the parties. Compromise deed was filed in Court. The learned Court accepted the same vide order, dated 2.4.1995. Petitioner being aggrieved filed an application u/S. 12(2) CPC before the trial Court on 15.7.1996 against the aforesaid order. The learned trial Court dismissed the application vide order dated 30.1.99. Petitioner being aggrieved filed an appeal in the Court of Addl.
9. District Judge Lahore who converted the same into revision petition and accepted the same vide judgment dated 12.7.2000 and remanded the case to learned trial Court for its fresh decision after recording evidence of parties after giving them reasonable opportunity on merit.
10. 4.Respondent No. 1 being aggrieved filed W.P. No. 20152 in the learned High Court. The learned High Court accepted the same vide impugned judgment dated 30.1.2002 and upheld the order of the trial Court wherein the application filed by the petitioner was dismissed. Hence, the present petition.
11. 5.Learned counsel for the petitioner submits, that the revisional Court had passed the judgment in favour of the respondent with cogent reasons after judicial application of mind. He further urges that contents of the compromise deed itself reveal that respondent and her mother had given their legal, inherited right according to the injunctions of Islam in the property of her father. He further urges that constitution petition was not maintainable before the learned High Court against the remand order. He further urges that Addl. District Judge had converted the appeal of the petitioner into revision petition and constitution petition could not be maintainable against the order passed by the Addl. District Judge in Civil Revision in civil matter. He further urges that keeping in view the controversy between the parties, the revisional Court was justified to remand the case with the direction to the trial Court to decide the application afresh after recording of evidence of parties after giving them reasonable opportunity on merit whereas the learned High Court had reversed the same without adverting to the reasoning of the revisional Court.
12. 6.Learned counsel of the respondent submits that Respondent No.. 1 and her mother had themselves forgiven their right in the property of the late Syed Aal-e-Hassan. He further urges that compromise deed was executed between the parties on 27.3.95 which was admitted by the parties before the Court as evident from order dated 28.3.95 and the case was adjourned for 2.4.95. On 2.4.95 application of the respondents was dismissed in terms of the compromise arrived between the parties after recording the statement of the parties, therefore, revisional Court was not justified to reverse the order of the trial Court. He further urges that respondents had settled the matter with the petitioner outside the Court. Petitioner secured an amount of Rs. 2,00,000/- which amount was not denied by the petitioner as is evident from para 8 of the impugned judgment. He further urges that petitioner was not the daughter of the late Syed Aal-e-Hassan. Infact she was his adopted daughter. He further submits petitioner was declared as not legal daughter of Syed Aal-e-Hassan in the suit titled Mst. Ghausia Hassan versus Mst. Munawar Jahan vide judgment dated 16.10.2000 passed by Civil Judge 1st Class Lahore while rendering findings on Issue No. 5. He further urges that petitioner could not file application u/S. 12(2) CPC on account of her conduct as the petitioner and her mother had settled the dispute outside the Court on the well known principle of estoppal and waiver. He further urges that petitioner had not alleged any fraud misrepresentation in her application, therefore, learned High Court was justified to accept the constitution petition of the Respondent No. 1 through the impugned judgment.
13. 7.Learned counsel for the petitioner in rebuttal submits that suit titled Mst. Ghausia Hassan v. Mst.
14. Munawar Jahan was decided against her on the basis of succession certificate secured by Respondent No. 1 against which the petitioner had filed application u/S. 12(2) CPC. He further urges that petitioner has also filed the appeal against the said judgment and decree before the learned High Court which is still pending adjudication.
15. 8.We have given our due consideration to the contentions of learned counsel of the parties and perused the record. Without adverting to the contentions of the learned counsel of the parties, we intend to decide the petition on legal questions raised before us. It is an admitted fact that Respondent No. 1 had filed a constitutional petition the learned High Court against the judgment of the revisional Court dated 12.7.2000 wherein the revisional Court accepted the petition and the application u/S. 12 (2) CPC was remanded to the learned trial Court for its fresh decision after recording of evidence of parties after giving them reasonable opportunity on merit. It is a settled principle of law that Constitutional Petition is not maintainable against the remand order as the law laid down by this Court in Muhammad Ilyas Khan's case 1986 SCM R 251. It is also an admitted fact that respondent as mentioned above had filed Constitutional Petition No. 21052 of 2000 against the judgment passed by the Addl. District Judge in revision petition in civil matter. The learned Addl. District Judge remanded the application to the learned trial Court with the following observation:- "In the circumstances it would be in the interest of justice that appellant Ghausia Hassan be provided opportunity to establish her paternity and if she is refused to prove her case she will be deprived of her valuable right. In these circumstances, I am of the considered view that the learned trial Court committed material irregularity while ignoring the fact regarding claim of paternity by Ghausia Hassan hence the impugned order dated 30.1.99 is set aside. As there is admittable right of inheritance is involved so in the interest of justice the appeal is converted into revision petition and the same is accepted and application under Section 12(2) CPC is remanded to learned trial Court for its afresh decision after recording of evidence of parties after giving them reasonable opportunity on merit".
16. 9.Mere reading of the aforesaid operative part of the judgment dated 12.7.2000 clearly shows that substantial justice was done between the parties and this fact was not considered by the learned High Court while accepting the constitutional petition vide impugned judgment as law laid down by this Court in Imtiaz Ahmad's case (PLD 1963 SC 382) and in Noor. Muhammad's case (PLD 1985 SC 131).
10. In view of what has been discussed above, this petition is converted into an appeal which is allowed. The impugned judgment of the learned High Court is set aside and judgment of the revisional Court dated 12.7.2000 is restored.