Shahid Karim, J:-This application under section 115 of Code of Civil Procedure, 1908 (CPC) by way of revision petition lays a challenge to the judgment and decree dated 31.12.2001 passed by Addl.
District Judge, Multan. By the said impugned judgment and decree, the appeal filed by the respondents was accepted and the judgment and decree dated 27.7.2001 passed by Civil Judge, 1st Class, Multan was set aside.
2. The subject matter of the instant revision petition is a property which devolved on inheritance and belonged to Malik Jamilullah. A pedigree table in para No.3 of the plaint gives an inkling regarding the relationship of the parties and the dispute which has arisen therefrom. It was alleged in the plaint that the plaintiffs were the successors in interest/legal heirs from his wife Mst. Zahida Bibi. However, the petitioners, herein, according to the contents of the plaint, claim their inheritance through the wedlock of Mst. Zareena Yousafi with Malik Jamilullah. The respondents/plaintiffs denied that Mst. Zareena Yousafi is entitled to any part of the inheritance of Malik Jamilullah. The basis of the said denial was that the marriage of Malik Jamilullah with Mst. Zareena Yousafi was contracted on 01.11.1968 while divorce was effected on 18.3.1969. Ghulam Abbas, one of the petitioners, claims to be the son born out of the wedlock with Mst. Zareena Yousafi which is denied in the plaint.
3. Malik Jamilullah died on 02.10.1985. On 25.6.1986 a mutation of inheritance bearing No.884 was sanctioned and the name of Ghulam Abbas and Mst. Zareena Yousafi were not included in the inheritance of Malik Jamilullah. On 21.9.1986, an appeal was filed which was accepted on 15.9.1987 in the revenue hierarchy and the petitioners/ plaintiffs were held entitled to inheritance. On 12.4.1988 mutation No.884 was rectified but the name of Mst. Zareena Yousafi was once again left out. Mst.
Zareena Yousafi filed an appeal as also an appeal was filed by the respondents/plaintiffs. The appeal of Mst. Zareena Yousafi was accepted and the one filed by the respondents was rejected. In pursuance thereof, on 24.10.1991 the mutation No.884 was once again rectified and the names of Mst. Zareena Yousafi and Ghulam Abbas were included in the inheritance of Malik Jamilullah.
4. As brought forth above, the respondents/plaintiffs filed a suit for declaration. The foundation of the respondents/plaintiffs' case, as set up in the plaint, was that Mst. Zareena Yousafi had been divorced by Malik Jamilullah on 18.3.1969 and, therefore, she was not the wife of Malik Jamilullah at the time of his death and thus not entitled to inheritance. The paternity of Ghulam Abbas was denied altogether and he was alleged not to be the son born out of the wedlock of Malik Jamilullah and Mst. Zareena Yousafi.
5. The following issues wer framed by the trial court: I. Whether the plaintiffs are owners in possession of the land in dispute as being heirs of Jamee Ullah deceased? OPP II. Whether Jameel Ullah divorced defendant No.1 on 18.03.69 and as such, she was not his wife at the time of his death on 12-10 1985?OPP III. Whether the defendant No.2 is not son of Jameel Ullah deceased? OPP IV. Whether mutation No.884 is against facts, law, void, and in effective upon the rights of the plaintiffs to the extent of the shares of defendants? OPP V. Whether the suit is time barred?OPD VI. Whether the plaintiffs are estopped by their words and conduct?OPD VII. Whether the description of the suit property is not correct, if so, its effect?OPD VIII. Whether the suit is bad for misjoinder and non-joinder of necessary parties?OPD IX. IX. Whether the plaintiffs have no cause of action and locus standi to file this suit?OPD X. Whether the suit is not correctly valued for the purpose of court fee and jurisdiction? OPD XI. Whether the suit is not maintainable in its present form?OPD XII. Relief.
6. During the course of the proceedings before the trial court, an application for the production of secondary evidence was filed. This application was dismissed vide order dated 26.4.2001 by the trial court. Simultaneously, another application in the nature of notice to produce the divorce deed was sought to be served upon the petitioners/defendants which was also rejected by the trial court on 10.3.2001. It was stated that the order dated 26.4.2001 was challenged in a revision petition but both the parties are completely at sea as to the outcome of the said revision petition. Be that as it may, the trial court proceeded with the trial and rendered the judgment and decree. The judgment and decree was passed after it was found by the trial court that the respondents/plaintiffs have, despite opportunities in this regard, failed to produce any evidence in support of the issues, the onus of which was on them and, thus, the trial court proceeded to close the right of evidence of the plaintiffs. Having done so, the trial court proceeded to decide the various issues, the onus of which was on the respondents/plaintiffs and in view of the lack of evidence, dismissed the suit of the respondents/plaintiffs.
7. The Addl. District Judge, on the other hand, accepted the appeal. The Addl. District Judge was swa yed by the fact that application for the production of secondary evidence ought to have been accepted and thus, an opportunity for the production of the same should have been provided to the respondents/plaintiffs. As result of the finding of the Addl. District Judge, the case was remanded to the trial court for decision afresh after affording the parties an opportunity of producing the evidence. The peculiar feature of the impugned judgment of the Addl. District Judge is that he was completely engrossed in the issue relating to secondary evidence and did not pay any heed to the real issue in the appeal before the lower appellate court. The real issue, in my opinion, before the lower appellate court was regarding dismissal of the suit of the respondents/plaintiffs on account of non production of evidence. No finding at all has been rendered by the Addl. District Judge on this aspect which has gone abegging. The consequence of the above should have been that the case be remanded to the Addl. District Judge for decision on the real controversy which arose in the appeal before him. However, that course would heap further misery on the parties, in that, another round of unending litigation would ensue and the parties would continue to be caught in the vortex of litigation. I would, therefore, proceed to analyse the judgment and decree of the trial court and see whether it was based on reasonable grounds.
8. The civil judge as trial court has mentioned the numerous dates of hearing which were granted to the respondents/plaintiffs for the production of evidence. It has been mentioned in the judgment of the trial court that on 12.6.2001 it was made clear that no further opportunity would be provided for the production of evidence. On the next date of hearing on 26.6.2001 the evidence was once again not produced and yet another opportunity was granted and once again it was made clear that no further adjournment shall be granted in this regard. On an adjourned date of hearing on 23.7.2001, once again no evidence was forthcoming and the case was adjourned in the interest of justice to 27.7.2001. On 27.7.2001 the respondents/plaintiffs failed to produce the evidence as directed by the court. However, an application was filed to the effect that a revision petition was pending against the order refusing application for secondary evidence and that decision in the revision petition be awaited. The trial court, upon consideration of the contents of the said application, did not deem it proper or expedient to grant further adjournment to await the decision in the revision petition. The trial court, therefore, proceeded to close the evidence of the respondents/plaintiffs and passed the impugned judgment and decree.
9. I have not been able to find any material irregularity in the judgment and decree of the civil court. It is not the right of a party to avail innumerable opportunities for the production of the evidence. No valid reasons have been put forth by the learned counsel for the respondents/plaintiffs which would justify the act of the respondents in failing to produce the evidence. The learned counsel for the respondents has also not been able to point to any irregularity or error of law in the judgment and decree of the trial court which proceeded after closing the evidence of the respondents. No unreasonableness has been alleged to have crept in the impugned judgment and decree of the Civil Judge, Multan.
10. The Addl. District Judge has, as brought forth above, rendered the findings entirely upon the issue relating to production of secondary evidence. It is pointed out that the said issue was not the real and primary issue in the appeal before the Addl. District Judge. The challenge in appeal was to the findings of the civil judge regarding the failure to produce evidence and to close the right of evidence and then to pass the impugned judgment and decree. However, the Addl. District Judge, by relying upon the issue of secondary evidence as the pivotal issue, proceeded to set aside the impugned judgment and decree and to remand the case. While doing so, the Addl. District Judge lost sight of the important provisions of Qanun-e-Shahadat Order, 1984 with regard to the production of secondary evidence. In this regard, the provisions of Articles 73, 74, 75 and 76 of Qanun-e-Shahadat Order, 1984 were thrown to the winds and without discussion on these important provisions, the respondents/plaintiffs were allowed to produce the secondary evidence with regard to divorce deed. Article 75 of Qanun-e-Shahadat Order, 1984 mandates that all documents must be proved by primary evidence except in cases mentioned hereinafter and according to Article 73, primary evidence means the document itself produced for the inspection of the Court. Article 76 elaborately deals with case in which secondary evidence relating to a document may be given. It was obligatory upon the respondents/plaintiffs to have brought their case within the ambit of Article 76 and thereby to convince the courts below to grant the application for the production of the secondary evidence.
11. I have perused the application filed by the respondents/plaintiffs for the production of secondary evidence which is at page 35 of this petition. That application is devoid of any reasons in support of the production of secondary evidence relating to divorce deed. The grounds have not been spelt out in the said application on which secondary evidence is sought to be produced as enumerated in Article 76 of the Order, 1984. It is pertinent to mention that perhaps the respondents/plaintiffs wanted to produce the divorce deed which was effected between Malik Jamilullah and Mst.
Zareena Yousafi, however, that evidence could have been validly obtained from the record kept in this regard under the Muslim Family Law Ordinance, 1961. Since the onus for proving that divorce had, in fact, taken place, was upon the respondents/plaintiffs, it was incumbent upon them to produce evidence in support of the said contention made in the plaint. It was certainly open to them to have applied to the court for the production of the record of the concerned local council in this regard. Once it was established that the said record could not be obtained or had been destroyed or lost, could the respondents/plaintiffs have applied for the production of secondary evidence. The production of secondary evidence is not as a right or is not to be permitted in the normal course. It is hedged in by conditions given in law and must be complied with before a permission can be granted in this regard. The Addl. District Judge has proceeded with material irregularity in granting the respondents/plaintiffs the opportunity, without reasonable cause, to produce the secondary evidence with regard to the divorce deed.
12. It is also important to notice that in the challenges that have been made in the revenue hierarchy no such contention was put forth by the respondents denying the status of the petitioners. The claim made in the plaint seems to be an afterthought and is not based on valid and reasonable grounds.
13. In view of the above, the instant revision petition is accepted and the impugned judgment of the lower appellate court is set aside with the result that the judgment and decree of the Civil Judge, Multan dated 27.7.2001 is up held and restored.