Sadaqat Ali Khan, J.: This Writ Petition No. 995 of 2007 has been filed by the present petitioners/defendants against the order dated 14.4.2007 passed by Additional District Judge, Khanpur according to which civil revision of the present petitioners was dismissed, filed by them against the order dated 30.1.2006 passed by Civil Judge, Khanpur according to which application of the present petitioners under Order XIII Rule 1 & 2 read with section 151 of CPC to produce documents i.e. inheritance mutation No. 1744 dated 7.5.1942 and pedigree table pertaining to years 1942-43 was dismissed.
2. The brief facts of the case are that plaintiffs/respondents filed a suit for declaration with the assertion that Mst. Mubarak Begum and Latifan are owners in possession of the suit property being widows of Barkhurdar Khan died in India before partition and his inheritance mutation No. 1465 dated 20.12.1974 in favour of all the legal heirs is against law and facts and is liable to be set-aside.
3. Present petitioners being defendants contested the suit by filing written statement and submitted that Mst. Mubarak Begum and Latifan widows of Barkhurdar Khan were not the sole owners of the suit property rather were limited owners of the suit property and the disputed inheritance mutation No. 1465 pertaining to Barkhurdar Khan last male owner of the suit property mentioned above was rightly sanctioned in favour of his all the legal heirs.
4. Learned trial court, out of the divergent pleadings of the parties, framed the following issues: - "Issues:
1. Whether plaintiffs namely Mst. Mubarak Begum and Mst. Latifan widows of Barkhurdar Khan are full owners of the suit properties as detailed in the plaint?OPP
2. Whether late Mst. Aisha and Mst. Fatima are sisters of Barkhurdar Khan?OPD
3. If issue No.1. proves in negative and issue No.2 in positive, whether the suit property was allotted to the two plaintiffs as widows of Barkhurdar Khan, if so respective shares of contesting parties?OPP
4. Whether the plaintiffs have become the owners of the suit properties through adverse possession?OPP
5. Whether the suit is not maintainable in the present form?
6. Whether the suit is insufficiently and wrongly stamped?
7. Whether the plaintiffs has no locus standi for the suit?
8. Whether the plaintiffs suit is collusive one with defendants No.1 to 3?
9. Whether the defendants No.1 to 3 are necessary parties to the suit?
10. Whether defendant No. 4,5 are entitled to the compensatory costs under section 35-A CPC?
11. Relief.
5. Evidence of the plaintiffs has been recorded.
6. During the evidence of the defendants present petitioners have moved an application for seeking permission to produce documents i.e. inheritance mutation No. 1744 dated 7.5.1942 pertaining to Barkhurdar Khan last male owner of the suit property sanctioned in India before partition in favour of Mst. Latifan alias Chooti and Mst. Mubarak Begum widows of Barkhurdar Khan being limited owners and pedigree table pertaining to year 1942-43.
7. Application was contested by the present respondents/plaintiffs and same was dismissed by the trial court vide order dated 30.1.2006.
8. Civil Revision filed by the present petitioners was also dismissed by Additional District Judge, Khanpur vide order dated 14.4.2007 hence this petition.
9. Learned counsel for the petitioners submitted that impugned orders of the courts below are against law and facts and are liable to be set-aside.
10. On the other hand, learned counsel for the respondents has vehemently opposed this writ petition and supported the impugned orders of the courts below.
11. I have heard the learned counsel for the parties and perused the record.
12. Inheritance mutation No. 1465 pertaining to Barkhurdar Khan last male owner of the suit property was sanctioned on 20.12.1974 in favour of (i) Mst. Rafiqan and Nusrat Begum (his daughters) (ii)
Mst. Mubarak Begum and Latifan (his widows) and (iii) Mst. Fatima and Ayesha (his sisters). Above mentioned mutation has been challenged by Mst. Mubarak Begum and Latifan widows of Barkhurdar Khan last male owner of the suit property by filing instant suit with the assertion that they are owners of the suit property and remaining legal heirs mentioned above have no concern with the suit property.
13. Suit has been contested by the present petitioners by filing written statement with the assertion that Mst. Mubarak Begum and Mst. Latifan widows of Barkhurdar Khan last male owner of the suit property were limited owners and disputed inheritance mutation No. 1465 pertaining to Barkhurdar Khan deceased has rightly been sanctioned in favour of all the legal heirs of Barkhurdar Khan deceased.
14. After framing of the issues by the trial court, plaintiffs have produced their evidence whereas during evidence of the defendants present petitioners have moved an application under Order XIII Rule 1 & 2 read with section 151 CPC to produce documents i.e. inheritance mutation No. 1744 dated 7.5.1942 pertaining to Barkhurdar Khan last male owner of the suit property and pedigree table for the years 1942-43 to prove that Mst. Mubarak Begum and Latifan widows of Barkhurdar Khan last male owner of the suit property were limited owners and relation of the parties with Barkhurdar Khan deceased.
15. I have perused these two documents with the assistance of the learned counsel for the parties.
Both these mutations are public documents. An application bearing No. 4929 has been moved to obtain the attested copy of inheritance mutation No. 1744 dated 7.5.1942 pertaining to Barkhurdar Khan deceased in foreign country (India) on 10.3.2005 in the concerned office and same was issued by the concerned office on the same day. This document bears relevant endorsement of the concerned copying agency.
16. Admittedly, Barkhurdar Khan last male owner of the suit property died in India before partition.
Likewise, an application bearing No. 4924 has been moved to obtain the attested copy of the pedigree table of Barkhurdar Khan last male owner of the suit property pertaining to years 1942-43 on 10.3.2005 and on the same day it was issued by concerned office. Both these documents have been attested by Notary Public District Hisar India with following endorsement: - "certified that this copy has been duly certified by the office pertaining to legal custody of original as per Indian Law dated 10.3.2005"
And received through registered post in Pakistan on 14.3.2005.
17. Learned revisional court while dismissing the civil revision of the present petitioners has observed that both these documents have not been attested by the Indian and Pakistani Embassies. The relevant portion of the order is hereby reproduced: - "the case is fairly old one. Though these documents may throw light on the controversy between the parties yet the fact remains that these have not been got certified/attested by the Indian and Pakistani Embassies to exclude the possibility of forgery and fabrication. Hence, on this sole ground the revision petition merits dismissal which is accordingly dismissed with no order as to cost".
18. The relevant Article 89 (5) of Qanun-e-Shahadat Order 1984 is hereby reproduced: - "public documents of any other class in a foreign country, by the original, or by a copy certified by the legal keeper thereof with a certificate under the seal of a notary public, or of a Pakistan Counsel or diplomatic agent, that the copy is duly certified by the officer having the legal custody of the original, and upon proof of the character of the document according to the law of the foreign country"
19. Considering article 89 sub-clause 5 of Qanun-e-Shahadat Order 1984, I am of the view that it is not the only requirement of law that certified copies of public documents should have been certified under the seal of Pakistan Counsel or diplomatic agent or a certificate under the seal of Notary Public is sufficient. Both the documents under discussion being public documents bear seal of Notary Public mentioned above do not require the seal of Pakistan Counsel or diplomatic agent.
Public documents in a foreign country or certified copies thereof must have certificate under the seal of Notary Public or of a Pakistan Counsel or diplomatic agent and of not the both.
Both the documents under discussion are the public documents, copies of which have been obtained in accordance with law. Further, both the documents have been attested by concerned Notary Public with certificate that copies have been certified by the officer having the legal custody of the original.
20. The argument of the learned counsel for the respondents that both the documents under consideration have not been filed with the plaint and application for production of the documents moved at belated stage has no substance because non-filing of the documents with plaint has never been considered fatal in view of the provisions of Order XIII Rule 2 CPC which empowers the court to receive documentary evidence during trial. Reliance is placed on case Anwar Ahmad v.
Mst. Nafis Bano through legal heirs (2005 SCM R 152) in which Hon'ble Supreme Court of Pakistan has observed at page 168 as under: - "As far as non-filing of documents along with plaint is concerned, it has never been considered fatal in view of provisions of Order XIII, rule 2, CPC which empowers the Court to receive documentary evidence during the trial".
21. Even otherwise, these two documents were not in the custody of the present petitioners rather same being public documents were in the custody of relevant office of Indian Government and copies of which have been obtained on 10.3.2005 in accordance with law from the concerned office of Indian Government and these documents have been received by the present petitioners on 14.3.2005 through registered post thereafter present petitioners have moved an application on 3.5.2005 to produce the same before the trial court.
22. It is important to note here that evidence of the present petitioners has not been closed.
23. In view of the above discussion, both the courts below have committed illegality by dismissing the application of the present petitioners to produce above mentioned documents.
24. For the foregoing reasons this petition is allowed. Impugned orders of the courts below are hereby set-aside. Application of the present petitioners to produce inheritance mutation No. 1744 dated 7.5.1942 and pedigree table pertaining to years 1942-43 is hereby accepted as prayed for.
However, present respondents/plaintiffs would be at liberty to rebut the same and the authenticity of the documents under discussion will be seen by the trial court after recording of the evidence. At this stage, learned counsel for the respondents submitted that direction may be issued to the learned trial court to conclude the trial expeditiously. With the consent of both the learned counsel for the parties, learned trial court is directed to decide the case expeditiously within a period of two months positively form the date of receipt of this order.