Ghulam Mustafa Mughal, J-- This appeal by leave of the Court is directed against the judgment and decree of the High Court dated 31.3.2016 passed in Civil Appeal No. 53 of 2014, whereby the appeal filed by the respondents, herein, has been accepted.
2. The facts necessary for disposal of the instant appeal are that the appellants, herein, filed a suit for declaration- cum-perpetual injunction and cancellation of gift-deeds executed on 8.5.2006 and 2.5.2012 in the Court of Civil Judge, Kotli. It was claimed in the suit that the plaintif fs and defendant No.1 are real daughters of defendant No.2, who are equally entitled to his legacy . Defendant No.1, with the connivance of the revenue staff and her husband, got executed the gift-deed in her favour regarding the whole share of defendant No.2. Thereafter , defendant No.1, transferred the land in question to his sons vide gift-deed dated 2.5.2012. It was claimed that when the plaintif fs came to know about the fake and fictitious gift-deeds and they have filed suit for cancellation of the same. The suit was admitted by defendant No.2, however , the other defendants have filed written statements. During pendency of the suit, an application was filed under Order VII, Rule 11, C.P.C., on the ground that as the gift-deeds have validly been executed by defendant No.2 in favour of defendant No.1, therefore, the suit cannot be proceeded in the life of defendant No.2 because the execution of gift-deeds does not give any cause of action to the platinf fs for filing of declaratory suit. The application was objected to by the other side. After hearing the learned Advocates for the parties, the learned Civil Judge, Court No.II, vide order dated 26.8.2013 rejected the plaint. Feeling aggrieved from the order of Civil Judge, Court No.II, Kotli, Sairan Begum and others went in appe al before the learned Additional District Judge, Kotli. The learned Addition al District Judge, Kotli, vide judgment dated 9.9.2014 accepted the appeal by setting aside the order dated 26.8.2013 recorded by the Civil Judge Court No.II, Kotli and remanded the case to the trial Court for deciding the same after framing issues and recording evidence. Sakeena Begum, respondent, herein, felt aggrieved from the judgment passed by the learned Additional District Judge, Kotli filed an appeal before the Azad Jammu & Kashmir High Court on 1.10.2014. The learned High Court vide judgment and decree dated 31.3.2016 accepted the appeal and vacated the order passed by the learned Additional District Judge, Kotli on 9.9.2014 and restored the order of the Civil Judge Court No.II, Kotli, hence, this appeal.
3. Mr. Mehboob Ellahi Chaudhry , the learned Advocate, appearing for the appellants while reiterating the grounds taken in the appeal, submitted that the suit filed on behalf of the appellants, herein, was very much competent falling within the ambit of section 39 of the Specific Relief Act, hence, could not be thrown out on technical reasons while exercising the powers conferred on the Court under Order VII, Rule 11, C.P.C., rather it was in the interest of justice to decide the case on merits after providing the parties an opportunity for leading evidence pro and contra.
The learned Advocate further submitted that even otherwise the cause of action accrued to the platinf fs during the pendency of the suit as defendant No.2 died on 29th July, 2013. He argued that the right to inherit the legacy of deceased stood open on the aforesaid date in favour of the plaintif fs. The learned Advocate contended that vide order dated 13.8.2013 recorded by the learned civil Judge Court No. II, Kolti, the legal heirs have been substituted; hence, the suit was maintainable at least on the aforesaid date and it was enjoined upon the Court to decide the controversy after recording evidence instead of dismissing the suit on technical grounds.
4. Conversely , Malik Muhammad Zarat Khan, Advocate, appearing for the respondents, contended that the gift- deeds were executed by defendant No.2 for his whole share firstly in the year 1986 and subsequently on 8.5.2006, hence, the same were not challengeable after the prescribed period of limitation. The learned Advocate contended that the land has further been alienated by the donee to his sons and at present the platinf fs have no right to institute the suit and the plaint has rightly been rejected by the learned trial Court as well as by the learned High Court. The learned Advocate contended that the suit could not be filed by the plaintif fs during life time of Muhammad Khan, donor , because none of the rights accrues to the legal heirs in the life time of a Muslim owner .
5. We have heard the learned Advocates representing the parties and gone through the record of the case. We have no quarrel with the proposition that the legacy of a Muslim owner open after his death in accordance with the Muhammadan Law. In the present case, the declaration was sought by the plaintif fs in the life time of Muhammad Khan, donor , when the alleged gift-deeds got executed under undue influence and fraudulently by defendant No.1, who is their elder sister and her husband. An instrument can be avoided and got cancelled by filing a suit under section 39 of the Specific Relief Act if such instrument, if left outstanding, may cause serious injury to any person.
Assuming that the plaintif fs had got no cause of action at the time of institution of suit, however , they were vested with the same during pendency of suit at least on 29th July, 2013 when Muhammad Khan (defendant No.2) died or at least from 13.8.2013 when the Court substituted his legal heirs while observing therein that the legal heirs of the deceased are already on the record. The written statement in this case was receiv ed, therefore, the proper course for the learned Civil Judge Court No.II, Kotli was to provide the parties an oppo rtunity for leading evidence and thereafter decide the case on merits. Identical proposition has been considered by the apex Court of Pakistan in the case reported as Managing Director , Oil and Gas Development Company Ltd. vs. Syed Najmul Hassan Naqvi (2005 SCMR 890). In the referred case, the respondent was removed from service on the charge of misconduct.
He filed a representation before the competent authority which was to be disposed of within 90 days. Respondents, therein, without waiting for a period of 90 days filed an appeal before the Service Tribunal. An objection was taken that the appeal is premature and not maintainable, however , the learned apex Court considered the proposition on the analogy of section 80 of the Code of Civil Procedure, which provides that no suit against the Government can be filed before the expiry of two months next after notice in writing, as contemplated by the section itself.
Subsequently , the law was amended and under the amended law, it was provided that if a premature suit is filed without such notice, then the Court shall allow not less than three months to the Government to submit its written statement. It was observed that the causes of action, if premature, can be overlooked if the same becomes mature during the pendency of the case. The apex Court of Pakistan also relied upon the observation recorded by Mr. Justice Hamoodur Rehman (late) (as his lordship then was) in the case reported as Abdullah Bhai and others vs. Ahmad Din (PLD 1964 Supreme court 106). Paragraph No.4 of the judgment is relevant, which is reproduced as under:- "4. We believe that the one in hand is a matter squarely akin to the civil law and that is why the learned counsel also consciously sought protection under the provisions of section 80, C.P.C. Still, we cannot avoid making expression that the condition of prematurity involved under section 80, C.P.C. as well as under section 4 of the Service Tribunal Act is of hyper-technical nature. Legislature having realized this fact has amended the section in the year 1962 by adding proviso to the effect that if a premature suit is instituted without such notice or in contravention of the provisions of section 80, C.P.C., the Court shall allow not less than three months to the Government to submit its written stateme nt. The logic behind the issuance of notice under section 80, C.P.C. of providing time to the Government is covered by allowing it three months time after the institution of suit, to file written statement. This carries an idea that the causes of action if premature can be overlooked if those become mature during pendency of the cause. This Court comprising of Mr. Justice A.R. Cornelius, Mr. Justice B.Z. Kaikaus and Mr. Justice Hamoodur Rahman in Abdullah Bhai' s case PLD 1964 SC 106-113 had categorically observed that it was open for the Court to have decreed the suit which was premature when it was filed but where the cause of action matured during the pendency of the suit."
In Abdullah Bhai' s case (supra), the apex Court of Pakistan has attended the controversy in the following manners:- "An argument had been addressed to us that the suit was premature and should have been dismissed on that ground. The suit had been filed on 17.1.1 958 that is long before 31.12.1959 on which date the period of the licence was to terminate. The trial Court had dism issed the suit. The Additional District Judge on appeal had decreed it on a date when the period of the licence had expired and the appellants had a right to possession. It was open to the appellate Court to have decreed a suit which was premature when it was filed but the cause of action respecting which had arisen during the pendency of the suit. We would not be prepared at this stage to dismiss the suit on this technical ground and to direct the appellants to file a fresh suit."
Reliance can also be placed on the judgment of the Lahore High Court reported as Sardar Muhammad vs. Bashir Ahmed and 10 others (PLJ 2003 Lahore 1170), wherein, the plaint was rejected for having been filed as premature but the cause of action stood mature during the pendency of the case. The order of rejection of plaint in that case was set aside and the case was remanded for decision afresh. The relevant observ ation has been recorded in para 4 of the judgment, which is reproduced as under:- "4. Having considered the submissions of the learned counsel for the parties, I am of the opinion that according to settled principles of law, if a cause of action matures during pendency of a suit, plaintiff's suit cannot be dismissed or plaint therein cannot be rejected. In the present case, there is no doubt that the suit was filed on 4.1.1994 by the petitioner for possession through specific performance of agreement dated 1.2.1968 and at the time of institution of the suit, respondents had not been granted proprietary rights. However , during pendency of the suit, proprietary rights were granted to the respondents on 5.4.1994. Petitioner 's cause of action as plaintif f thus matured and came to be vested in him during pendency of the suit. In view therefore, the observations of learned District Judge in the impugned judgment that plaint was rejectable under Order VII, Rule 1 1 C.P .C. are not sustainable."
6. In view of the above settled propositions of law, we are persuaded to hold that dismissal or rejection of the plaint by the learned High Court on the groun d that cause of action was not accrued to the plaintif fs at the time of institution of the suit, was not justified. The appeal is accepted. The judgment passed by the learned High Court is vacated and that of the Additional District Judge, Kotli is hereby restored. The Civil Judge Court No.II, Kotli is directed to proceed with the matter in accordance with law .