1. ' ALI AKBAR QURESHI, J.--- This Constitutional petition assails the orders dated 17.10.2003, 08.01.2002 and 15.09.2001, passed by the learned Courts below, whereby an application under Section 12(2) of Code of Civil Procedure, 1908, filed by the petitioners for setting aside the judgment and decree dated 14.07.1969, was dismissed.
2. This case has a checkered history started from the year 1937, when the predecessors of the parties to the case Muhammad Afzal Khan died issueless, leaving behind his mother namely Mst.
2. Bakhtan and widow Mst. Khatoon alias Ameer Khatoon and one Sikandar Hayat Khan [paternal cousin of deceased Muhammad Afzal Khan]. Deceased Muhammad Afzal Khan was owner of the suit properties fully described in Paragraph No,2 of this Constitutional petition. 3.After the death of predecessor of parties to the suit, the inheritance Mutation No,268, dated 22.11.1938, under the Customary Law was entered in the name of Mst. Khatoon alias Ameer Khatoon, the widow of deceased Muhammad Afzal Khan, being limited owner. At the time of attestation of the aforesaid mutation under the Customary Law, the father of Mst. Ameer Khatoon, namely Adam Khan produced an unregistered Will Deed dated 09.08.1937, allegedly to have been executed in favour of Mst. Khatoon alias Ameer Khatoon by her husband Muhammad Afzal Khan (deceased), before the Revenue Officer concerned for mutating the whole land in favour of Mst. Khatoon alias Ameer Khatoon as full owner. The Will Deed produced by the father of Mst. Ameer Khatoon was rejected by the Revenue Officer in the year 1938 and held that Mst. Ameer Khatoon is simply a limited owner. The order of the Revenue Officer, whereby the alleged Will Deed was not given effect in the record in favour of Mst. Ameer Khatoon being fake one, was not challenged before any forum in any manner, which had attained finality to the extent of validity of Will.
3. 4.On the promulgation of the Shariat Application Act, 1964, mutation entered under the Customary Law was challenged by one Sikandar Hayat Khan, predecessor-in-interest of the petitioners before the revenue hierarchy for the division of the properties left by Muhammad Afzal Khan deceased according to Shariah on the ground, that the status of limited owner of the widow of deceased Muhammad Afzal Khan has been terminated; whereupon the revenue authorities entered the mutation of the aforesaid property left by Muhammad Afzal Khan in the names of Mst. Bakhtan as mother; Mst. Ameer Khatoon as widow and Sikandar Hayat Khan as uncle's son, through mutations Nos,815, 4802, 6206 respectively and these mutations were sanctioned by the order of the Collector, Mianwali.
4. 5.Mst. Khatoon alias Ameer Khatoon challenged the order of the Collector, Mianwali, up to the Board of Revenue on the ground, that her status as limited owner should not be disturbed but she remained unsuccessful. Thereafter, Mst. Khatoon alias Ameer Khatoon did not further agitate the matter nor claimed herself the exclusive owner of whole property on the basis of Will or otherwise.
5. But as depicts from the record, under a family settlement, she remained in possession and had been getting the profit of the land along with the mother of deceased Muhammad Afzal Khan.
6. Sikandar Hayat Khan paternal cousin of deceased Afzal Khan died on 26.03.1974, and both the ladies i,e, Mst. Khatoon alias Ameer Khatoon and Mst. Bakhtan remained in possession of the land; Mst. Bakhtan mother of Muhammad Afzal Khan deceased, died in the year 1977, whereas Mst.
7. Khatoon alias Ameer Khatoon died in the year 1993. 6.After the death of aforesaid ladies, the petitioners approached to the revenue authorities for attestation of mutations of inheritance in their names from where it came into the knowledge of the petitioners, that the entire suit property had been transferred in the name of Mst. Khatoon alias Ameer Khatoon in result of an ex parte decree passed in favour of Mst. Ameer Khatoon by the Civil Court vide judgment and decree dated 14.07.1969.
8. 7.The petitioners on coming to know the ex-parte judgment and decree dated 14.07.1969, filed an application under Section 12(2), C.P.C, for setting aside the aforesaid judgment and decree; the application was contested by the respondents and some of the respondents filed their consenting written statements. One Muhammad Ejaz Khan also filed an application under section 12(2), C.P.C, which too was resisted by the respondents and the petitioners.
9. 8.The learned trial court consolidated both the applications under Section 12(2), C.P.C, framed necessary issues out of controversial pleadings, recorded the evidence of respective parties and finally dismissed both the applications vide order dated 15.09.2001.
10. 9.Both the applicants of applications under section 12(2), C.P.C. challenged the order dated 15.09.2001, by way of revision petition before the learned District Judge, Mianwali, which was dismissed by the learned Addl: District Judge, Mianwali, on 01.08.2002. The petitioners thereafter filed a review application on 22.08.2002, to review the order dated 01.08.2002: 10.Another review petition was also filed by one Muhammad Ejaz/Hayat Khan, but later on withdrew the same. Finally the review petition filed by the petitioners was dismissed on 17.10.2003.
11. Hence, this Constitutional petition.
12. 11.Learned counsel for the petitioners argued the following points: (i)The learned Courts below without adverting to the record have non-suited the petitioners.
13. (ii)The petitioners while filing the application under section 12(2), C.P.C. gave sound reasons for setting aside the ex parte decree but those have not been attended.
14. (iii)The respondents could not prove the Will, on the basis of which the ex-parte decree was obtained and further by way of a Will total property cannot be bequeathed.
15. (iv)From record it proves, that the ex parte judgment and decree dated 14.07.1969 has been obtained by playing fraud and misrepresentation.
16. (v)The alleged Will produced by the father of Mgt. Khatoon alias Ameer Khatoon before the revenue authorities to transfer the entire suit land in favour of Mst. Ameer Khatoon as a full owner, was rejected in the year 1938 and the order of rejection by the Revenue Officer was never challenged before any forum, therefore, to the extent of invalidity of Will, the order attained finality and in these circumstances, the document of alleged Will could not be used in any subsequent proceedings.
17. (vi)The learned trial court and especially the learned Revisional Court has completely failed to appreciate the record pertaining to the service of the petitioners in a suit filed in the year 1969, which clearly proves, that no service was effected upon the petitioners and the ex-parte decree was obtained by playing fraud and misrepresentation.
18. Learned counsel for the petitioners relied upon "The Punjab Province (Now West Punjab) v. Latif Ahmad Khan" (PLD 1958 SC (Pak.) 195), "Mst. Amir Khatun and another v. Sikandar Khan" (PLD 1967 W.P. (Rev.) 67), "Abdul Ghafoor and others v. Muhammad Shafi and others" (PLD 1985 SC 407), "Shams-ud-Din v. Mst. Jevan and others" (1986 M LD 764 Lahore), "Ghulam Akbar Khan v. Haq Sher Jan and other" (1989 CLC 1789, Peshawar), "Muhammad Aslam Rashid and 2 others v. Dr. Muhammad Anwar Saeed and 4 others" (1997 CLC 2012), "Zakir Ullah Khan and others v. Faiz Ullah Khan and others" (1999 SCM R 971), "Muhammad Asghar and others v. Muhammad Din and others"
19. (2000 YLR 2937), "Mst. Faiz Elahi v. Muhammad Anwar" (2001 YLR 2174), Hayderabad Development Authority through M.D. Civic Centre, Hyderabad v. Abdul Maeed and others" (PLD 2002 SC 84) "Khair Din v. Mst. Salaman and others" (PLD 2002 SC 677), "Ibrahim and 4 others v. Rehmat Ali and 6 others" (PLD 2002 SC 741), "Muhammad Hussain and others v. Mst. Hanaf Ilahi and others" (2005 SCM R 1121), "Mst. Reshman Bibi v. Amir and others" (2004 SCM R 392), "Muhammad Zubair and others v. Muhammad Sharif' (2005 SCM R 1217), "Mst. Janntan and others v. Mst. Taggi through L.Rs, and others" (PLD 2006 SC 322) and "Mst. Suban v. Allah Ditta and others" (2007 SCM R 635).
12. On the other hand, learned Senior counsel for the respondents Mr. Ahmad Waheed Khan, submitted, that at this stage, the validity of the ex-parte decree passed in favour of the respondents cannot be looked into as both the forums below after careful appreciation of the record have held, that the petitioners despite service of notices did not appear. Further submitted that the petitioners challenged the decree passed in 1969, after a considerable period, thus the application under Section 12(2), C.P.0 filed by the petitioners was otherwise barred by time. Reliance is placed on "Muzaffar Ali v. Muhammad Shafi" (PLD 1981 SC 94), "Muhammad Afzal and others v.
20. Government of Pakistan and others" (1987 SCM R 2078), "Mst. Mumtaz Begum and others v. Abdur Rashid and others" (1988 CLC 2023 Lahore), "Karachi Shipyard and Engineering Works Limited v.
21. Abdul Ghaffar and 2 others" (1993 SCM R 511), "Masoom Akhtar v. Rent Controller, Lahore and another" (1994 CLC 149), "Messrs Huffaz Seamless Pipe Industries Ltd. v. Sui Northern Gas Pipelines Ltd. and others" (1998 CLC 1890), "Ehsan Ullah v. Government of Pakistan through Secretary, Ministry of Finance, Islamabad and others" (1998 SCM R 2079), "Messrs Western Brand Tea, Karachi v.
22. Messrs Tapal Tea (Pvt.) Limited, Lahore and another" (PLD 2001 SC 14), "Collector Land Acquisition Abbottabad and 2 others v. Lal Khan and 11 others" (PLD 2002 SC 277), "Sameen Khan and 4 others v. Haji Mir Azad and others" (2002 CLC 754), "Khalid Mehmood Butt and another v. Managing Director, AKLASC and 4 others" (2004 CLC 937), "Kala Khan and others v. Rab Nawaz and others"
23. (2004 SCM R 517) and "Muhammad Zubair and others v. Muhammad Sharif" (2005 SCM R 1217) and "Rehmat Ali and 12 others v. Abdul Hameed and 16 others" (2006 YLR 2808).
24. 13.Heard. Record perused.
25. 14.The matter involved in this case pertains to inheritance of the property left by deceased Muhammad Afzal Khan, predecessor-in-interest of the parties to the suit. Relationship among the parties is admitted and the controversy which requires adjudication revolves around a Will Deed dated 09.08.1937, claimed to have been executed by deceased Muhammad Afzal Khan in favour of his wife namely Mst. Khatoon alias Mst. Ameer Khatoon in the year 1937.
26. 15.The petitioners as evident from the record, challenged the validity of the ex parte judgment and decree dated 14.07.1969 by filing an application under Section 12(2), C.P.C, on the grounds, that no notice was served to the petitioners, it was however managed by the respondents to get the ex- parte decree and that the inheritance mutation entered on 28.09.1965, on the promulgation of Shariat Application Act, by the order of the Collector, Mianwali, remained intact up to the Board of Revenue. Further the inheritance mutation was also entered in the name of Mst. Khatoon alias Ameer Khatoon to the extent of her share along with other legal heirs on 28.09.1965, which was not challenged anywhere.
16. The ex-parte decree dated 14.07.1969 was passed on the basis of only one document i,e, Will Deed dated 09.08.1937, claimed to have been executed by the husband of Mst. Khatoon alias Ameer Khatoon namely Muhammad Afzal Khan deceased. It is well settled proposition of law, that by way of Will under the Islamic Law, total property cannot be bequeathed in favour of anyone and the Will can be executed only to the extent of 1/3rd share of the total property. The judgment dated 14.07.1969 is totally silent about the status of the Will and the law deals with the Will. Needless to mention, that it was the mandatory legal obligation of the learned trial court to look into the record and particularly the validity of Will Deed on the basis of which the suit was filed, irrespective of the fact, that the petitioners/defendants despite service of notice had not appeared. By this way, the learned trial court who passed the ex-parte decree in the year 1969 has extremely failed to exercise the jurisdiction vested with it. The learned trial Court while deciding the application under section 12(2), C.P.C. for setting aside the ex-parte decree dated 14.07.1969 did not utter even a single word in the judgment in this regard. Although, while deciding the application under section 12(2), C.P.C. the learned trial Court, could have corrected the illegality earlier committed, while awarding ex- parte decree. The learned trial court also framed issues on the application under Section 12(2), C.P.C, recorded evidence of the parties and elected to non-suit the petitioners on procedural technicalities. The learned trial court could have decide the civil suit filed by the respondents on merit for fair adjudication instead of wasting its time by dismissing the application under section 12(2) of Code of Civil Procedure, 1908, on technicalities.
17. The mandate envisaged in Order VII, Rule 11 of Code of Civil Procedure, 1908, confers jurisdiction upon the learned trial court to decide the maintainability of a plaint at any stage irrespective of this, whether the defendant appears or not. In this case, the suit was filed on the basis of a Will to deprive the other legal heirs from their succession, therefore, the learned trial court should have examined the validity of Will particularly in the circumstances, when ex-parte decree is being passed.
27. The learned trial Court, as depicts from the findings passed at the time of delivering the ex-parte judgment and decree, had not perused the Will Deed, which was otherwise in-executable, invalid and contrary to the principle of Muhammadan Law, therefore, the learned trial court has failed to exercise the jurisdiction vested with it and passed a decree in the absence of the petitioners.
28. 18.As regards the judgment passed by the learned Revisional Court in a revision petition filed by the petitioners, the learned Judge although referred the Will Deed dated 09.08.1937, but in a casual manners and dismissed the revision petition on the ground, that the petitioners/ defendants despite service of notice did not appear and resultantly upheld the ex-parte judgment and decree, ignoring the fact that question of inheritance of the parties guaranteed by the Allah Almighty is involved. Paragraph No,15 of the judgment dated 01.08.2002 passed by the learned Additional District Judge, Mianwali, which pertains to the Will, is re-produced as under: "In the beginning it is made clear that legality or otherwise, of Will Deed dated 09.08.1937, executed by Muhammad Afzal Khan in favour of her wife Khatoon alias Ameer Khatoon and law applicable thereto may not be discussed, taken into account and decided at the time of disposal of the application under section 12(2), C.P.C. These factors are supposed to be adjudicated upon if after cancellation of the judgment & decree dated 14.07.1969 main suit is restored."
19. Section 115 of Code of Civil Procedure, 1908, confers the jurisdiction upon the Revisional Court to look into and take the cognizance of the legal infirmity, illegality and jurisdictional defect, if committed by the learned Court of first instance. It appears from the record, that the learned Revisional Court before whom the orders to dismiss the application under Section 12(2), C.P.C. and the ex-parte judgment and decree were challenged, has failed to exercise the jurisdiction vested in it. The learned Revisional Court was not denuded of powers to take notice of the fact, that the ex- parte judgment and decree is being passed on the basis of a Will Deed whereby the total legacy of Muhammad Afzal Khan is being given to his wife whereas the principal of Muhammadan Law is otherwise and secondly the Will Deed dated 09.08.1937 was produced before the revenue authority in the year 1937 to transfer the properties left by deceased Muhammad Afzal Khan in favour of his wife namely Mst. Khatoon alias Ameer Khatoon as full owner, was rejected and the order of the revenue authority was not further assailed by Mst. Khatoon alias Ameer Khatoon which resultantly attained finality. Meaning thereby, the Will Deed cannot be used, subsequently no decree can be passed on the basis of such like Will Deed.. Needless to mention, that the Revisional Court dealt with this important legal aspect of the case in a manner not required by law and has committed serious illegality which is not permitted in law.
29. 20.In review petition, which was filed by the petitioners to review the order dated 01.08.2002, the learned Revisional Court almost re-. produced the earlier order and did not even bother to deal with the defect and error, which was floating on the surface of the record.
21. The Courts always decide the matters carefully wherein the inheritance of the parties is involved. In this case, the petitioners, who are admittedly the legal heirs have been deprived from their valuable right of inheritance on procedural technicalities despite the fact, the petitioners while filing the revision and review petitions specifically mentioned the ingredients of fraud and misrepresentation played by respondents. Even otherwise where the status as heirs is not denied, the heirs in any circumstance cannot be deprived from their inheritance on technicalities like non- appearance of an heir despite service of notice. Perhaps, the law of Limitation for this reason has not made applicable in the matter of inheritance.
22. As both the learned courts below have dismissed the application under section 12(2), C.P.C. on the ground, that the petitioners despite service of summon did not appear before the learned trial Court in a suit filed by the respondents, wherein consequently an ex-parte decree was passed in the year 1967. The Hon'ble Supreme Court of Pakistan while dealing with this proposition has observed in a judgment cited as "The Punjab Province (Now West Punjab) v. Latif Ahmad Khan" (PLD 1958 SC (Pak.) 195), has ruled as under: "It is clear from these two provisions that a summons to the defendant to appear and answer the claim can only be issued after a suit has been 'duly' instituted. Until the plaint is registered, a suit cannot be said to be duly instituted under section 27 and Order V, rule 1 of the Code of Civil Procedure, and the stage is not reached for issuance of a summons on the defendant to answer the claim. This was the view, though on slightly different facts, held by the Calcutta High Court in the case of Surendra Parsad Lahiri Chowdhury v. Aftabuddin Ahmad (1) and we agree with this view. At the stage at which the trial Court had issued the notice under rule 6 of Order XXXIII, Civil P.C., the plaint was not registered and the defendant couid not be called upon to answer the claim. He was only required to offer evidence with regard to the alleged pauperism of the plaintiff.
30. There was just the possibility of the plaintiff having not been adjudged a pauper and being not in a position to pay proper Court-fee, in which case it would be incumbent on the Court to reject his plaint. The trial Court, therefore, acted illegally and with material irregularity in the exercise of its jurisdiction in prematurely putting down the case for ex-parte hearing, which ultimately resulted in the ex-parte decree under appeal. The trial Court should have, after deciding the question of pauperism and registering the plaint, issued a proper summons to the defendant under form No,1 or 2, Appendix in the First Schedule to the Civil P.C. as required by Section 27 and Order V, rule 1, of the Code of. Civil Procedure, calling upon him to answer the claim. As this was not done, the whole trial was vitiated and the ex-parte decree cannot be sustained."
31. 23.As regards the jurisdiction of this Court, under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, to deal with the matter arisen out of civil litigation, the Hon'ble Supreme Court of Pakistan in the judgment cited as "Muhammad Hussain and others v. Mst. Hanaf Ilahi and others" (2005 SCM R 1121), has observed as under:- The only point involved in this case is, whether the learned counsel appearing for respondent No,1, had the authority to withdraw the suit in the circumstances of the case in hand. The learned Single Judge of the High Court has dealt with this matter in extenso and has come to a definite conclusion that no such instruction were ever imparted by the lady to her counsel nor they are reflected from the power of attorney executed by her.The learned Single Judge, after advancing valid reasons, has exercised the discretion properly and no exception can be taken to the same."
32. 24.While deciding the question of limitation in the matter of inheritance of the parties the Hon'ble Supreme Court of Pakistan has observed in plethora of judgments, that right of succession would not be defeated by law of limitation or principle of res judicata as no law or judgment could overwrite of Shariah being a Superior Law. Reliance is placed on "Ghulam Ali and 2 others v. Mst.
33. Ghulam Sarwar Naqvi" (PLD 1990 SC 01), "Khair Din v. Mst. Salaman and others" (PLD 2002 SC 677) and "Muhammad Zubair and others v. Muhammad Sharif' (2005 SCM R 1217).
34. 25.As regards the status of Will, reliance has been placed on "Zakir Ullah Khan and others v. Faiz Ullah Khan and others" (1999 SCM R. 971) and "Muhammad Asghar and others v. Muhammad Din and others" (2000 YLR 2937). While dealing with the status of Will, the Hon'ble Supreme Court of Pakistan in the judgment supra (1999 SCM R 971) has observed in following words:-- "4. Admittedly, the said three wills were made in favour of legal heirs which purportedly affected the shares of the legal heirs of deceased Saadullah Khan to which they were entitled according to Islamic Law of inheritance. However, the second point on which leave has been granted is that, if these deeds are held to be wills, then whether these were executed by the common ancestor Saadullah Khan with the express or implied consent of the prospective heirs. There was no evidence on record to establish that the respondents, the other legal heirs who were not beneficiaries under the said wills, had expressly or impliedly consented to the said wills executed by Saadullah Khan in favour of the appellant. Mr. Safirullah Khan, learned counsel for the appellants had argued that the said transfers in favour of the appellants had been confirmed through mutations in the Revenue Records and he referred to Mutations Nos,6499, dated"
35. 08.02.1982 and 6509, dated 6-5-1982. According to learned counsel, the fact that the respondents kept quite for such a long time would amount to implied consent on their part to making of the wills in favour of the appellants. The arguments is ex facie without any substance. Mere silence of the respondents for some period would not raise an inference that they had consented to the wills made out in favour of the appellants whereby their share in the inheritance was substantially reduced. There is no evidence on record to the effect that the said wills had been executed by Saadullah Khan with express or implied consent of the respondents.
36. 26.In the judgment supra the Hon'ble Supreme Court of Pakistan has discussed the status of the Will and the law related to the Will. In this case, the respondents have failed to bring on record an iota of evidence that the alleged Will was executed by the consent of the legal heirs. Therefore, the arguments advanced by the learned counsel for the respondents are ex-facie without any substance.
37. 27.On the other hand, the law referred by learned counsel for the respondents is hardly relevant to the proposition of this case. Mostly the judgments referred by learned counsel for the respondents are relating to the cases of Specific Performance or the mutation. For instance the judgment cited as "Muzaffar Ali v. Muhammad Shafi" (PLD 1981 SC 94) relates to review; "Muhammad Afal and others v. Government of Pakistan and others" (1987 SCM R 2078) and "Ehsan Ullah v. Government of Pakistan through Secretary, Ministry of Finance, Islamabad and others"
38. (1998 SCM R 2079) relate to civil service; "Karachi Shipyard and Engineering Works Limited v. Abdul Ghaffar and 2 others" (1993 SCM R 511) relates to labor law; "Masoom Akhtar v. Rent Controller, Lahore and another" (1994 CLC 149), "Messrs Huffaz Seamless Pipe Industries Ltd. v. Sui Northern Gas Pipelines Ltd and others" (1998 CLC 1890) and "Messrs Western Brand Tea, Karachi v. Messrs Tapal Tea (Pvt.) Limited Lahore and another" (PLD 2001 SC 14) relate to the jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973; "Sameen Khan and 4 others v. Haji Mir Azad and others" (2002 CLC 754), "Kala Khan and others v. Rab Nawaz and others"
39. (2004 SCM R 517) and "Rehmat Ali and 12 others v. Abdul Hameed and 16 others" (2006 YLR 2808) relate to Limitation and Specific Relief, therefore are not applicable to this case. The other judgments relied upon by learned counsel for respondents i,e, "Muhammad Zubair and others v.
40. Muhammad Sharif" (2005 SCM R 1217), "Khalid Mehmood Butt and another v. Managing Director, AKLASC and 4 others" (2004 CLC 937), "Mst. Mumtaz Begum and others v. Abdur Rashid and others"
41. (1988 CLC 2023 Lahore) are also not applicable on the facts of the instant case. Moreover, the aforesaid propositions have already been discussed in forgoing paragraphs.
42. ' In this case, firstly the mutation was entered as limited owner in favour of Mst. Ameer Khatoon and on the promulgation of Shariat Application Act, 1964, the status of limited owner of Mst. Khatoon alias Ameer Khatoon was terminated and the inheritance mutation was entered in the name of the legal heirs/Sharers. The mutation was also entered in the name of Mst. Khatoon alias Ameer Khatoon widow of Muhammad Afzal Khan as sharer which remained intact up to the Board of Revenue.
28. As regards, the Will, it is reiterated, that the respondents have miserably failed to prove the validity of the Will, therefore, this type of G the document i,e, Will which deprive the legal heirs from their succession unlawfully should not be remained in the field.
29. In the sequel of above discussion and the facts and circumstances of this case, this Constitutional petition is allowed, the orders dated 17.10.2003, 08.01.2002 and 15.09.2001, are set aside; the case is remanded to the learned trial court and suit filed by the respondents shall deemed to be pending for its adjudication on merits by the learned trial court.
43. 30.Since it is an oldest matter, therefore, the parties to the case shall appear before the learned District Judge, Mianwali, on 24.02.2016, who will entrust the case to any competent court of jurisdiction, for its disposal. The case shall be concluded and decided positively within a period of three months thereafter, under intimation to the Deputy Registrar (Judicial) of this Court. No order as to costs.