Arbab Muhammad Tahir, J.- This Regular First Appeal is directed against judgment and decree, dated 13.10.2021, passed by the learned Civil Judge 1st Class (West), Islamabad, whereby the suit of the appellant/plaintiffs seeking declaration and mandatory injunction was dismissed.
2. Succinctly, the facts are that the appellant/plaintiffs are the real brothers of Liaquat Ali (hereinafter the "Deceased"). The Deceased had passed away on 12.09.2020 leaving behind Bilqees Bibi (widow - since died) and Shamas Hussain (son - alive). As per the available record Shamas Hussain was born on 07.04.1986. On 22.01.2021, the appellant/plaintiffs/real brothers of the Deceased instituted a suit seeking declaration that Shamas Hussain is the adopted son of the Deceased. It was further prayed in the suit that appellant/plaintiffs i.e. Shoukat ali, Mushtaq Ali, Ishtiaq Ali and Razia who are real brothers and sister of the Deceased and they be declared as the legal heirs accordingly. It was alleged in the suit that the name of the real father of Shamas Hussain is Abdul Sattar. Summonses were served on the respondents/defendants. Respondent No.1 and 2 contested the suit by filing written statements. The learned trial court dismissed the application under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure, 1908 (hereinafter the "CPC") vide order, dated 30.07.2021, which was assailed in appeal. The learned appellate Court disposed-of the said appeal with the consent of the parties and framed the following preliminary issues with the direction to the trial court to decide the same at the first instance.-
1. Whether the suit is barred in view of case law reported as "Mst. Laila Qayyum vs Fawad Qayyum"
2. What should the order be?
The learned trial court, therefore, directed both the parties to produce their respective documents relied upon. In response the appellant/plaintiffs produced a document issued by the revenue authorities of Sheikhupura on 16.01.2021, whereas, respondent No.1 produced school leaving certificate, domicile certificate, death registration certificate of Liaquat Ali, Family Registration Certificate, service record of the Deceased; CNIC of respondent No.1; Secondary School Certificate of respondent No.1; Succession Certificate dated 17.12.2020; record pertaining to marriage grant; benevolent and group insurance record of Deceased; Nikahnama of respondent No.1 and application for allotment of accommodation submitted by the Deceased. After affording an opportunity of hearing to the learned counsels for the parties, the learned trial court passed the impugned judgment and decree whereby the suit of the appellant/plaintiffs has been dismissed.
3. The learned counsel for the appellant has argued that; the impugned judgment is based on misreading and non-reading of evidence available on record; respondent No.1 is the real son of Abdul Sattar and not the Deceased; in fact respondent No.1 was adopted by the Deceased; adopted son is not entitled to claim inheritance; the suit of the appellant/plaintiffs was well within time; the documents produced by respondent No.1 were not per-se admissible; the judgments of the august Supreme Court were ignored while rendering the impugned judgment and decree; the facts and circumstances of the case required a full length trial.
4. On the other hand, the Assistant Attorney General assisted by the other learned counsels for the respondents have argued that; the suit was filed after death of the Deceased and the widow Bilqees Bibi (mother of respondent No.1); they never disputed the paternity of the respondent No.1 during lifetime of the Deceased; the civil suit was instituted merely to deprive respondent No.1 from the inheritance; respondent No.1 is the sole legal heir of the Deceased and this fact is visible from the available record; the document produced by appellant/plaintiffs issued by revenue authorities of Sheikhupura was is dated 16.01.2021 i.e. after the death of the Deceased; the suit was time barred and, therefore, rightly dismissed by the learned trial court.
5. Heard. Record perused.
6. Perusal of the record shows that the Deceased was employee of Respondent No.2 i.e. Ministry of Commerce since 31.05.1982. During service, he had mentioned the name of Respondent No.1 Shamas Hussain as his son on various documents i.e. medical entitlement card, claim of marriage grant of the dependent, family registration certificate, application for allotment of government accommodation, etc. Respondent No.1 produced copy of Nikahnama, domicile certificate, CNIC, school leaving certificate, succession certificate, death registration certificate of the Deceased and Bilqees Bibi, etc. All the documents have been issued by Government departments in due course of time and carry the presumption of truth under Article 129 of the Qanoon-e-Shahadat Order, 1984.
The date of birth of respondent No.1 is 07.04.1986 and the Deceased died on 12.09.2020. There is nothing on record to show that during the lifetime of the Deceased i.e. till 12.09.2020, the appellant/plaintiffs ever disputed the paternity of respondent No.1.
7. The document produced by the appellant/plaintiffs was issued on 16.01.2021 by the revenue authorities of Sheikhupu. On the other hand, the documents produced by the respondents were prepared during the ordinary course of business by different Government entities from time to time, acknowledged and signed by the Deceased. The material placed on record by the respondents nullifies the document produced by the plaintiff. It appears that the said document has been managed to gain benefit during trial of the case. The Deceased (the father) never challenged the paternity of respondent No.1 (Shamas Hussain - son) in his lifetime and in such an eventuality Article 128 of the Qanoon-e-Shahadat Order, 1984 does not permit the appellant/plaintiffs to challenge the same. In this regard, the learned trial court has rightly relied upon the principles and law laid down by the Hon'ble Supreme Court in the case titled "Mst. Laila Qayyu m v. Fawad Qayum and others" [PLD 2019 SC 449]. The principles and law laid down in the judgment rendered by the Hon'ble Supreme Court in Mst. Laila Qayyum's case, supra, have been reiterated in the case titled "Munir Hussain and others v. Riffat Shamim and others" [2023 SCMR 6] wherein the scope of 42 of the Specific Relief Act, 1877 in the context of seeking declaration regarding paternity of a person has been examined. The relevant portion of the judgment in Munir Hussain's case, supra, is reproduced.- "The learned Judge of the High Court had referred to a number of decisions including the decision in the case of Laila Qayyu m v. Fawad Qayum (PLD 2019 SC 449) which had considered in detail the scope of a declaratory suit filed under section 42 of the Specific Relief Act, 1877 and like in that case the paternity of another was denied by the appellant/plaintiffs. In other words the appellant/plaintiffs (petitioners herein) through their suit sought a negative declaration. After considering the scope of the said section 42 and precedents this Court held in Laila Qayyu m's case that to challenge another's paternity/legitimacy was not an assertion of one's own legal character in terms of section 42. However, a person whose legal character, including paternity, was being denied such person could file a suit to claim it, but the instant case is not such a case. In Laila Qayyu m's case the appellant/plaintiffs lacked legal character under section 42 of the Specific Relief Act, 1877, and the same principle is attracted in this case. The learned counsel has also not been able to distinguish the decision in Laila Qayyu m's case from the instant one."
8. In view of the facts and circumstances of the case, the material available on record and the principles and law laid down by the Hon'ble Supreme Court in the cases of Mst. Laila Qayyu m and Munir Hussain, supra, the learned trial court has rightly dismissed the suit through the impugned judgment and decree. No legal infirmity could be pointed out so as to interfere with the well- reasoned impugned judgment and decree. Therefore, this Court holds that the instant appeal is without merit and liable to be dismissed.
9. Keeping in view the nature of the lis in hand, its consequences for respondent No.1 and acknowledging the fact that respondent No.1 has been dragged into these vexatious proceedings unnecessarily, the instant appeal is dismissed with costs. A cost Rs.120,000/- (costs of this appeal, mentioned in the affidavit of costs) is imposed on the appellant under the Costs of Litigation Act, 2017, to be paid to respondent No.1 (Shamas Hussain) within a period of two months from the date of announcement of this judgment.