' This is a petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, whereby Aamer Saeed and four others, the petitioners, want this Court to declare the order dated 27-7-1980 passed by the learned District Judge, Vehari, to be without lawful authority and of no legal effect.
2. The facts relevant for the disposal of this writ petition in brief, are that the petitioners, on the death of their father namely Saeed Ahmad moved succession application in the matter of credit balance of Rs.1,85,297.77 of late Saeed Ahmad, before the learned Civil Judge, ' Vehari who vide his order dated 26-7-1979 granted succession certificate whereby .,the petitioners were empowered to receive payment from the Banks along with the interest. Aggrieved by the certificate, M/s. Ahmad brothers' respondents herein filed petition under section 383 of the Succession Act 1925 for the revocation of the succession certificate on the grounds that late Saeed Ahmad was their employee and as a manager of the firm he had accessed to the cash of the firm for payment and a sum of Rs.1,27,152 of the firm was in his name in the Habib Bank Ltd. Mailsi, Account No. SB-1910 and No. 1707 but the petitioners having suppressed the true facts obtained succession certificate fraudulently.
3. Alongwith the petition an application under section 151, C.P.C. was moved for the suspension of the operation of the certificate which, however, was refused by the learned Civil Judge on 29-6- 1980. Feeling aggrieved by this order M/s. Ahmad Brothers respondent No. 2 filed revision before the learned District Judge, Vehari, who vide his order dated 27-7-1980 accepted the revision granting temporary injunction restraining the respondents therein i.e. the present petitioners from withdrawing the amount of Rs.1,27,152.52 till the decision of the application for revocation. Hence this writ petition.
4. The operative part of the order of the learned District Judge may be reproduced with some advantage:- "As already pointed out above, the Manager Habib Bank Ltd., Mailsi, by making a statement on 22- 7-1980 made it prima facie clear that the F.D.R. No. 158451 dated 25-2-1978 for Rs.1,50,000 was in the name of Sh. Ejaz Ahmad of the M/s. Ahmad Brothers and it was encashed on 3-9-1978 and out of that very amount of Rs.1,07,125 were deposited in account No. 1707 on that very day in the name of Saeed and Company while the remaining Rs.50,000 was deposited in the name of Saeed Ahmad SB No. 1910. It therefore follows that the petitioner has a fair question to raise and an arguable case in his favour. The balance of convenience which is really a balance of inconvenience also lies in favour of granting the injunction as the petitioner will have to file suits for the recovery of money in case the temporary injunction was refused. The amount in dispute was also considerable and the loss that might be caused to the petitioner was also serious in nature. In order to avoid multiplicity of suits also the issuance of temporary injunction seems just. 1, therefore, accept this petition for revision and the petitioner is granted a temporary injunction. The respondents are restrained from withdrawing the amount of Rs.1,27,152.52 till decision of the application for revocation on merits. The revision petition is accepted accordingly."
' The learned counsel for the petitioners has raised the following points:-
(i) That the order dated 29-6-1980 of the learned Civil Judge refusing temporary injunction being appealable, therefore, revision before the learned District Judge was not competent;
(ii) that the learned District Judge had no jurisdiction to summon and record the statement of manager at revision stage and in any case the learned District Judge could not act upon the same;
(iii) that it was not a fit case for interference in revision.
' As against this the learned counsel for respondent No. 2 while vehemently supporting the order of the learned District Judge has submitted that the order dated 29-6-1980 was passed in application under section 151, C.P.C. and as such no appeal against the same could lie; that the learned District Judge was quite competent to summon the manager, to verify the deposit of the amount with the Bank, and since the Civil Judge had failed to exercise jurisdiction vested in him it was a fit case for interference by the learned District Judge under section 115 of the C.P.C.
5. After hearing the learned counsel and going through the record 1 find that the succession certificate was issued by a Court of competent jurisdiction; that the learned District Judge while sitting in revision, summoned Muhammad Ashraf, Manager of the Bank to verify the deposit, that he recorded the statement of the Manager without oath and did not afford opportunity to the parties to cross-examine him and that to accept the revision he acted upon the statement of the Manager so recorded.
' The plain reading of the judgment of the learned District Judge indicates that he was very much impressed by the statement of the Manager and he actually acted upon the same to accept the Revision.
6. To my mind the learned District Judge under the law could not record the statement of Muhammad Ashraf, Manager, without oath and in any case since the parties were not given opportunity to cross-examine him therefore, that statement could not be taken into consideration by the learned District Judge and as such the impugned ing the revision has been passed without lawful authority.
' Resultantly the writ petition is accepted and the order dated 27-7-1980 passed by the learned District Judge in revision is hereby declared to be without lawful authority and of no legal effect.
The parties shall bear their own costs.
Writ issued.