' The relevant facts which gave rise to the present revision petition are that on 31-3-1987 Mst.
Hussain Akhtar respondent moved an application in the Civil Court, Toba Tek Singh for the issuance of a succession certificate in respect of the effects of Ghulam Abbas deceased. She claimed herself to be the widow of the said deceased. The requisite certificate was issued in her favour vide order dated 1-6-1987. On 22-12-1987 Mst. Hamida Begum petitioner who claimed, herself to be the widow of Ghulam Abbas deceased applied for the revocation, of the certificate issued in favour of the respondent and requested for the issuance of a certificate in her name on the ground that she had no notice of respondent's application. She further alleged that Mst. Hussain Akhtar respondent could not prefer any claim over the effects in dispute because she had been divorced by the deceased prior to his death. The said application was resisted by, the respondent and on the pleadings of the parties, the following issues were framed on 5-44989:-
(i) Whether the present petition is not maintainable in the present forma? O.P.R.
(ii) Whether the Succession Certificate dated 8-6-1987 issued in favour of Mst. Hussain Akhtar is liable to be set aside as prayed for? 0.PA.
(iii) Whether the respondent Mst. Hussain Akhtar is entitled to special costs; if so, to what extent?
O.P.R.
(iv) Relief.
2. The parties were directed to produce their evidence on 7-6-1989. She could not produce. The said evidence on the said date and also on the adjourned date of 27-7-1989. The case was then adjourned to 23-9-1989 for the same purpose. On that day, the parties' counsel were present but neither the petitioner nor her evidence was present, as a result of which the application was dismissed for want of evidence. Feeling aggrieved, the petitioner lodged an appeal but her appeal was dismissed on 28-24990. Still not satisfied, the petitioner has lodged, the present revision petition to assail the above-mentioned orders of the two Courts below.
3. I have heard the parties' learned counsel and have also gone through the material available on record.
4. Learned counsel for the respondent has raised a preliminary objection to the maintainability of the present revision petition. According to him the order dated 23-9-1989 passed by the learned Civil Judge was not appealable under section 384 of the .Succession Act, 1925, hereinafter called- the Act, and thus the appeal of the petitioner before the learned District Judge and the present revision petition against the order dated 28-2-1990 passed in the said appeal were incompetent.
Section 384 of the Act reads as follows:- "(1) Subject to the other provisions of this Part, an appeal shall lie to the High Court 'from an order of a District Judge granting, refusing or revoking a certificate under this Part, and the High Court may, if it thinks, fit, by its order on the appeal, declare the person to whom the certificate should be granted and direct the District Judge, on application being made therefor, to grant it accordingly, in supersession of the certificate, if any, already granted.
(2) An' appeal under subsection (1) must be, preferred within the time allowed for an appeal under the Code of Civil Procedure, 1908 (V of 1908).
(3) Subject to the provisions of subsection. (1) and to the provisions as to reference to and revision .By the High Court and as to review of judgment of the Code of Civil Procedure, 1908 (V of 1908), as applied by section 141 of that Code, an order of a District Judge under this Part shall be final."
' Learned counsel has maintained that under the above provision only those orders are made appealable whereby a. Succession certificate is either granted or refused dry revoked and no .Appeal lies against any other order. He is of the view that the impugned order, at the most, could be considered to be an order refusing to revoke a succession certificate and as such the same was not appealable under the aforesaid provision of the Act. The objection appears to be misconceived. It is true that by the impugned order the learned Civil Judge, in essence had refused to revoke the certificate issued in favour of the respondent and such an order was not appealable but the application of the petitioner was not confined to the prayer for the revocation of the certificate in question only. In the said application the petitioner had also prayed for the A issuance of a succession certificate in her name in place of the 'one issued in favour of the respondent. Thus the impugned order dated 23-9-1989 was also an order refusing to grant succession certificate to the petitioner and therefore the same was appealable under section 384 of the Act. An appeal against the said order was competent before the District Judge under section 388 ibid. The present revision petition, therefore, is quite competent. The objection raised by the learned counsel for the respondent is consequently overruled.
5. This brings us to .The question if the petitioner's evidence was rightly closed under Order XVII, rule 3, C.P.C. .Perusal of the record reveals that issues had been framed on 5-4-1989 and the case was adjourned to 7-6-1989 for the petitioner's evidence. When the case was laid before the Court on the said date the following order was passed:- {{URDU TEXT}} ' On 27-7-1989 the Court passed the following:- {{URDU TEXT}} ' When the case was put up on 23-9-1989 neither the petitioner nor her evidence was present.
Consequently the learned trial Court passed the following order:- "Present: Counsel for the parties. The petitioner's evidence is not present nor the petitioner is present in person for making his (sic) statement therefore, the present petition is dismissed for want of evidence.
(Sd.) C.J. Ist Class, T.T.Singh."
6. From none of the above-mentioned orders it is. Shown that the case had been adjourning from 7-6-1989 to 27-7-1989 to 23-9-1989 on the request of the petitioner. It is however, revealed from the above-mentioned orders that the respondent had not objected to the above-mentioned adjournments and thus it would not be unjustified to infer that in the present case the suit had been adjourned from one date to another on the request of the parties' counsel and would not mean that the adjournments had been granted solely on the request of the petitioner. In this view of the matter I would hold that the case was not adjourned to 23-9-1989 at the instance of the petitioner. In this regard reliance is placed on Maulvi Abdul Aziz Khan v. Mst. Shah Jahan Begum and 2 others (PLD 1971 SC 434) and Syed Tasleem Ahmad Shah v. Sajawal Khan etc. (1985 SCM R 585). The provisions of Order XVII, rule 3, C.P.C. Therefore, were not attracted to the present case, especially when on 27-7-1989 some of the petitioner's witnesses were present and it was the learned trial Court, perhaps, who did not deem it proper to record their statements and adjourned the case. Valuable rights of the parties were involved in this case and therefore, in the circumstances of the case the learned trial Court should have shown a bit more indulgence to the petitioner by granting another adjournment subject to the payment of costs so that the case could be decided on merits. Learned appellate Court has also failed to take into consideration this aspect of the case and thus has reached a conclusion which does not have the support of the law laid down by the superior Courts. 1, therefore, have no hesitation' in holding that .The closure of the petitioner's evidence in the present case was not justified. The two Courts below have committed an illegality which calls for interference by this Court in exercise of the revisional jurisdiction.
' Consequently the revision petition is accepted, the impugned orders are set aside and the application filed by the petitioner stands restored. The parties are directed to appear before the learned Senior Civil Judge, Toba Tek Singh on 17-10-1992, to whom this case is entrusted for disposal. He shall give one last opportunity to the petitioner for the production of her evidence subject to the payment of Rs,500 as costs. Parties to bear their own costs.