' This petition under Article 199 of the Constitution assails the validity of the order of Additional District Judge, Khanewal passed in revision on the 27th of September, 1990, whereby he had set aside the order of Civil Judge Ist Class, Kabirwala passed on the 4th February, 1989 in a petition under section 12(2) of the Code of Civil Procedure.
2. The facts showing background, concisely stated, are that Rahim Bakhsh had died leaving behind pregnant widow (Mst. Razia Bibi respondent No,6) and the land-in-question. Mst. Razia Bibi had instituted a suit seeking it to be declared that only she as widow and the child in her womb were entitled to the succession of Rahim Bakhsh deceased to exclusion of Rajab and others, herein respondents Nos.2 to 5 and alternatively she was owner in possession of the land as donee in lieu of her Haq Maher and sought permanent injunction against getting the mutation sanctioned to the contrary effect and interference in her possession. This suit was filed on the 20th of March, 1985.
Respondents Nos.2 to 5 had contested that suit and in their joint averment claimed their possession over the land as owners, being exclusive heirs of Rahim Bakhsh deceased.
3. Mst. Razia Bibi subsequently compromised with the contesting respondents and on the basis of compromise the learned Civil Judge vide judgment and decree dated the 23rd of November, 1985 held Mst. Razia Bibi entitled to 24 Kanals and 9 Marlas out of the suit land that is 1/4 of the whole land as widow of the deceased. This was quickly followed by a petition under section 12(2) of the Code of Civil Procedure filed by Mst. Razia Bibi against the respondents on the 16th of December, 1985 assailing the said judgment and decree as having been brought about by coercion and undue influence. The learned Civil Judge Ist Class, Kabirwala, however, dismissed this petition vide order dated the 23rd of December, 1985 precisely on the ground that the plea of undue influence was not available under section 12(2) of the Code of Civil Procedure. Attempt was made to remove the legal lacuna in that Karim Bakhsh, petitioner herein, claiming to be minor son of the deceased filed the petition under section 12(2) of the Code of Civil Procedure through his maternal- grandmother Mst. Bashiran Mai averring that he being the only son of the deceased was entitled to 7/8 share in the estate of the deceased and that the judgment and decree dated the 23rd of November, 1985 passed behind his back was product of collusion and fraud. This petition was brought on the 5th of January, 1986 and was also jointly resisted by the present contesting respondents. They denied that Karim Bakhsh was son of the deceased. They also raised a couple of legal objections as to limitation and locus standi of the petitioner to bring the action.
' The learned Civil Judge had put the parties to trial on the following issues:--- Issues:
(1) Whether the decree dated 23-11-1985, is obtained with fraud, misrepresentation and without jurisdiction? OPP.
(2) Whether the application is barred by the time?
(3) Whether the petitioner is not the son of Rahim Bakhsh deceased? If so, its effect?
(4) Whether the petitioner has no locus standi?
(5) Relief.
4. The parties had adduced oral and documentary evidence and on basis thereof, the learned Civil Judge decided all the issues in favour of the petitioner and against the respondents holding inter alia that the petitioner was son of the deceased. This order and decree, however, was set aside by the order and decree of the learned Additional District Judge in revision now impugned in this Court.
5. Before grappling with the law points in this case, I would first like to discuss the case on merits.
The all important issue (Issue No,3) is if Karam Bakhsh is son of Rahim Bakhsh deceased. After perusal of the evidence of the parties I find that the learned Court below while appraising the evidence had committed gross errors. The biased approach to the issue by the learned Additional District Judge is manifest from the fact that he was not satisfied with placing of onus on the respondents to prove issue No,3. According to him it was for the petitioner to prove his legitimacy. It is a common ground that Mst. Razia Bibi is legally-wedded wife of the deceased and that is why the respondents had also conceded 1/4 share to her as indicated in order and decree dated the 23rd of November, 1985. The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten. The onus was rightly placed on the respondents and it was for them to prove that the petitioner was not born during wedlock of the deceased and Mst. Razia Bibi. Even otherwise allocation of the issue had not caused any miscarriage of justice to the parties as lot of oral and documentary evidence had been produced on the subject. Mst. Razia Bibi and her mother Mst. Bashiran Mai (R.W.3) had stated that the former was pregnant for 3/4 months from the deceased when he had died. Rahim Bakhsh had died on the 23rd of November, 1984 as indicated by ExhA.5 an excerpt from the death certificate. The veracity of the document had not been controverted by the respondents. Mst. Razia Bibi was then pregnant of 3 months. The petitioner was born on the 8th of June, 1985 as indicated by Exh. A.1, that is after completion of necessary period. This document was provded by Mian Akbar Ali, Superintendent Vaccination, Sahiwal (P.W. 1). The learned Additional District Judge could not overlook these documents in presence of explanation rendered by Mst. Razia Bibi and her mother Mst. Bashiran Mai that the former had left the village owing to fear of life to her from the respondents. And even during the trial she was brought from Okara on dates of hearing. This conduct of Razia Bibi in fact is pointer to intention of the respondents who did not want that a child from the deceased should see light of the day to inherit the property. The testimony of Lady Doctor Naseeb Ahmad (P.W. 4) is very significant. It likewise aforementioned document was also misconstrued by the learned Court below. Vide report Exh. A.2 she had examined Mst. Razia Bibi and found her pregnant and in her second examination on the 28th of March, 1985 she had found Mst. Razia Bibi to be pregnant of 20 weeks. The petitioner was born on the 8th of June, 1985 which means that the petitioner was born 7/8 months after conception and the birth was not earlier than the expiration of six lunar months from the date of marriage. The birth, therefore, was to be believed as conclusive proof of legitimacy under Article 128 of the Qanun-e-Shahadat. In fact what clinches issue is Exh. R. 3 another excerpt from birth certificate. This document was disowned by Mst. Razia Bibi and was placed on record by the respondents. They, therefore, cannot turn back on it and escape legal consequences arising out of it. It is not the case of the respondents that child other than the petitioner was born and had died or is untraceable. The certificate mentions the name of the petitioner as having been born of Rahim Bakhsh deceased on the 25th of August, 1985. If this be taken as correct, then the petitioner was born after full period as recorded by the Lady Doctor. The discrepancy between documents as to if the petitioner was born after 9 months or after period of little more than 7 months, hardly matters to determine the legitimacy. The oral evidence of the respondents to controvert the said overwhelming documentary evidence was rightly ignored by the learned Civil Judge. The learned Additional District Judge surprisingly disparaged and rejected the documentary evidence on the premises that there was discrepancy in the documents (which was insignificant) with respect to the date of birth of the petitioner and the age of Mst. Razia Bibi. He was also influenced by the order of the learned Civil Judge dated the 15th of October, 1985 whereby Mst. Razia Bibi was directed to appear before the Professor of Forensic Medicine, Nishtar Hospital, Multan in order to check if she had been ever pregnant or the petitioner was her son. The respondents, however, had compromised with Mst. Razia Bibi before the next date of hearing. Non-appearance of Mst. Razia Bibi before the Doctor was injustly taken as circumstance which had wiped out her entire evidence.
The learned Civil Judge had also adverted to this question and explained that since the respondents had not paid the charges of Rs, 350 as fee of the Doctor, as directed by the Court, therefore, no Robkar was issued to Mst. Razia Bibi to appear before the Doctor on a given date.
Therefore, the consequences of non-apprearance of Mst. Razia Bibi could not be debited against her.
6. For reasons aforementioned I agree with the findings of the learned Civil Judge on issue No,3 and the learned Additional District Judge had caused miscarriage of justice to the petitioner by misreading the material documentary evidence. I, therefore, hold that the petitioner is legitimate child of the deceased.
7. Issue No, 1 relates to the question if the decree dated the 23rd of November, 1985 was obtained with fraud. This issue was decided against the petitioner mainly on the ground that Mst. Razia Bibi had not visited the hospital for examination. This reasoning has been adverted to and repelled above. Even otherwise the issue is rendered of academic interest. The petitioner was already born when the order and decree dated the 23rd of November, 1985 was passed. He as the only son of the decased had to take 7/8 share and his mother Mst. Razia 1/8 share from the estate of the deceased. The decree passed in absence of the petitioner was destitute of legal efficacy.
8. Issue No,2 as to limitation, was also righly answered by the learned Court of first instance as the petitioner could even sue three years after attaining the majority but he had done the job long before. The learned Additional District Judge had not taken care of the issue and, therefore, presumption is that he had affirmed the findings of the learned Civil Judge.
9. Issue No,4 as to if the petitioner had locus standi to file the petition under section 12(2) of the Code of Civil Procedure stands automatically decided in view of the verdict on issue No, 3 about his legitimacy.
10. Now I take on legal contentions raised by the learned counsel for the contesting respondents.
The learned counsel is skeptical about jurisdiction of the Court to intervene in the Constitutional petition in view of the pronouncements of the Supreme Court. The cases are Jan Muhammad Khan v. Shah Mir Hussain and others 1985 SCM R 2029, Mst. Zaidat v. Shahadat and others 1989 SCM R 1392 and Yaqub Masih Jacob v. Mrs. Lousia De'Souza 1992 SCM R 1799.
11. First ruling in fact is in line with the case-law cited by the learned counsel for the petitioner that is Muhammad Zahoor and another v. Lal Muhammad and 2 others 1988 SCM R 322 and Muhammad Ismail v. L.DA. etc. NLR 1988 Civil 438 with ratio that Constitutional jurisdiction of High Court under Article 199 (5) extends to reviewing the orders of a Court or Tribunal and that the High Court was justified in interfering with concurrent finding of fact (here the judgments are at variance) when the Courts below had arrived at an erroneous conclusion which was based on misreading of documents. The Supreme Court's decision in Mst. Zaidat's case arose out of different facts. The dictum laid down in Yaqub Masih's case also cannot be interpreted in favour of the respondents as there was ruled "concurrent findings of fact could only be interfered with, if there was any misreading of evidence by Courts below or Courts had arrived at findings ignoring any material piece of evidence on record". In the instant case the finding was not concurrent and secondly the Court below had ignored material piece of evidence on record, as discussed (supra).
12. The learned counsel for the respondents has next contended that the petitioner being not a party to the proceedings under section 12(2) of the Code of Civil Procedure resulting in the order and decree dated the 23rd November, 1985 could not challenge the same in his petition under section 12(2) of the Code of Civil Procedure.
13. The term "person" occurring in section 12 of the Code of Civil Procedure is not to be narrowly interpreted so as to restrict is to refer to only a judgment-debtor or his successors but it should be read to include any person even though not a party to the decree. So was ruled in Ch. Jalal Din v.
Mst. Asghari Begum 1984 SCM R 586 wherein the respondent who was neither judgment-debtor, nor successor-in-interest of judgment-debtor qua decree but claiming to be legal heir of deceased was held to have locus standi to file the petition under section 12(2) of the Code of Civil Procedure for setting aside the decree. The petitioner as aggrieved person and robbed of his entire share in the property of his deceased father, was competent to challenge the order and decree dated the 23rd of November, 1985.
14. In view of what has been discussed above, I accept the Constitutional petition and set aside the impugned judgment and decree of the learned Additional District Judge with the result that his petition under section 12(2) of the Code of Civil Procedure stands accepted and the order and decree dated the 23rd of November, 1985 set aside. The parties however, to bear their own costs.