' Judgment of the learned Additional District Judge, Lahore, dated 3-7-1999, whereby, the revision, filed by the petitioners was dismissed by him, has been assailed through this petition under Article 199 of the Constitution which arises in the following circumstances.
2. A suit for partition was filed by respondents Nos.1 and 2 claiming themselves as daughters of Muhammad Siddique deceased. Written statement was filed by the petitioners/defendants. It was, inter alia, pleaded that the plaintiffs/respondents had no connection with Muhammad Siddique nor entitled to inheritance. Issues were framed by the learned trial Court, where after, evidence of the parties was recorded. Mst. Jamila Akhtar, respondent No,1, entered appearance as P.W.2 and produced birth certificates Exhs.P.1 and P.2 showing herself and Mst. Shakila Akhtar as daughters of Muhammad Siddique deceased. The production of these two certificates was objected by the petitioners. Their objection was noted by the learned trial Court and decision to that effect was deferred to be taken at the time of arguments. It is stated that thereafter evidence of the petitioners/defendants was also recorded wherein the depositions of the witnesses was that the defendants Muhammad Siddique had no other issue. An application was made by the petitioners/ defendants before the Health Officer, Lahore Metropolitan Corporation, Lahore, wherefrom the certificates Exhs.P.1 and P.2 had been issued, for the verification of the said certificates on which it was reported that the certificates were bogus.
3. The petitioners/defendants, therefore, made an application before the learned trial Court for summoning of the record from the Lahore Metropolitan Corporation, Lahore in order to verify the contents of the birth certificates Exts.P.1 and P.2 which application was contested by respondents Nos.1 and 2. The said application was dismissed by a learned Civil Judge, Lahore vide his order, dated 30-11-1998, where against, a revision was filed by the petitioners which was dismissed by a learned Additional District Judge, Lahore vide judgment, dated 3-7-1999. Finding no other remedy against the impugned orders, this petition under Article 199 of the Constitution has been filed by the petitioners.
4. It is contended by the learned counsel for the petitioner that a serious issue as to the claim of respondents Nos.1 and 2 whether they were daughters of Muhammad Siddique and the genuineness of the birth certificates Exhs.P.1 and P.2 had arisen and in view of the report by the official of the Lahore Metropolitan Corporation, Lahore that the said certificates were bogus, therefore, the only method to resolve this controversy was the perusal of the original record pertaining to Exhs. P.1 and P.2 and that the denial of the said prayer has resulted in miscarriage of justice, as such, the orders are illegal having been passed without due application of mind to the controversy and the object/purpose of the application.
5. As against this, the learned counsel for respondents Nos.1 and 2 contends that although the certificates Exhs.P.1 and P.2 were not filed with the plaint, yet the same were filed soon after the framing of the issues and were duly admitted into evidence by the learned trial Court and marked as Exhs.P.1 and P.2. It is contended that the evidence of the petitioners was completed on 8-9-1997, whereas, the application, filed by the petitioners before the Corporation Authorities was much afterwards on which report, dated 24-11-1997 was made and relied upon by the petitioners. It is contended that the application was belated and aimed at to prolong the litigation. It is further contended that while rejecting the said application for summoning of the record from the Lahore Metropolitan Corporation, the view concurrently recorded by the two Courts below, cannot be upset and interfered with in writ jurisdiction. Reliance has been placed on Mst. Fazal Begum v.
Bahadur Khan and another PLD 1983 Lah. 365 and Muhammad Khalid v. Muhammad Munir and 2 others PLD 1982 Lah. 630 to support his contentions. It is further contended that the birth certificates are public documents which could be received in evidence by the Courts.
6. The exercise of jurisdiction under Article 199 of the Constitution is dependent upon the facts and circumstances and the nature of controversy of a case. It cannot be laid down as a principle of universal application that in every case where the additional evidence or the summoning of the records allowed or declined the jurisdiction cannot be exercised. It may be exercisable keeping in view the peculiar nature of the controversy. The precedents relied upon by the learned counsel for the contesting respondents proceed on the peculiar facts of those cases and are not apt for application to the present case.
7. In the instant case a serious issue as to the entitlement of respondents Nos.1 and 2 claiming themselves as daughters of Muhammad Siddique had arisen in which the birth certificates, issued by the Lahore Metropolitan Corporation were produced in support of their claim that they were indeed daughters of Muhammad Siddique deceased. The assertion of the said respondents had been denied by the petitioners in their written statement as also the depositions of the witnesses. In order to verify the contents of the Birth Certificates Exhs.P.1 and P.2, an application was made before the Lahore Metropolitan Corporation on which it was reported that the same were bogus. Now this controversy had to be resolved as to whether the said certificates were issued by the Corporation and were genuine or bogus, the only method for doing the same was the availability and perusal of the original record of the Corporation. To me, it appears that, the summoning and perusal of the record of the Lahore Metropolitan Corporation relating to Exhs.P.1 and P.2, was necessary.
8. The contention of the learned counsel for the contesting respondents that it was a belated move on the part of the petitioners, is not tenable. Admittedly, the certificates were not produced alongwith the plaint and were produced after the framing of the issues. The petitioners/defendants, thus, had no opportunity to rebut the same earlier except when the same were produced. The said certificates were exhibited on 8-9-1997, where after, an application was made by the petitioners/defendants to the Corporation and report, dated 24-11-1997 was made as to their being bogus. Soon thereafter, i,e, 5-12-1997, an application for summoning of the record pertaining to Exhs.P.1 and P.2 (birth certificates) was made before the learned trial Court. I am, thus, not inclined to entertain this argument that it was a belated move on the part of the petitioners.
9. Indeed, the contest and the opposition shown by respondents 1 and 2 to such an application has left me wondering as to why the comparison of the birth certificates with the original record had so seriously been opposed by them. It was necessary for the just decision of the case. In Khurshid Ali and 6 others v. Shah Nazar PLD 1992 SC 822, it was observed as follows:-- "It is incorrect to think now under an Islamic dispensation that the Courts are only to sit and watch as to who commits a mistake and who does not commit a mistake, from amongst the contesting litigants, and one who commits a mistake in procedural matters should be deprived of the right claim; even if he is entitled to it. 'This Court has not approved of such like practice. See Muhammad Azam v. Muhammad Iqbal PLD 1984 SC 95. In this case even if the application had not been pressed ' so-called' ; if it was necessary for just decision of the case, as held by the High Court (to summon the material relied upon by the appellants side), it should have been summoned and treated as evidence in the matter without any formalities. And mere failure to exhibit a document formally would not make any difference.
In the light of what has been stated above, the error having been committed by the trial Court in this case in not summoning the original register and other material evidence for just decision of the case, here is no alternative but to allow this appeal and remand the case to the trial Court for fresh decision. The application made by the appellants for summoning the record including the register is allowed." (Underlined by me for contextual relevance)
The principle so laid down in the above case is fully attracted to the facts and circumstances of the present case inasmuch as both the Courts below failed to comprehend the controversy, the object of the application for summoning of the record and the necessity of the record, the presence and perusal of which would have been essential for just decision of the case.
' In view of the above, the judgment of the learned Additional District Judge, Lahore, dated 3-7-1999, whereby, the revision, filed by the petitioners, was dismissed as also the order of the learned trial Court is declared as illegal and of no legal effect, as a result whereof, the learned trial Court shall summon "tie original record/register of births to compare and determine authenticity or otherwise of Exhs.P.1 and P.2. I am informed that the evidence of both the parties is complete. Therefore, it will be expected of the learned trial Court to summon the record indicated above expeditiously in order to avoid any delay in the matter. This petition is accordingly accepted.
' No order as to costs.