' CH. RAHIM DAD KHAN, C. J.-This petition for leave to appeal, against the order of the HO Court dated 22-10 1975 whereby revision petition filed by the petitioner against the interlocutory order of the Sub-Judge, Mirpur, dated 20-7-1975 was dismissed, arises out of a suit filed by the petitioner
(wife) in the Court of Sub-Judge, Mirpur, for repudiating the marriage by the exercise of option of puberty.
' Before framing the issue wife was directed by the trial Court to appear in person so tau she may be examind as party. This was neceuitated on submission of the husband that the wife had acquiesced in and does not wish to avoid marriage any more.
' We have head the learned Advocate for the petitioner an considering the submissions made before this Court are of the view that there is no justifiable ground for interference in the interlocutory order of the trial Court. It is a discretionary order which is well-reasoned. It is not shown as to how the discretion in this case has been exercised by the Sub Judge, Mirpur in a .Manner not warranted by law.
' The learned Advocate for the petitioner relying on AIR 1933 All. 517 submitted that under Order X, rule 4, Civil Procedure Code the Court could direct the personal attendance of the petitioner only where her pleader was either unable to answer material question or refuse to answer such question. Since no such occasion had arisen for the pleader of the petitioner to express his inability to mate answer, the order of the trial Court, according to him, was irregular and premature. In the case cited by the learned Advocate for the petitioner the revision was dismissed. Still, considering the facts of this case we are of the opinion that the law laid down in that case, has no bearing in the present case as in the instant case the question involved is not admission of execution of certain document but relates to repudiation or acceptance of the marriage that was allegedly performed during the minority of the wife and about which confirmation of the Court is sought. The husband submitted before the trial Court that the wife (petitioner) does not wish to repudiate the marriage and would not support the plea taken in the A plaint in cue she is examined by the Court.
In these circumstances the learned trial Judge in exercise of its discretion rightly directed the personal appearance of the wife for examining her before franing of the issues.
' The petitioner might have been minor under the Azad Jammu and Kashmir Majority Act but according to Muslim Personal Law, under which she had brought the suit, she alone can exercise the option of puberty for repudiation of her marriage when she reaches the age of puberty. As such it is for the Court to ascertain from the wife whether she approves the marriage or not. In such cases, wife alone, on coming of age of puberty can choose whether marriage shall be confirmed or annulled and she alone can state before the Court whether she approves the marriage or not. Her approval or repudiation before the Court would resolve the matter s authentically. Even otherwise it is always useful if the Presiding Officer before framing issues resorts to examination of the parties as that would help in determining real points of dispute between the parties and would in most cases help in taking cognizance of questions which cut at the very root of subject matter of controversy. Order XIV, rule I, sub-rule (1 Civil Procedure Code gives ample power to the Courts in this respect and we find no cogent reason to interfere with the discretion in the matter exercised by the trial Court.
' There is no force in this petition hence it is rejected. Since no notice has been issued to the respondents no order is made as to costs.
P D 1978 SC(AJ& K) 62 Preses t Chaudhury Rahim Dad Khan, C.J. And Malt Muhammad Aslam Khan, ALLAH DITTA-Petitioner versus Mst. ALAM BIBI-Respondent Civil Petition for Leave to Appeal No, 54 of 1976, decided on 7th February 1978.
(Petition for special leave to appeal against the judgment of High Court dated 17th April 1976).
(.) And Ammo & Kasha& Walla Coratitsilos Act, 1974- -- Art. 42-Special Leave to Appeal to Supreme Court-Plaintiff and her witness standing test of cross-examination and no suggestion made to them of plaintiff having been born before dissolution of plaintiff's mother's first marriage-Defendant not adducing satisfactory evidence in rebuttal of plaintiff's evidence of having been born during lawful wedlock with father of plaintiff and defendant-Statements of defendant and his witness, on other hand, leading to inference in favour of plaintiff's claim-Plaintiff, held, born during lawful wedlock of her mother with defendant's father- Even otherwise, concurrent findings of Courts below on question of fact, held further, conclusive in appeal before Supreme Court and not liable to interference unless based on misreading of evidence or I eproper appraisal of evidence by High Court resulting in failure of justice. [p. 63i & Muhammad Bashi?' v. Mst. Rehmat Bib! 1970 SCMR 478 ref. (b) Mame Ad (I d 1872)- S. 32-Statements relating to existence of relationship-Declarations of deceased relatives- Admissible only when "lls mota", Le., made before commen:ement of any controversy relating to matters of family pedigree-Statement of person made in another civil suit when question already raised in previous sait between parties Cannot be taken into consideration in later suit-Words "before the question in issue was raised" occurring in S. 32-Exclude all statements made after start of controversy between parties regarding paternity. [p. 64]C Raja Muhammad Akrant Khan for Petitioner.
' CH. RASHIM DAD KHAN, C.J.-The dispute in this petition for Special Leave to Appeal relates to 1/3rd share of the property lets by Jam no deceased, In Village Thera, Tehsil and District Mirpur, which is claimed by respondent-plaintiff (by right) as daughter.
2. The estate left by Jammo, on his death, was entirely mutated in the name of his son Allah Ditta petitioner ; whereupon Mst. Alam Bibi instituted the present suit for declaration of her title and joint possession to the extent of her share in the estate in the Court of Sub-Judge, Mirpur. Allah Ditta petitioner admitted that she was born to Mst. Hussain Bibi, his step mother, but controverted her claim regarding her paternity alleging that she was boa; to Mst. Hussain Bibi before her marriage with Jammo his father.
3. It was found by the trial Court, after recording evidence, that Mst. Alam Bibi was born during the valid marriage of Mn. Hussain Bibi with Jammo and that she was, therefore, entitled to inherit I/3rd share in the property left by Jammo. The finding of the trial Court was neither disturbed by the first appellate Court nor by the High Court on second appeal. Thus there are concurrent findings of all the Courts below and this being essentially a finding on a question of fact cannot be disturbed unless it is shown that there is gross misreading of the evidence or perverse appreciation thereof.
4. The determination of the question of paternity of Msr. Alam Bibi respondent in the instant case, in fact, settles the dispute on which question there is unanimous finding of all the Courts below to the effect that she was born during the valid marriage between Mst. Hussain Bibi, her mother, and Jammo deceased and as such entitled to inherit 1/3rd share of the property left by Jammo. The concurrent findings of all the Courts on question of facts is conclusive in an appeal before this Court and is not A liable to interference unless of course there is misreading of evidence or improper appraisal of evidence by the High Court resulting in failure o Justice.
5. In the instant ease It appears that during the trial before the Sub-Judge, Mirpur, the parties examined a number of witnesses, after careful examination of that evidence the trial Court accepted the claim of the pla plaintiff respondent and decreed the suit in her favour. This finding of the trial Court has- not been disturbed either by the first appellate Court or the High Court.
Witnesses examined by Mat. Alam Bibi respondent plaintiff clearly testify to the fact that she is the daughter of Jammo born during the valid marriage between him and Mal. Hussain Bibi. All the Courts below have rightly come to the conclusion that there is no reason to disbelieve their testimony. Muhammad Hussain P. W., Atte Muhamma P. W. And Mst, Alam Bibi plaintiff, who herself appeared in the witness-bo all have stood the test of cross-examination. No suggestion was made durin their cross- examination either to Muhammad Hussain or Mat. Alam Bi plaintiff that she was born before the dissolution of Hussain Bibi's first manias with Baroo or her second marriage with Jammo. The defendant-petition did not adduce satisfactory evidence In rebuttal j rather, as pointed out b the trial Court, the statements of defendant and his witnesses when critical!
Examined lead to the inference in favour of the claim made by the plaintiff that she is the daughter of Jammo. In a case where the claim of a person not only borne out from the testimony of witnesses produced by such person but also finds support from the statements of the witnesses examined by the opposite-party that would establish the claim beyond doubt because In the circumstances and facts of the case the mind naturally and logically would draw the inference of legitimacy in favour of the plaintiff.
6. The learned Advocate for the petitioner was unable to show as to how the statement of one Bagh Ali, made in another case, can be moldered In the instant case when Bagh Ali, though being alive was not examined as witness ; rather he was given up by the defendant-petitioner after obtaining summons from the Court for his appearance as witness of the defendant. {{BLUR PAGE}} Bagh Ali is ad.Tatecny The t1atement sodibt to be gclied upor., n the ease relates to the questitIOA of paternity of Mani rbI. Which statement was made by a relative when the controversy had fnatted. Only such actkentions f ta...Leneetre 7,elativw wINiGh A% Or Mie:.1. t, f. .Aaado {{BLUR PAGE}} before the commencement of any controversy relating to the matters of family Pedigree are admissible under section 32 of the Evidence Act. Statement of a person, made in another civil suit, when the question had already been raised in previous litigation between the parties cannot be taken into consideration in the later suit ; for the reason that the words 'before the question in issue was raised' excludes all such statements made after the start of the controversy between the parties regarding paternity of their plaintiff. The statement of Bash All made in another suit after controversy regarding paternity had started would be inadmisable In the instant cue.
7. In short the finding that Ms:. Alam Bibi is the daughter of Jammo and as such entitled to inherit the property left by him alongwith her step-brother, under Muslim Law, is based on proper appreciation of the evidence produced in the case and all the three Courts below have returned unanimous verdict on the point. As such it is not susceptible to interference. Supreme Court of Pakistan in a case entitled Muhammad Bash& v. Mst. Rehmat Bib! (1) in identical circumstances refused to grant leave to appeal In a case where the question of paternity was involved and held :- "There being concurrent finding of fact on the question of paternity of respondent No 1, it is not open to this Court to re-open this finding unless the finding is against the evidence and perverse resulting in miscarriage of justice."
8. As to non-interference by Supreme Court in case of concurrent finding of fact arrived at by the Courts below there are number of other authorities of the Supreme Court of Pakistan which need not be referred to because there is no controversy regarding the proposition.
' In view of the clear finding of facts arrived at by all the Courts below which is neither perverse nor against the weight of evidence, we do not feel inclined to interfere with. Hence the petition for leave to appeal is dismissed. No order is made as to cost Lease refused.
(1) 1970 SCM R 478