MAULVI ANWARUL HAQ, J.--- On 20.12.81, the predecessor-in-interest of the respondents filed a suit against the petitioner. According to the plaint the suit land was owned by Fazal Hussain, who died in the year 1976 and was survived by the said plaintiffs and present respondents. According to heer Piari Jan petitioner was married to Fazal Hussain but he had divorced her. Inheritance mutation was taken-up and was attested in favour of Zeenat Mahal as widow and respondents. The petitioner filed an appeal which was dismissed by the Collector on 25.11.1993. However, her revision was allowed by the Addl. Commissioner Rawalpindi, on 3.5.1984 and she was given 1/16 share. The second revision filed by the plaintiff was dismissed by a learned Member of Board of, Revenue. A decree was sought that the said orders of the Addl. Commissioner and Board of Revenue whereby 1/16 share in the estate of Fazal Hussain has been given to the petitioner he declared to be void. The petitioner contested the suit. In her written statement she asserted that she was married to Fazal Hussain and also bore him a daughter. She vehemently denied that she was divorced by Fazal Hussain. Inter a/ia, following issue No. 1 was framed:- "Whether Fazal Hussain deceased had divorced defendant No. 1 during his life-time? OPP."
Evidence of the parties was recorded Learned Trial Court dismissed the suit vide judgment and decree dated 5.1.1995. A first appeal filed by the respondents (as by that time Zeenat Mahal had died) was heard by a learned Addl. District Judge, Rawalpindi, who allowed the same and decreed the suit on 18.3.1998 holding that the petitioner had been divorced by Fazal Hussain.
2. Learned counsel for the petitioner contends that the learned Addl. District Judge has misread the evidence and had misconstrued the law on the subject while passing impugned judgment and decree. Learned counsel for the respondents, on she other hand, has tried to support the impugned judgment and decree with reference to the case of Dr. Ashique Hussain v. 1st. Addl. District Judge & Family Appellate Court and 2 others (PLD 1991 Kar. 174).
3. I have gone through the copies of the records, with the assistance of the learned counsel for the parties. I have already reproduced material contents of the pleadings above. It will be seen that it was for the respondents to have proved that Fazal Hussain divorced the petitioner. Now at the time of evidence Muhammad Banaras the attorney of deceased plaintiff appeared as PW-1 and came out with a document Exh.P2 (duly objected to) which according to him was a divorce deed. In his cross-examination he admitted that said document is being produced in the Court for the first time. He stated that he cannot identify the signatures or thumb impression on Exh.P2. He stated that he is not witness of Exh.P2 is forged document. In rebuttal the attorney of the petitioner appeared as DW-1 and he statedthat petitioner was never divorced and that Exh.P2 is forged document.
4. Now what happened in this case was that the petitioner filed proceedings in the Arbitration Council for recovery of maintenance'. Vide order Exh.D3, dated 17.11.1969 the maintenance was awarded at the rate of Rs.40/- per month. Fazal Hussain filed a revision petition which was dismissed by the Addl. Commissioner, Rawalpindi, on 11.2.1970 vide Exh.D4. The said Officer observed that Fazal Hussain deliberately absented from the proceedings before the Chairman to whom he had been sending letters. Now document Exh.D5 is copy of order of learned Civil Judge, Rawalpindi, dated 27.1.1975. This order records that a declaratory suit filed by Fazal Hussain against Piari Jan was taken-up and since he has not produced evidence nor he has himself turned up, the suit is dismissed for non-prosecution as well as for non-production of evidence. Exh.D6 is the copy of order dated 1.11.1974 of this Court whereby W.P. No. 341/70 filed by Fazal Hussain against the petitioner and said Deputy Commissioner was dismissed for non-prosecution.
5. Now the learned Addl. District Judge has taken note of the copy of the writ petition Exh.D8 wherein Fazal .Hussain had stated that he pronounced "Talaq" upon the petitioner. He has then referred to some civil suit wherein similar statement was made. Thereafter referring to the said case of "Dr. Ashiq Hussain" he has stated that the said contents of the writ petition would constitute a valid divorce.
6. Have afraid, the said observation is wholly perverse. On the other hand, record shows that the writ petition was dismissed and that it was dismissed in the life time of Fazal Hussain. Similarly the suit was dismissed in the life time of Fazal Hussain. The only inference to be drawn is that the pleas raised in the writ petition or the said suit were not accepted by the opposite party or, the Court.
Now in the said case of "Dr. Ashiq Hussain", the said person had filed a writ petition challenging the decree of maintenance and had stated that he had divorced the respondent. His lordship referred to the evidence of the parties including the statement of the lady who stated to have been divorced and concluded that she has been divorced.
7. In the present case a declaration was sought by him that the petitioner stands divorced. The suit was dismissed for lack of evidence as also for non-prosecution. It is on record that Fazal Hussain died in the year 1976 while the suit was dismissed on 27.1.1975 in the presence of counsel for defendant i.e. Petitioner. While writ petition was dismissed on 1.11.1974. There is nothing on record not even an allegation that Fazal Hussain took any steps for restoration of the said proceedings. The result is that declaration sought for by Fazal Hussain was not granted to him while effect of dismissal of writ petition was that order directing Fazal Hussain to pay maintenance to the petitioner remained in force.
8. This is case of deliberate mis-reading of evidence on record. The civil revision is allowed. The impugned judgment and decree dated 18.3.1998 of the learned Addl. District Judge, Rawalpindi, is set aside while one passed by the learned Trial Court on 5.1.1995 dismissing the suit of the deceased plaintiff is restored. No order as to costs.