PLJ 2022 Lahore 437
[Multan Bench, Multan]
Present: Sultan Tanvir Ahmad, J.
Mst. SHAHNAZ PARVEEN--Petitioner
versus
Mst. ASMA KALSOOM & 20 others--Respondents
C.R. No. 113 of 2018 & C.R. No. 1674 of 2017, decided on 13.9.2021.
Civil Procedure Code, 1908 (V of 1908)--
----S. 42--Suit for declaration--Decreed--Appeal Filing of application
for impleadment as party during pendency of appeal--Accepted--Matter was remanded--Producing of documents at appeal stage
by respondent--Determination of documents--Challenge to--Admissibility of documents cannot be determined without giving chance to parties to exhibit same and or chance to produce makers and witnesses of documents--Any ruling as to authenticity of documents without proper examination can result into miscarriage of justice and at same time shall prejudice trial and/or appeals-- Order of remand by Appellate Court is simply a matter sent to trial Court for re-examination and this order is not final determination of rights of parties--Discretion exercise by Appellate Court is neither unwarranted nor unjust in circumstances--Counsel of petitioner has failed to make out any case of material irregularity or illegality, requiring interference in revisional jurisdiction--Revision petition dismissed. [Pp. 439 & 441] A, C & D
PLD 1962 SC 291 ref.
Power of Court--
----Court is empowered, at all stages of proceedings, to add any party or parties whose presence before Court is necessary to adjudicate upon real matter in dispute or when presence of parties is necessary to enable Court to effectually and completely adjudicate upon matter.
[P. 439] B
Malik Muhammad Tariq Nonari, Advocate for Petitioner (in Revision Petition No. 113-2018).
Mr. Iqbal Hussain Jafri, Advocate for Respondents.
Mr. Iqbal Hussain Jafri, Advocate for Petitioner (in Revision Petition No. 1674-2017).
Malik Muhammad Tariq Nonari, Advocate for Respondents.
Date of hearing: 13.9.2021.
Judgment
Through this single judgment, the captioned revision petitions being outcome of same order, alongwith all the civil miscellaneous applications, shall be decided together.
2. The present revision petitions are arising out of the consolidated order dated 23.10.2017 passed by learned Additional District Judge, Khanewal in civil appeals.
3. The facts, necessary for the decision of these civil revisions, are that Mst. Shahnaz Parveen (the 'Petitioner') obtained a judgment and decree dated 22.02.2016 in civil suits No. 59 of 1997, whereby she was declared as lawful daughter of Hussain Ahmad Khan and Mst. Khursheed Jahan and Mutation No. 183 dated 19.01.1972 was cancelled. The Petitioner was held entitled to inherit the estate of her parents alongwith sisters namely Mst. Munawar Jahan and Mst. Raees Jahan and brother Sarwar Ali Khan. Appeals were filed by unsatisfied defendants.
4. Mst. Asma Kalsoom (the 'Respondent No. 1') filed applications under Order 1, Rule 10 of the Code of Civil Procedure Act, 1908 in the referred appeals. Learned Additional District Judge, Khanewal on 23.10.2017 while accepting the applications, ordered to implead her as party in the suits as defendants. The entire matter was remanded to the learned trial Court with the direction to obtain the written statement of Respondent No. 1, frame proper issues and to decide the matter after recording evidence, if any produced. Said order has been challenged by way of present revision petitions.
5. Malik Muhammad Tariq Nonari, learned counsel for the Petitioner, while arguing the case submitted that the documents relied by the learned Appellate Court are fake and forged; that Madrasah/School certificate is inadmissible as the certificate produced contains a stamp which say "copy to copy is not admissible in Court" and further contended that the relevant school has refused to recognized the document; that similarly Marriage Certificate issued by Government of Punjab having entry dated 06.04.2016 is bogus; that Family Certificate has been ignored by the learned Appellate Court. Learned counsel for the Petitioner has argued that suit titled "Mst. Kalsoom v. Manager NADRA" was filed on 16.06.2016 for correction of the name of father which was dismissed, likewise, some other suits for correction of the names were also dismissed. It has been further argued that the order of remand by the learned Appellate Court is illegal and the learned Appellate Court should have obtained the evidence itself instead of making the order of remand.
6. Conversely, Mr. Iqbal Hussain Jafri, learned counsel for the Respondents, has opposed this revision petition and submitted that the documents produced with this revision were never produced before the learned Appellate Court and the same were obtained after the decision of remand by influencing the authorized person.
7. I have heard the arguments and with the able assistance of the learned counsel for the parties record is perused.
8. Respondent No. 1 at the appeal stage produced the certificate, which shows her name as Mst. Asma Kalsoom, daughter of Muhammad Sarwar Ali Khan. Her Marriage Certificate with one Malik Irshad Hussain, which was issued on 06.04.2016, is reflecting the same. Divorce Deed dated 30.06.1998 is produced before learned Appellate Court, whereby Muhammad Sarwar Ali Khan has allegedly divorced the mother (Mst. Khalida Parveen) of Respondent No. 1. Though, the learned counsel for petitioner has countered these documents by placing on record certificate issued by the school and a marriage certificate dated 27.05.2016 which contains name of one Abdullah in column of the father's name and other documents have also been relied upon, which contradict the stance taken by the Respondent No. 1.
9. The admissibility of aforementioned documents cannot be determined without giving chance to the parties to exhibit the same and/or the chance to produce the makers and witnesses of these documents. Any ruling as to the authenticity of these documents without proper examination can result into miscarriage of justice and at the same time shall prejudice the trial and/or appeals.
10. It is settled law that the Court is empowered, at all stages of the proceedings, to add any party or parties whose presence before the Court is necessary to adjudicate upon the real matter in dispute or when presence of the parties is necessary to enable the Court to effectually and completely adjudicate upon the matter. The person, who is claiming to own share in the suit for administration or inheritance, certainly falls in the category of persons, who are likely to be adversely affected by the adjudication.
11. It will be beneficial to reproduce the relevant part of the judgment of the Honourable Supreme Court in case titled "Syed Mehdi Hussain Shah v. Mst. Shadoo Bibi and others" (PLD 1962 Supreme Court 291):
".... According to Order I, rule 10, of the Civil Procedure Code any persons whose presence is "necessary in order to enable the Court effectively and completely to adjudicate upon and settle all questions involved in the suit" may be added as a party to the suit. There should be no objection to a plaintiff joining in an administration suit all those who claim to be entitled to a share in the property of the deceased and whose claim he wants to be adjudicated upon. To refuse the plaintiff to implead such persons will lead to an almost intolerable situation. Suppose there are ten claimants to an estate of the deceased and the plaintiff who sues for administration admits the claim of only one of them. If he is allowed to implead only the one whose claim he admits the decree passed in the administration suit distributing the estate may be nullified by one of the remaining claimants filing a suit and serving a declaration that he is entitled to a share in the estate of the deceased. The heir who has already got a decree in the administration suit will, if he still desires distribution of the estate, have to file a second suit for administration impleading also the heir who has secured a declaration, but the decree in this second suit too may be nullified by another claimant filing a suit and getting a declaration that he is entitled to a share in the estate of the deceased. It seems clear therefore that an acceptance of the contention of learned counsel for the appellant may lead to a hopeless multiplicity of suits. Great stress is laid by learned counsel on the fact that the plaintiff will by an administration suit be getting possession from persons who are in fact only trespassers and this is outside the scope of an administration suit. But the plaintiff will be getting possession only from persons who claim to be entitled to a share in the property of the deceased and who claim no independent right in themselves. While an administration suit is not a remedy for getting possession from those who claim the property in their possession in their own right and adversely to the deceased there does not appear to be any valid objection to their dispossession if they claim only as heirs or under a will from the deceased and their claim is
negatived. The question as to whether a person is entitled to a share in the property of the deceased is a fit subject of decision in an administration suit and in fact learned counsel for the appellant does not contended to the contrary his plea being that a defendant in an administration suit can raise a question as to whether the plaintiff or another defendant is entitled to a share but that the plaintiff cannot raise such a plea as to a defendant. We see no good reason for this distinction. "
(Emphasis supplied)
12. Furthermore, order of remand by the learned Appellate Court is simply a matter sent to the learned trial Court for re-examination and this order is not final determination of rights of the parties. I am of the considered view that discretion exercise by the learned Appellate Court is neither unwarranted nor unjust in the circumstances. It cannot be said that while passing order of remand to re-examine the matter in the light of fresh facts, documents and parties, learned appellate Court has acted arbitrarily or without jurisdiction.
13. Learned Counsel of the petitioner has failed to make out any case of material irregularity or illegality, requiring interference in the revisional jurisdiction. The instant revision petition is, therefore, dismissed, with no order as to costs.
14. For reasons recorded above, the Revision Petition No. 1674 of 2017 having no substance is also dismissed.
15. C.M. No. 2970-C of 2018 in Civil Revision No. 1674 of 2017 for impleading Applicants as necessary party is disposed of, as the same can be filed before the learned Court, where the trial is pending, if permissible by law.
(Y.A.) Petition dismissed
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