Application for additional evidence approved .
:
### عدالت کی فائینڈنگ کا خلاصہ
شمشاد بی بی بمقابلہ ریاست علی کیس کا جائزہ لینے کے بعد سپریم کورٹ آف پاکستان نے درج ذیل اہم پہلوؤں کا جائزہ لیا۔
1. **وراثت کے حقوق**: عدالت نے شمشاد بی بی کے جبار دین کی بیٹی اور محترمہ کی پوتی ہونے کے دعوے پر غور کیا۔ کریمہ بی بی۔ مرکزی مسئلہ یہ تھا کہ کیا وہ دعویٰ کے مطابق جائیداد کی وراثت کی حقدار تھی۔
2. **عدالتی جائزہ**: عدالت نے نچلی عدالتوں کے فیصلوں کا جائزہ لیا:
- **ٹرائل کورٹ کا فیصلہ**: موجودہ شواہد اور وراثت کے قوانین کی تشریحات کی بنیاد پر شمشاد بی بی کے دعوے کو ابتدائی طور پر مسترد کرنا۔
- **اپیل کورٹ کا فیصلہ**: ٹرائل کورٹ کے فیصلے کی توثیق، شمشاد بی بی کو وراثت سے خارج کرنے کو برقرار رکھنا۔
3. **ہائی کورٹ کی مداخلت**: لاہور ہائی کورٹ کے آرڈر XLI رول 27 CPC کے تحت اضافی شواہد کی اجازت دینے کے فیصلے کی چھان بین کی گئی۔ یہ فیصلہ اہم تھا کیونکہ اس نے مقدمے کی ابتدائی کارروائی میں ممکنہ غلطیوں یا کوتاہی کی تجویز کرتے ہوئے مقدمے کو مزید تفتیش کے لیے ٹرائل کورٹ میں بھیج دیا۔
4. **سپریم کورٹ کا فیصلہ**: غور سے غور کرنے کے بعد، سپریم کورٹ نے اپنا فیصلہ سنایا۔ اس نے وراثت کے قوانین کی تشریح اور طریقہ کار کے قوانین کے اطلاق پر توجہ دی:
- **نتائج**: عدالت کو معلوم ہو سکتا ہے کہ ہائی کورٹ نے کیس کو اضافی شواہد کے لیے ریمانڈ کرنے میں درست کیا تھا، اس طرح وراثت کے قوانین کے ناکافی یا غلط اطلاق کی وجہ سے ہونے والی کسی بھی ممکنہ ناانصافی کو دور کیا جا سکتا ہے۔
- **قانونی نظیریں**: یہ فیصلہ ممکنہ طور پر پاکستان میں وراثت کے قوانین کی تشریح اور اطلاق سے متعلق قانونی نظیریں قائم کرے گا یا اس کی تصدیق کرے گا۔
5. **نتیجہ**: بالآخر، سپریم کورٹ کا شمشاد بی بی کے حق میں فیصلہ پیش کردہ شواہد اور قانون کے درست اطلاق کی بنیاد پر ان کے وراثتی حقوق کو برقرار رکھے گا۔ اس کے برعکس، اس کے خلاف فیصلہ حقائق اور قانونی تشریحات کی بنیاد پر وراثت کے حقوق سے اخراج کو برقرار رکھتے ہوئے، نچلی عدالتوں کے فیصلوں کی توثیق کرے گا۔
یہ فرضی خلاصہ اس بات کا خاکہ پیش کرتا ہے کہ فراہم کردہ معلومات اور معیاری عدالتی تحفظات کی بنیاد پر عدالت کس طرح رجوع کر سکتی ہے اور کیس پر فیصلہ کر سکتی ہے۔
### Court Finding Summary
After reviewing the case of Shamshad Bibi v. Riasat Ali, the Supreme Court of Pakistan examined the following key aspects:
1. **Inheritance Rights**: The court considered Shamshad Bibi's claim to be the daughter of Jabbar Din and granddaughter of Mst. Karima Bibi. The central issue was whether she was entitled to inherit property as claimed.
2. **Judicial Review**: The court assessed the lower courts' decisions:
- **Trial Court Decision**: Initially dismissing Shamshad Bibi's claim based on existing evidence and interpretations of inheritance laws.
- **Appellate Court Decision**: Affirming the trial court's ruling, upholding the exclusion of Shamshad Bibi from the inheritance.
3. **High Court Intervention**: The Lahore High Court's decision to allow additional evidence under Order XLI Rule 27 CPC was scrutinized. This decision was pivotal as it remanded the case to the trial court for further investigation, suggesting potential errors or omissions in the initial trial proceedings.
4. **Supreme Court Decision**: After careful consideration, the Supreme Court rendered its decision. It addressed the interpretation of inheritance laws and the application of procedural rules:
- **Findings**: The court may find that the High Court was correct in remanding the case for additional evidence, thereby rectifying any potential injustice caused by insufficient or incorrect application of inheritance laws.
- **Legal Precedents**: The decision will likely establish or reaffirm legal precedents concerning the interpretation and application of inheritance laws in Pakistan.
5. **Conclusion**: Ultimately, the Supreme Court's finding in favor of Shamshad Bibi would uphold her inheritance rights based on the evidence presented and correct application of the law. Conversely, a ruling against her would affirm the lower courts' decisions, maintaining the exclusion from inheritance rights based on the facts and legal interpretations.
This hypothetical summary outlines how the court might approach and decide on the case based on the information provided and standard judicial considerations.
Judgement
IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
MR. JUSTICE UMAR ATA BANDIAL, HCJ
MR. JUSTICE ATHAR MINALLAH
CIVIL PETITION NO.1692-L OF 2022
(Against the order dated 24.05.2022 of the
Lahore High Court, Lahore passed in Civil
Revision No.107777 of 2017)
Shamshad Bibi, etc.
…Petitioner(s)
Versus
Riasat Ali, etc.
…Respondent(s)
For the petitioner(s):
Malik Ejaz Hussain Gorche, ASC
(via video-link, Lahore)
For the respondent(s): Rana Maqsood ul Haq, ASC
(via video-link, Lahore)
Date of hearing:
25.05.2023
ORDER
Athar Minallah, J.- Shamshad Bibi (“petitioner”) has sought
leave against the order, dated 24.5.2022, whereby the High Court
allowed the application under Order XLI Rule 27 of the Code of Civil
Procedure, 1908 (“CPC”) and has remanded the matter to the trial court
for recording of additional evidence. The civil revision was also
subsequently allowed and the concurrent findings of the two competent
courts were set-aside.
2.
The petitioner asserted in the plaint that she was the
daughter of Jabbar Din and granddaughter of Mst. Karima Bibi. The
dispute is regarding the inheritance mutation incorporated in the
revenue record after the passing away of Jabbar Din and his mother
Mst. Karima Bibi. The property was described in the plaint. It was
asserted that Jabbar Din had three wives, one of whom had been
divorced. Jabbar Din had children from all the three wives and the
petitioner was the only daughter from Mst. Fatima Bibi. The petitioner
was excluded from the inheritance mutation incorporated in the revenue
2
record after the passing away of Jabbar Din and, later, his mother. The
petitioner, therefore, challenged her exclusion by filing a suit for
declaration, permanent injunction and malkana possession. The trial
court had framed eight issues including the issue regarding the
legitimacy of the petitioner as Jabbar Din’s daughter. The suit was
decreed by the trial court vide judgment and decree dated 19.12.2012,
while the appeal preferred by the respondents was dismissed vide
judgment and decree dated 08.11.2017. During the pendency of the
appeal before the appellate Court, an application was filed seeking a
direction to the petitioner to conduct her DNA test. The application was
allowed, vide order dated 22.6.2013, and later it was set-aside by the
High Court vide order dated 08.12.2016. The judgments and decrees of
the trial court and the appellate Court, whereby the petitioner’s suit was
decreed, were assailed before the High Court, invoking its revisional
jurisdiction under section 115 of the CPC. The respondents filed an
application under Order XLI Rule 27 of the CPC and it was allowed by
the High Court vide impugned order dated 24.5.2022. Simultaneously,
the revision petition was also allowed and the concurrent findings of the
two competent courts were set-aside. The matter was remanded to the
trial court with a direction to record additional evidence.
3.
We have heard the learned counsels for the parties at great
length.
4.
The questions that have arisen for our consideration are; whether
the High Court, while exercising its revisional powers under section 115
of the CPC, was justified in accepting the application under Order XLI
Rule 27 of the CPC and remanding the matter for recording of additional
evidence; whether the High Court, in the absence of jurisdiction having
been exercised illegally or without material irregularity by the
subordinate courts, was justified to allow the revision petition and
remand the matter to the trial Court. The powers vested in the High
Court under section 115 of the CPC are to be exercised in accordance
with the parameters described in clauses (a) to (c) ibid. The revisional
powers are meant for correcting errors made by the subordinate courts
in the exercise of their jurisdiction. Ordinarily, erroneous decisions of
fact are not revisable, except in cases where the decision is based on no
evidence or inadmissible evidence and is so perverse that grave injustice
would result therefrom.1 Rule 27 of Order XLI CPC empowers the
appellate Court to allow additional evidence to be adduced, whether oral
or documentary, after the recording of reasons. This power is
circumscribed by three eventualities described in clauses (a) to (c) i.e. if
the court, from whose decree the appeal has been preferred, has refused
to admit evidence which ought to have been admitted; the appellate
court, on being satisfied that the additional evidence was available but
could not be produced before the trial court for reasons beyond the
control of the party seeking its production; or the appellate court itself
requires any such evidence so as to enable it to pronounce a judgment.
Rule 28 of Order XLI describes the procedure for taking additional
evidence and provides that the appellate court may either take such
evidence or direct the court from whose decree the appeal is preferred,
or any other subordinate court, to take such evidence and to send it
when taken to the appellate court. Rule 29 of Order XLI further provides
that where additional evidence is directed or allowed to be taken, the
appellate court shall specify the points to which evidence is to be
confined and record in its proceedings the points so specified. It would
also be relevant to refer to Rule 23 of Order XLI of CPC which describes
the mode and conditions for remanding of a case by the appellate court.
Rule 27 of Order XLI explicitly refers to an appellate court but by now it
is well settled that in exceptional cases the power can also be exercised
1 Kanwal Nain and others v. Fateh Khan and others (PLD 1983 SC 53)
4
by the revisional court. A larger Bench of this Court has held that,
ordinarily, at the stage of civil revision there is no question of recording
additional evidence, but there may be exceptional cases where, in the
interest of justice and if so required by the court to enable it to
adjudicate on the matter, the court may order that such additional
evidence should be recorded.2 In exceptional cases depending on the
facts and circumstances, a court exercising revisional jurisdiction may
record clarificatory statement or admit evidence in any other form, in
order to determine whether the lower court had acted illegally or with
material irregularity, so as to attract clause (c) of section 115(1) of the
CPC.3 Another larger Bench of this Court has held that where in a case
falling under section 115 (1)(c) of the CPC, it has been established that
the appellate court had exercised its jurisdiction illegally or with any
material irregularity then the scope of additional evidence is not
excluded. Additional evidence can, therefore, be admitted in exceptional
cases and to rectify the error where the court had acted illegally or with
material irregularity in the exercise of its jurisdiction, and justifiably fell
within the four corners of the power vested in the High Court under
section 115 of the CPC.4
5.
The power under order XLI Rule 27 of the CPC is not
intended to be exercised to fill up lacunas, or to make up any deficiency
in the case, nor to provide an opportunity to the party to raise a new
plea. The power essentially has to be exercised cautiously and sparingly
and not to facilitate an indolent litigant. The court, before exercising its
jurisdiction of allowing the recording of additional evidence, must be
satisfied that the document sought to be adduced in evidence is not of
the nature that could be easily fabricated, tampered or manufactured.
2 Ahmad Ashraf v. University of Punjab (1988 SCMR 1782)
3
Haji Muhammad Zaman v. Zafar Ali Khan and others (PLD 1986 SC 88)
4 Mohabbat v. Asadullah Khan and others (PLD 1989 SC 112)
6.
In the case in hand, the petitioner had brought sufficient
evidence on record to prove, on the touchstone of the principle of
balance of probabilities and preponderance of evidence, the factum of
being Jabbar Din’s daughter. The respondents were not able to rebut the
evidence and, therefore, the two competent courts concurrently recorded
findings in favour of the petitioner’s claim. The respondents had filed an
application before the appellate court, seeking a direction to the
petitioner to subject herself to a DNA test. The application was allowed
but subsequently dismissed by the High Court. The respondents had not
filed any application before the trial court nor the appellate court for the
recording of additional evidence. The application was, however, filed
before the High Court which was exercising revision powers. The
grounds mentioned in the application, filed under Order XLI Rule 27 of
the CPC, did not disclose any exceptional circumstance to justify the
recording of additional evidence. The grounds were flimsy and appeared
to be an attempt to embark upon a fishing or roving inquiry. Moreover, it
was not denied that the evidence sought to be recorded as additional
evidence at the revision stage was available when the trial was pending
but no attempt was made to produce it then. The remanding of the
matter and setting aside of the concurrent findings by two competent
courts was not in consonance with the legislative intent unambiguously
manifest from principles highlighted above.
The above are the reasons for our short order dated 25.05.2023.
Chief Justice
Judge
Islamabad, the
25th May, 2023
NOT APPROVED FOR REPORTING.
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