Stereo H.C.J.D.

A 38

Judgment Sheet
IN THE LAHORE HIGH COURT LAHORE,
MULTAN BENCH, MULTAN
JUDICIAL DEPARTMENT
Civil Revision No.955 of 2019 converted into Writ Petition No. 2570 of 2022

Abdul Rauf etc. Versus Muhammad Mushtaq etc.

JUDGMENT

Petitioners by: Mr. Hamid Aziz, Advocate.

Respondents by: Ex-parte.

Date of hearing: 21.02.2022.

MUHAMMAD SHAN GUL,J.- This Civil Revision is

not maintainable after the amendment made in Section 115

CPC by the Province of Punjab by means of adding sub clause

5 to the section. The newly inserted sub clause 5 reads as

follows:-

“(5) No proceedings in revision shall be

entertained by the High Court against an
order passed by the District Court under
Section 104,”

This amendment was inserted in the Code of Civil

Procedure through the Punjab Amendment Act XIV of 2018

dated 20.03.2018, therefore, a constitutional petition, if at all,

should have been filed in the matter and not a Civil Revision.
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The office of this Court realizes its mistake and begs pardon.

Learned counsel for the petitioners insists that this Court has

the jurisdiction to convert one type of proceedings into another

and provided the petitioners’ approach is not barred by the law

of limitation, a civil revision can be ordered to be converted

into a constitutional petition.

2. It has been noted that the Civil Revision was filed within

thirty four days of the impugned judgment passed by the

appellate court and therefore, is not hit by limitation or for that

matter by the doctrine of laches. In view of the law laid down

by the Hon’ble Supreme Court of Pakistan in the case of

Muhammad Akram vs. DCO, Rahim yar khan and others

(2017 SCMR 56) at paragraph 7 as also in view of Capital

Development Authority, Islamabad through its Chairman

vs. Khuda Bakhsh and 5 others (1994 SCMR 771) in the last

paragraph and the case of Shamsul Haq and others vs. Mst.

Ghoti and 8 others (1991 SCMR 1135) at paragraph 10 this

Court has the power to convert one type of proceedings into

another kind and therefore, subject to the petitioners depositing

requisite court fee (Rs. 1500/- since there are three petitioners),

the present Civil Revision is converted into a constitutional

petition and office is directed to allot a number to this writ

petition today.
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3. Through this judgment the titled Writ Petition is sought to

be decided.

4. This case before this court is a classic case calling out

for interference in revisional jurisdiction on account of the

conspicuous and manifest illegality and misdirection in law

exhibited by both Courts below i.e. the trial Court as also

the appellate Court.

5. Brief facts of the case are that the petitioners before this

Court are the children of one Mst. Ruqayya Bibi daughter of

Muhammad Ibrahim. According to the petitioners their

maternal grandfather Muhammad Ibrahim son of Qasim was

owner of Khata No.40/40, Khatooni No.121 to 140, Square

No.50 in respect of land measuring 200K-2M according to the

register Haqdaraan-e-Zameen for the year 2011-2012 situated at

Chak No.85/6-R. That at the time of the death of Muhammad

Ibrahim, inheritance mutation bearing No.1244 dated

15.07.1970 was sanctioned in favour of legal heirs of

Muhammad Ibrahim but cunningly yet mischievously and

purposively, their mother Mst. Ruqayya Bibi was kept out of

inheritance and was deprived of her legal share. That their

mother died on 21.12.1983 and upon learning that their mother

had been denied her share in the matter of inheritance they

approached their maternal uncles who refused pointblank in

either exceeding to their request of being given their due

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inheritable share or for that matter in sharing the proceeds of

the crops with them and since the respondents wanted to

alienate portions of the said inherited property, the petitioners

approached the Court by means of a suit for declaration and

permanent injunction.

6. Alongwith such suit the petitioners also filed an application

for temporary injunction which was refused by the trial Court.

7. Paragraph No.4 of the order passed the trial Court dated

20.04.2019 has been perused and it can straightaway be

observed that there is misdirection in law on the part of the trial

Court in getting massively swayed by the suggestion of the

respondents that Mst. Ruqayya Bibi had died before her father

died and, therefore, was not entitled to any inheritable share.

The observation of the trial Court ‘the entitlement of the

predecessor of plaintiff is yet to be established’ is entirely

gratuitous and unwarranted, according to the counsel for the

petitioners.

8. Upon being refused interim relief by means of denial of the

request for grant of temporary injunction, the petitioners before

this Court, approached the District Court Sahiwal by filing a

civil appeal seeking the grant of temporary injunction. This

appeal has also been dismissed vide order dated 07.08.2019 and

which is the reason why the petitioners have approached this

Court.
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9. The order passed by the Appellate Court has also been

perused and this order, too, is equally misdirected and based on

an erroneous application of law and can therefore, not be

supported. Even the Appellate Court has been impressed, albeit

wrongly, by the assertion that Mst. Ruqayya Bibi, the

predecessor of petitioners had passed away prior to the death of

her father Muhammad Ibrahim and, therefore, the Appellate

Court has also misdirected itself in law in not appreciating the

presence of Section 4 of The Muslim Family Laws Ordinance,

1961. The question about the date of death of Mst. Ruqayya

Bibi was therefore absolutely irrelevant in view of section 4.

10. The respondents have been served according to the report

submitted by the office but no one is present on their behalf

and, therefore, they are being proceeded against ex parte.

11. I have heard the counsel for the petitioners and have

perused the record.

12. The written statement submitted by the respondents in the

suit clearly acknowledges the relationship between the parties

(maternal uncles and nephews) and which on the face of it is

enough to establish the entitlement of the petitioners to the

extent of their inheritable share in the property in question and,

therefore, the observations of the trial Court as also of the

appellate Court come across as questionable. The reason

disclosed in the written statement filed by the respondents about

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not including the name of Mst. Ruqaya Bibi in the inheritance

mutation is itself adequate to establish entitlement of Mst.

Ruqayya Bibi i.e. predecessor-in-interest of the petitioners. The

respondents have wrongly and erroneously relied on the alleged

fact that Mst. Ruqayya Bibi died prior to her father’s death and

was therefore rightly not included in the inheritance mutation.

This aspect of the written statement only accentuates and

heightens the entitlement of the petitioners and reinforces

their case.

13. Both Courts have failed to note the presence of Section 4

of The Muslim Family Laws Ordinance, 1961 which is being

reproduced hereunder for facility of reference:

“4. Succession.– In the event of the death of any son

or daughter of the propositus before the opening of
succession, the children of such son or daughter, if
any, living at the time the succession opens,
shall per stirpes receive a share equivalent to the
share which such son or daughter, as the case may
be, would have received if alive.”

14. In the presence of Section 4 of The Muslim Family Laws

Ordinance, 1961 the entitlement of the petitioners was

established by law and there was no need for establishing it any

further. Both Courts below have failed to take into

consideration the presence of Section 4 of The Muslim Family

Laws Ordinance, 1961 and which is why this case comes across

as a classic case calling out for interference in revisional

jurisdiction of this Court on account of a conspicuous illegality.

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15. What is also true is that an absolutely irrelevant

consideration has prevailed with the Courts below in denying

the grant of temporary injunction to the petitioners. This, in

turn, clearly means that both Courts below have applied their

minds in an incorrect manner and in the words of (Lord

Greene in the case of Wednesbury Corporation 1948(1) KB

223), the decision maker has directed his attention to an

improper question and taken into account an irrelevant

consideration and, therefore, committed an illegality. In a

nutshell, the decision makers asked wrong questions and their

approach was thus improper. Both Courts below have failed to

take into account settled law on the subject and which is why

both orders need to be set aside.

16. In (PLD 2003 Supreme Court 475), Mst. Fazeelat Jan

and others v. Sikandar through his Legal Heirs and others, it

has been held as follows:

“the trial Court was wrong in holding that the

grandson, under the traditional Muslim Law of
Inheritance was excluded from the inheritance of
his grandfather due to the absence of his own
father. Section 4 of the Muslim Family Laws
Ordinance, 1961, clearly entitles the grandson for
receiving the share which his father would have
inherited, had he been alive. ……..… The grandson,
therefore can inherit the share of his predeceased
father from his grandfather.

The claim under section 4 of Muslim Family

Laws Ordinance, 1961, being besides the point for
the time being, the grandson Sikandar, in the
prevailing succession that existed at the time of
opening of succession, independent of his father,
was entitled to 18/48 share in the inheritance of his
grandfather in his capacity as residuary. The table
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of residuaries is indicative of the fact that the

grandson, as, such, is placed at a higher degree
than a brother's son. In the circumstances, Sikandar
is entitled to 18/48 or 9/24 or 3/8 share in the
inheritance of his grandfather being a residuary in
his own right and also under section 4 of the
Muslim Family Laws Ordinance, 1961……..”

In (2005 CLC 1160 (LHC), Mst. Saabran Bibi and 9 others v.

Muhammad Ibrahim and 12 others, it has been held as follows:

“the above stated position of the inter se

relationship of the parties is not in dispute. It is also
not in dispute that the petitioner was son of
Muhammad Shafi deceased and Mst. Hassan was
his widow, who had married later on with
Muhammad Ibrahim. Section 4 of the Muslim
Family Laws Ordinance, 1961, which deals with the
succession in suchlike matters reads as under:--

"4 Succession.--- in the event of the death of any son

or daughter of; the propositus before the opening of
succession, the children of such son or daughter, if
any, living at the time of succession opens, shall per
stripes receive a share equivalent to the share
which such son or daughter as the case may be,
would have received if alive. (underlined by me due
to its relevance)."

This section relates to and, deals with the right of

inheritance of the issues of the predeceased son and
daughter. It provides that if a person dies and
leaves behind issues of such of his sons or
daughters who were dead in his life time, the issues
of the deceased sons and daughters will be entitled
to inherit the shares that their father or the mother
would have inherited had, they been alive at the
time of death of that person. The object and
rationale behind this provision is to ameliorate the
distress of those unfortunate children whose father
and mother are snatched away by death in the life
of their grandfather. Such orphan grandchildren
are sought to be compensated in such a way by
giving the share in inheritance to which their father
or the mother would have been entitled. The express
and unambiguous phraseology and language of the
provisions of law leaves no obscurity or doubt that
the "children of such son" are only entitled to
inherit and receive share which expression does not
possibly within its ambit include the widow "of such
son". Thus, only the petitioner as son of Muhammad
Shafi was entitled to receive the share………Thus, it
is obvious that a Muslim's estates legally and
juridically vests immediately on his death in his or
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her heirs and their rights respectively come into

separate existence forthwith". It was not dependent
upon any entry in the mutation which was meant
only to incorporate a factum. ……”

In (2017 CLC 1331 (PHC), Abdul Haleem and others v.

Habibulaah Khan and others, it has been held as follows:

“the perusal of the record depicts that the

deceased Abdul Ghaffar had died in the year 1973
leaving behind four sons and two daughters. One of
his daughter Mst. Bibi Noora and his son
Muhammad Khan had already died in his life time.
They were survived by children when in 1973 Abdul
Ghaffar died and his inheritance mutation No.3504
was attested on 24.7.1973, wherein children of his
pre deceased son Muhammad Khan were given 2/9
shares in his inheritance. Besides one of his
daughter namely Bibi Hawa was given 2/9 share in
his legacy. The plaintiffs in their plaint had claimed
1/8 shares in the legacy of deceased Abdul Ghaffar
but it was not based on correct legal footings that
being the children of pre deceased daughter of
Abdul Ghaffar like Bibi Hawa, they were also
entitled to 7/9 shares in the inheritance mutation
No.3504 attested on 24.7.1973…………..”

17. It is clear from the above precedents that the petitioners

before this Court did indeed have a prima facie case entitling

them to seek a temporary injunction in the matter on the

strength of Section 4 of The Muslim Family Laws Ordinance,

1961. That, likewise, since the respondents through their

written statement reinforced their right to sell the property in

question to whomsoever they pleased and since the respondents

were on the brink of alienating such property, as admitted by

them in reply to paragraph No.6 in their written statement, even

the balance of inconvenience tilted towards the petitioners

despite the doctrine of lis pendens because if such property

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were to be alienated then the petitioners would be left entangled

in multiple litigation.

18. The fact of the death of the original owner of the property

i.e. predecessor-in-interest of the competing parties not being

disputed and in fact admitted by the respondents did not need to

be established by evidence in view of the admission. It may be

necessary to recapitulate here that grant of temporary injunction

is an equitable relief depending upon the circumstances of each

individual case. In order to ascertain existence of a prima facie

case all pleadings and materials before the court had to be

considered. A prima facie case only means an arguable case and

does not necessarily mean a prima facie title in the property

(even the entitlement in the present case is beyond question

and stands established by virtue of operation of law). It may

also be noted that the pleadings and materials on record

indicated a strong possibility of existence of a right in favour of

the party seeking injunction and breach of such right being

admitted by the opposing party, temporary injunction for the

preservation of the threatened right ought to have been granted.

19. It may be reiterated that the phrase ‘prima facie case’ in

its plain language signifies a triable case where some

substantial question is to be investigated and this phrase should

not be confused with ‘prima facie title’. Also in order to make

out a prima facie case the plaintiff need not establish its title. It
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is enough if the plaintiff can show that he has raised a fair

question as to the existence of right in the property in dispute

and which should be preserved until such question is

determined. Kindly see “Sinotec Co. Limited through

Authorized Person v. Province of Sindh through Secretary

Sindh and 5 others” (PLD 2018 Sindh 303), “Naseem ul Haq

through Attorney and another v. Raes Aftab Ali Lashari

through Guardian ad-litem and 5 others” (2015 YLR 550) and

“Farooq Hassan and another v. International Credit and

Investment Company and another” (1996 CLC 507).

Furthermore, in “Sayyid Yousaf Husain Shirazi v. Pakistan

Defence Officers’ Housing Authority and 2 others” (2010 MLD

1267), it has been held as follows:-

“Existence of prima facie case is to be judged or made out

on the basis of material/evidence on record at the time of
hearing of injunction application and such evidence or
material should be of the nature that by considering the
same, Court should or ought to be of the view that plaintiff
applying for injunction was in all probability likely to
succeed in the suit by having a decision in his favour. The
term "prima facie case" is not specifically defined in the
Code of Civil Procedure. The Judge- made-law or the
consensus is that in order to satisfy about the existence of
prima facie case, the pleadings must contain facts
constituting the existence of right of the plaintiff and its
infringement at the hands of the opposite party.”

20. In this view of the matter, the order and judgment passed

by both Courts below are erroneous in law and result out of

misdirection in law. Both decisions cannot be sustained and are

set aside and declared to be of no legal effect. The petitioners

application for grant of temporary injunction is accepted and it

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is ordered that during the pendency of the suit in question the

respondents shall maintain status quo with respect to, and shall

not alienate, the property in question only to the extent of the

inheritable share of the petitioners(to be worked out by the trial

Court in accordance with law) .

21. At this stage, learned counsel for the petitioners submits

that he may be allowed to implead revenue officials in the suit.

Let him make a formal application in this respect before the

trial Court seized of the matter and which Court shall decide the

said application in accordance with law.

22. Allowed in the above terms.

(MUHAMMAD SHAN GUL)

JUDGE

APPROVED FOR REPORTING.

JUDGE

“Gulraiz”