2016 SCMR 834

IN THE HIGH COURT OF SINDH, CIRCUIT COURT,

HYDERABAD

Civil Revision Application No. 13 of 2020

[Sohail Ahmed Ansari v. Irfan Ahmed Ansari and 4 others]

Dates of hearing : 06.03.2020 and 13.03.2020.

Applicant : Sohail ahmed Ansari, through

Mr. Sartar Iqbal Panhwar, Advocate.

Respondent No. 1 : Irfan Ahmed Ansari, through Mian Taj

Muhammad Keerio, Advocate.

Respondents No.2 to 5 : The Province of Sindh and 3 others,

through Mr. Ghulam Shabbir Zardari,
Assistant Advocate General Sindh.

JUDGMENT

Muhammad Faisal Kamal Alam, J: - The Applicant has challenged

judgment dated 19.12.2019 passed by the Appellate Court in Civil Appeal

No.239 of 2019 preferred by the same Applicant and the judgment of

11.03.2017 passed in First Class Suit (“F.C. Suit”) No.668 of 2013,

instituted by present Respondent No.1 and final decree of 18.09.2017.

2. The above suit was filed in respect of house property built at plot

No.180, Block – D, situated in Unit No.7, Latifabad Hyderabad, measuring

267 Square Yards, consisting of three shops on ground floor, one big hall

and a residential house, which for reference is referred to as “Suit Property”

in which present Respondent No.1 (Irfan Ahmed Ansari), who is real

brother of present Applicant, has claimed his equal share in the inheritance,

because the Suit Property was owned by mother of present Applicant and

Respondent No.1, namely, Mst. Farhat Begum, widow of Muhammad

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Ahmed, and after her death, the same is to be inherited by both Appellant

and Respondent No.1.

3. The above Suit was contested by Applicant, who filed his Written

Statement.

4. Mr. Sartar Iqbal Panhwar, Advocate, appearing for the Applicant,

has argued that the entire suit proceeding is mala fide and the plaint should

have been rejected because the present Applicant and Respondent No.1

already agreed that the Suit Property exclusively belongs to present

Applicant by virtue of „Declaration of Surrender‟ dated 08.01.2011. He has

referred to this document, which is one of the annexures with the Written

Statement of Applicant and is available at page-205 of the Court‟s file, that

present Respondent No.1 has clearly agreed to surrender his share in the

Suit Property in favour of Applicant. Further contended that Respondent

No.1 through deceptive tactics has disposed of other properties / estate of

deceased father of Applicant and Respondent No.1 and usurped the entire

sale proceeds to the exclusion of the Applicant, regarding which present

Applicant preferred a subsequent F.C. Suit No.335 of 2017, which is still

sub judice. Contended that both suits should have been consolidated and

common evidence ought to have been led, in order to avoid conflicting

decisions, but the above F.C. Suit No.668 of 2013 was decided without

giving proper opportunity to Applicant to lead the evidence. Learned

counsel argued that earlier against the preliminary decree, Applicant

preferred Civil Appeal No.101 of 2017, but when the afore-referred Civil

Appeal No.239 of 2019 was filed against the Final Decree (of 18.09.2017),

earlier Civil Appeal No.101 of 2017 was withdrawn. The learned Appellate

Court was required to consider this aspect of the case while dismissing the

above Civil Appeal No.239 of 2019 only on the ground of limitation. He

further argued that even the learned Trial Court has not appreciated the fact

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that in such type of proceeding relating to inheritance, presence of other

legal heirs is necessary. Learned Advocate for the Applicant to augment his

arguments has relied upon the following case law_

1. 2020 S C M R page-352
[Shabla and others v. Ms. Jahan Afroz Khilat and others] – Shabla Case;

2. 2020 C L C Note page-1

[Mst. Zenab Bibi v. Ahmad Yar];

3. 2018 Y L R page-1813
[Muhammad Ahsan Mushtaq Paracha v. Sheikh Arif-ur-Rehman];

4. 2016 Y L R page-1667
[Aqleem Khan and others v. Government of Khyber Pakhtunkhwa and
others];

5. 2014 Y L R page-1193
[Mst. Shah Room and 5 others v. Mst. Khaista Bibi and 5 others];

6. 2005 S C M R page-1217
[Muhammad Zubair and others v. Muhammad Sharif] – Zubair Case;

7. 2014 C L C page-254
[Nisar Akbar Khan and 15 others v. Jamal Nasir Khan and 4 others];

8. 2014 C L C page-134
[Siddik through Legal Heirs v. Mst. Fatima Bai through Legal Heirs];

9. 2016 S C M R page-834
[Muhammad Ijaz and another v. Muhammad Shafi through L.Rs.]; and

10. P L D 2016 Supreme Court page-872

[Khush Muhammad through L.Rs. and others v. Mst. Fazal Bibi and others].

5. Mian Taj Muhammad Keerio, learned Advocate for Respondent

No.1 has opposed this Revision Application and argued that the Applicant

has not pleaded any plausible ground, to show that both impugned

decisions of learned Trial Court and Appellate Court suffer from any

material irregularity or illegality. It is stated that learned Trial Court has

given the judgment after providing ample opportunity to present Applicant

to lead the evidence, but he remained absent. He has read the relevant

portion of the judgment of 11.03.2017 (of Trial Court) to fortify his

arguments that Court considered the pleadings and evidence of the parties

and gave its finding in accordance with the issues framed and thus

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judgment is within the requirement of Rule 5 of Order XX of Civil

Procedure Code, 1908 (“CPC”). Learned counsel for Respondent No.1

stated that against final decree of 18.09.2017, above Civil Appeal

No.239 of 2019 was filed on 10.10.2019 and thus is hopelessly time

barred and the learned Appellate Court has correctly dismissed the

application of Applicant under Section 5 of the Limitation Act, 1908,

by the impugned judgment. It is further contended that it is not the

case of Applicant that he was never served, because once a party

has filed Written Statement and contested the suit, then his / her

absence from the evidence proceeding cannot be condoned. He has

referred to the Affidavit of present Applicant filed in support of

his application under Section 5 (ibid) to show that present Applicant

himself has stated that earlier he has filed afore-referred Appeal No.101

of 2017 against the judgment and decree of 11.03.2017, but the

Applicant was not in knowledge of final decree dated 18.09.2017, and he

acquired knowledge when he received the notice of Execution Application

No.75 of 2019 and then rushed to the Court to file above Appeal in which

the impugned judgment was passed. Contended that above is a baseless

ground for condonation of delay. Further stated that it is a matter of record

that the earlier Civil Appeal No.101 of 2017 was withdrawn by the

Applicant himself vide order dated 22.11.2019, available at page-145

of the Court‟s file.

6. Arguments heard and record perused.

7. Crux of the case law relied upon by the Applicant‟s Advocate is that

no limitation runs against fraud, particularly involving inheritance rights of

a female; revisional jurisdiction although has limited scope, but even

concurrent findings can be interfered with by High Court under Section 115

of the Civil Procedure Code, if material irregularity in the impugned

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decisions is obvious; no limitation runs against a void order; the term

„sufficient cause‟ used in Section 5 of the Limitation Act (1908) is not

susceptible of any exact hard and fast rule and a party should not be

deprived of from a fair trial on merit, except when there is positive

evidence of negligence beyond explanation; right of succession would not

be defeated by the law of limitation or the principle of rest judicata as no

law or judgment can override the law of „Sharia‟ which is superior law. An

act of Court shall prejudice no man.

8. During course of arguments, it transpired that deceased father of

Applicant and Respondent No.1 (Muhammad Ahmed Ansari) had

contracted second marriage and his second wife resides in Karachi.

Subsequently, learned counsel has filed a Statement through which he has

brought on record suit filed by him, viz. F.C. Suit No.335 of 2017 (as

referred above). Plaint of this F.C. Suit No.335 of 2017 is perused, which is

in respect of another property, said to have been usurped by Respondent

No.1. In paragraph-2 of the plaint, it is stated that above named deceased

father of parties hereto (Applicant and Respondent No.1) when passed

away on 23.01.1982, had left the following legal heirs_

“1. Mst. Farhat Begum Widow

2. Mst. Husna Begum Widow
3. Irfan Ahmed Son
4. Suhail Ahmed Son
5. Nabib-ul-Hassan Father”

9. Therefore, Mst. Husna Begum, step mother of Applicant and

Respondent No.1, should have been made / impleaded as one of the parties

in the F.C. Suit No.668 of 2013 filed by present Respondent No.1 as well as

subsequent F. C. Suit No. 335 of 2017. Both learned Advocates did not

dispute that the said Mst. Husna Begum is still alive, however, grandfather

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of the Parties (Nabib-ul-Hassan) has died in the intervening period. In order

to ascertain the factual position about all the legal heirs, who may become

entitled to their respective shares in the inheritance, a Report was called

from the National Database and Registration Authority (“NADRA”)

through learned Deputy Attorney General on 28.02.2020, which was filed

under the Statement dated 28.02.2020 by Mr. Humayoon Khan (learned

Deputy Attorney General). To comply with the directions of this Court,

both Applicant and Respondent No.1 have filed their separate Affidavits

and have confirmed that afore mentioned persons were the legal heirs of

their deceased father. Affidavit of Applicant further disclosed that

grandfather, Nabib-ul-Hassan, has passed away, whereas, above mentioned

lady Mst. Husna Begum was wife of their another uncle, who died before

the death of the father of the parties hereto (late Muhammad Ahmed

Ansari) and the said Mst. Husna Begum has four children, namely, Shakeel,

Saleem, Saeed and Shaista. However, Respondent No.1 although has

acknowledged that Mst. Husna Begum has been shifted to Karachi, but

averred that since she has contracted second marriage, therefore, she is not

the surviving legal heir of his father.

10. This important aspect is yet to be determined that whether above

named Mst. Husna Begum will inherit something from the estate of

deceased father of Applicant and Respondent No.1 or not. Although in the

subsequent F.C. Suit No.335 of 2017 filed by present Applicant, names of

legal heirs are mentioned, but the present Respondent No.1 did not even

bother to mention the names of legal heirs of his deceased father in his F.C.

Suit No.668 of 2013.

11. The documents including the allotment of another property – B/11,

Block – E, which is the subject dispute of the above Suit filed by present

Applicant, appended with the Statement of learned counsel for the

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Applicant, are available in the record and a careful examination of the same

shows that it is mentioned by the concerned officials that the above

property was gifted to present Respondent No.1, while mentioning the

names of other legal heirs, who are same persons as mentioned in the

foregoing paragraphs and in the plaint of subsequent Suit No.335 of 2017.

Such deceptive tactics adopted by Respondent No.1 cannot be ignored

when it directly affects the distribution of the inheritance.

12. The reported judgments of Honourable Supreme Court handed down

in Shabla and Zubair Cases (supra) are relevant to the facts of present

case. In the Shabla Case, Apex Court has even observed that depriving a

female from her inheritable right falls within the purview of Section 490-A

of the Pakistan Penal Code; whereas, in Zubair Case, it was held that right

of inheritance would not be defeated by the law of limitation. Entitlement

of above named Mst. Husna Begum, step mother of both Applicant and

Respondent No.1 has to be determined on merits, rather on oral assertion of

Respondent No.1 as mentioned in his above affidavit, which was filed in

compliance of the order dated 28.02.2020, because the right of inheritance

in the estate of a deceased is protected by the Islamic Law of Inheritance,

which is on a higher pedestal, inter alia, in view of the Enforcement of

Sharia Act of 1991, which has declared that Injunctions of Islam as laid

down in the Holy Quran and Sunnah as the Supreme Law of Islamic

Republic of Pakistan.

13. Although to some extent, the arguments of learned Advocate for

Respondent No.1, has merits, especially with regard to delay in filing Civil

Appeal No.239 of 2019, but at the same time in view of peculiar facts

involved in this proceeding, which directly relate to the distribution of

inheritance and the above discussion, both impugned decisions cannot be

sustained, as it would directly result in depriving a shareholder from the

inheritance.

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14. Consequently, both judgments are set-aside and case is remanded.

Learned Trial Court will proceed with F.C. Suit No.668 of 2013 in

accordance with law and after considering the following_

i) F.C. Suit No.668 of 2013 (filed by present Respondent No.1 –

Irfan Ahmed Ansari) and subsequent F.C. Suit No.338 of
2017 (instituted by present Applicant – Sohail Ahmed Ansari)
will be consolidated.

ii) Above named Mst. Husna Begum, step mother of Applicant

and Respondent No.1, will be impleaded as one of the
Defendants in both suits and should be duly served by
effecting service through all the modes including publication.

iii) Issues will be framed / re-framed accordingly.

iv) Opportunity to lead evidence will be given to all the parties,

but no unnecessary adjournment will be allowed and in case
if it appears that any party is trying to delay the matter, then
learned Trial Court can pass any appropriate order.

v) Evidence already recorded in both suits will remain intact but

such testimony of Applicant and Respondent No.1 will be
subject to cross-examination. However, if Applicant and
Respondent No.1 request, then they may be allowed to lead
evidence afresh.

vi) It is expected that learned Trial Court will pass the judgment
in both the Suits within two months from the date of receipt
of copy of this Decision.

15. It is clarified that any observation in this judgment is of tentative

nature and will not influence the above Suits proceedings. In the above

terms this Civil Revision Application is allowed. Parties to bear their

respective costs.

JUDGE

Hyderabad
Dated: ________________.

Civil Revision Application No. 13 of 2020