2020 C L C 1895
[Balochistan]
Before Nazeer Ahmed Langove, J
Mst. JAMILA KAKAR----Petitioner
versus
Mst. SURRIYA NASREEN and 4 others ----Respondents
Civil Revision No.19 of 2019, decided on 13th June, 2019.
(a) Succession Act (XXXIX of 1925) ---
----S. 372--- Civil Procedure Code (V of 1908), O. I, R. 10---Qanun -e-Shahadat (10 of 1984),
Arts. 85, 92 & 129 ---Succession certificate, issuance of ---Public document ---Presumption of
truth ---Scope ---Succession certificate was issued in favour of legal hei rs of deceased,
whereafter an application for impleadment of a party was moved with the contention that the
minor being an adopted son had no entitlement in the legacy of deceased---Trial Court recalled succession certificate issued in favour of petitioner s with the direction to the parties
to approach the civil Court for redressal of their grievance ---Validity ---Deceased had left
behind the widow and a minor son as legal heirs ---Parentage of minor son was supported by
the record of National Database and Registration Authority and passport issued by Ministry
of Interior Government ---Presumption of truth was attached to the official record unless
proved otherwise ---Presumption with regard to validity of public documents would carry
weight unless it had been r ebutted ---Courts below had failed to exercise jurisdiction properly
and appreciated the facts of the case in accordance with law ---Impugned orders passed by the
Courts below were set aside and succession certificate was restored ---Revision was allowed,
in circumstances.
(b) Limitation Act (IX of 1908)---
----Significance.
Muhammad Mahmood Sadiq Khokhar for Petitioner.
Syed Saleem Akhtar for Respondents Nos.1 to 4.
Date of hearing: 24th May, 2019.
JUDGMENT
NAZEER AHMED LANGOVE, J. ----This petition is d irected against the order
dated 17th March 2018, passed by learned Civil Judge -IV, Quetta (hereinafter the "trial
court"), whereby Succession Application No.82/2017, filed by respondents Nos.1 to 4 was
disposed of by recalling its order dated 26th May 2017, whereby, the Succession Application No.21/2017 filed by petitioner had been allowed. Assailed in Civil Appeal No.26/2018, vide order dated 12th November 2018, passed by learned Additional District Judge -III, Quetta
(hereinafter the "appellate court") whereby, the appeal has been dismissed on the point of
limitation. Hence, this petition with the following prayer:
"It is, therefore, respectfully prayed that the impugned orders dated 17.03.2018 and
12/11/2018 passed by Civil Judge -IV, Quetta and Additional District Judge -III,
Quetta respectively may kindly be set aside and the Succession Certificate having No.21/2017 dated 26.05.2017 in favour of the petitioner may very graciously be restored and application filed by the respondents Nos. 1 to 4 may also be rejected with cost. Any other relief deem fit and proper be awarded to the petitioner in the interest of justice."
2. Facts in brief are that husband of the petitioner, namely Sultan Mahmood had been
performing his duties as Police Officer in Balochistan Police Department Quetta, died a
natural death on 26th of February 2017, leaving the petitioner and a minor son behind as legal heirs. After his death, the petitioner applied for Succession Certificate which accordingly was allowed on 26th of M ay 2017.
The respondents being sister and close relatives of the deceased, filed an application
under Order -I, Rule 10, C.P.C.; besides having filed a separate application under section 372
of the Succession Act, 1925.
3. While disposing of the aforesaid applications. The learned trial court directed the
parties to approach the competent court of law, i.e. Civil Court for redressal of their grievance(s) mainly on the ground of factual controversy raised and agitated by the respondents in respect of minor s on of the petitioner being adopted, having no right or
entitlement over the legacy of deceased husband of the petitioner. Apart from this, the earlier order dated 26th of May 2017, whereby the Succession Certificate had been issued in favour of the petitio ner has also been recalled. Assailed in appeal, but dismissed, vide order dated
12th of November 2018 passed by the learned appellate Court. Feeling aggrieved and dissatisfied of the orders impugned the instant petition has been filed with the prayer menti oned hereinabove.
4. Heard the learned counsel for the parties and gone through the record.
Careful perusal of the record in the light of relevant provisions of the law reveals
clearly and quite clearly that the orders impugned passed by the learned trial , as well as,
appellate Court are contrary to the facts, relevant provisions of the law and basic norms of justice, as such, the same are not sustainable under the law and liable to be reversed for the simple reason that the application filed by the respon dents ex -facie based on mala fides, just
to create harassment for the petitioner (widow with her minor son); roaming from pillar to the post for her legal right of dues extendable to her but opposed by the respondents and denied by the trial, as well as, appellate Court which too without any justifiable reason, which in my perception caused miscarriage of Justice.
5. Coming to the merits of the case, it has been established that the petitioner is widow
of deceased Sultan Mehmood, who expired on 26th of Apri l 2017, leaving the petitioner and
minor son namely Babar Sultan, as legal heirs behind. So far allegation of Babar Sultan
(minor) being adopted son is concerned, the same in my opinion is a concocted story just to grab money and blackmail a helpless lady, for nothing but monetary benefits.
6. It has been observed that in the application under section 372 of the Succession Act,
1925, there was no mention of Babar Sultan son of the petitioner, perhaps with the impression that he was minor (his date of birth is 17th of July 2009) could have been treated
a bona fide mistake for valid reasons that parentage of the minor was duly supported by the record of NADRA and passport issued by the Ministry of Interior Government of Pakistan; presumption of truth attached with the official record is of genuineness unless proved otherwise, defined under Article 92 of the Qanun- e-Shahadat Order, 1984 (hereinafter the
"Order") which reads as under: -
"92. Presumption as to genuineness of documents kept under any law. The Court shall
presume the genuineness of every document purporting to be a document directed by any law to be kept by any person, if such document is kept substantially in the form required by law and is produced from proper custody".
7. Article 92 of the Order p rovides sanctity of the genuineness to documents provided by
law to be kept by any person, if such document is kept substantially in the form required by law and is produced from proper custody. Presumption regarding validity of public documents would carr y weight unless it has been effectively rebutted. Documents forming
the acts or records of the acts defined under Article 85 of the "Order" are called public documents, which reads as under:
85. Public documents. The following documents are public document s:
(1) …. …. …
(i) …. …. …
(ii) …. …. …
(iii) …. …. …
(2) Public records kept in Pakistan of private documents;
(3) …. …. …
(4) Documents required to be maintained by a public servant under any law; and
Further mentioned in detail, vide Article 129 of the Order which reads as under: --
"129. Court may presume existence of certain facts. The Court may presume the existence of any fact, which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and publ ic and private business, in
their relation to the facts of the particular case".
a. .........
b. .........
c. .........
d. .........
e. that judicial and official acts have been regularly performed;
f that the common course of business has been followed in particular cases."
8. Another attempt was also made to prove that the petitioner had been divorced by her
late husband during his lifetime, belied by the death certificate of late Sultan Mahmood,
dated 26th of February 2017 issued on 27th of Ma rch 2017, wherein the petitioner has been
shown as wife of late Sultan Mahmood; even not alleged in written reply. During course of
arguments when the learned counsel for the respondents was confronted with this legal and
factual aspect of the matter, he candidly replied that he does not press this second limb of allegation, i.e. divorce, which further supports the contention of the petitioner that the respondents after joining hands with each other merely wanted to deprive the petitioner of her legal and I slamic right of inheritance, dues and pensionary benefits with sham and
baseless assertions mentioned hereinabove, such an unfortunate trend cannot be appreciated in a society like our's.
9. Adverting to the point of limitation, whenever a question of limi tation appears to be a
mixed question of law and facts, then to advance the cause of Justice it is considered more apt to decide the cause on merits. In judicial system, law of limitation has its own
significance, relating to the period prescribed for init iating any proceedings the Limitation
Act, 1908 contains the scope and remedial sections i.e. 5, 12 and 14, which empowers a Court to enhance the period of limitation in peculiar circumstances of each case. Following are the guiding principles for adherenc e of Courts while deciding a question of limitation:
(i) Ordinarily, a litigant does not stand to benefit by lodging a suit or appeal late;
(ii) Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this, when delay is condoned, the highest that can happen is that a cause would be decided on merits after hearing the parties.
(iii) When substantial justice and technical consideration are pitted against each other, t he
cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non- deliberate delay;
(iv) There is no presumption that delay is occasioned deliberately or on account of culpable negligence or on account of mala fides. A litigant does not stand to benefit
by resorting to delay. In fact he (she) runs a serious risk.
v) It must be grasped that the judiciary is respected not on account of its power to legalize injustice on techn ical grounds, but because it is capable of removing injustice
and is expected to do so;
(vi) Prayer for condonation should be granted, if petitioner is not contumacious.
10. The courts below shown to have failed to exercise their jurisdiction properly and
appreciate the facts of the case in the light of relevant provisions of the law, thus, the petition
filed by the petitioner is allowed, the orders dated 17th March 2018 and 12th November 2018, passed by the learned trial, as well as, appellate Court are hereby set aside and the
earlier order dated 25th of May 2017 passed by the learned trial court is restored with the rectification by inserting the name of minor Babar Sultan as one of the applicant (through mother), the petitioner. Order accord ingly.
ZC/36/Bal.
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