Mst Akbari Begum etc. vs Mst Eshrat Bano

Form No: HCJD/C-121

JUDGMENT SHEET

IN THE LAHORE HIGH COURT,

MULTAN BENCH, MULTAN

JUDICIAL DEPARTMENT

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Mst. Akbari Begum and another Versus Mst. Ishrat Bano (deceased) and

JUDGMENT

Date of hearing: 22.12.2021 Petitioners by: Raja Naveed Azam, Advocate Respondents by: M/S Rao Muhammad Arif Khan and Sumaira Hashmi, Advocates

Sultan Tanvir Ahmad, J:– Through the present Civil Revision filed under Section 115 of the Code of Civil Procedure, 1908 ( the ‘Code’), Petitioners have challenged the Judgment and Decree dated 23.07.2018 passed by learned Additional District Judge, Multan, whereby the Judgment and Decree dated 06.10.2016 passed by learned trial Court has been upheld, while dismissing Civil Appeal No. 07/13 of

2.Facts, necessary for the disposal of the present revision, are that on 22.07.2010 Respondents No.1 to 3 filed suit for declaration, permanent injunction with consequential relief claiming that Respondent No.1 is the widow of Khalil Ahmad (hereinafter called as the ‘Deceased’) and Respondents No.2 and 3 are the children of the Deceased, therefore entitle to the share in the pensionery benefits and other funds extended to the

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Deceased by Respondents No.4 and 5. The said suit was contested by Petitioners by way of filing written statement and raising legal as well as factual objections resulting into framing of following five issues, on

1.Whether the plaintiffs have got no cause of action and locus standi to file this suit? OPD

2.Whether the plaintiffs have not come to the Court with clean hands? OPD

3.Whether the plaintiff No.1 was the widow and plaintiffs No.2,3 were the real children of late Khalil Ahmed?

OPP

4.If above issue proved in affirmative, whether plaintiffs are entitled to the share in the legacy of the deceased and the amount drawn by defendants No.3 and 4 so far was liable to be returned to the extent of plaintiff’s share? OPP

5.Relief.

3.The Petitioners filed an application dated 06.09.2014 for framing of an additional issue with respect to fabrication of Nikahnama of Respondent No.1 and Deceased. As a consequence of the said application, following additional issue was framed vide order dated “Whether the nikah-nama between the plaintiff No.1 and the deceased Khalil Ahmad is forged one? OPD-3&4.”

(Hereinafter called as the “Additional Issue”)

4.Parties led their respective evidence. Respondent No.1 appeared as PW-1 and produced

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Muhammad Aslam and Muhammad Anwar Hussain as PW-2 and PW-3, respectively. As documentary evidence, Nikahnama dated 29.09.1993 (the ‘Nikahnama’) brought on record as Exh.P1 as well as other documents were brought on record as Mark-A to Mark-N. On the other hand, Petitioner, Mst. Akbari Begum, Shafique Ahmad and Bahadar Ali appeared as DW-1 to DW-3 and original passport bearing No. H270610 of the Deceased Khalil Ahmad (Exh.D1), vaccination certificate of the Deceased as (Exh.D2), original service record and identity card of the Deceased were placed on record as Exh.D3 to Exh.D4.

5.Raja Naveed Azam, learned counsel for the Petitioner, seeking order of remand by way of setting aside the aforesaid Judgment and Decrees, has argued that learned two Courts below while deciding the matter have failed to discuss the Additional Issue which resulted into miscarriage of justice as well as violation of settled law requiring issue-wise findings in terms of order XX of the Code. It is contended that in the absence of separate findings on the Additional Issue the impugned Judgments and Decrees are not tenable and the circumstances require the remanding the case to the learned trial Court. It has been further submitted that the learned Courts below have placed and presumed the burden to prove the fraud with respect to the Nikahnama on the shoulders of the Petitioners which has caused serious prejudice on the case of the Petitioners.

6.Conversely, M/s Rao Muhammad Arif Khan and Sumaira Hashmi, learned counsel for the Respondents while relying upon order XX (5) of the

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Code as well as the cases titled “Mst. Jamila Begum and 4 Others versus Deputy Settlment Commissioner, Rehabilitation, D.I. Khan and 5 Others”(2008 CLC 1433) and “Narayan Bhagwantrao Gosavi Balajiwale, Versus Gopal Vinayak Gosavi and Others”(AIR 1960 Supreme Court 100) have submitted that no prejudice to the case of the Petitioners was caused and the Judgments and Decrees of the learned two Courts below are based on cogent reasoning, therefore, warrant no interference in the revisional jurisdiction of this Court. It is also submitted that the burden is rightly placed on the Petitioners, as issue framed with respect to the Nikahnama and Nikahnama was raised by the Petitioners’ side and it is well settled law of evidence that burden always lays upon the party asserting a fact.

7.Essentially, the arguments before this Court by the learned counsel for the parties have raised the following two questions for consideration:- (i). Whether in the absence of independently deciding or even discussing the Additional Issue, when the same was framed by the learned trial Court on the specific request of the Petitioners and after hearing the other side, has caused miscarriage of justice?

(ii). Whether the learned trial Court has erred in placing onus of proof on the wrong side and if learned Courts below have wrongly assumed the burden of proof on the shoulders of

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the Petitioners to prove the fabrication of the Nikahnama?

8.Under Order XIV Rule 1 of the Code, when one party affirms material proposition of fact or law and the other denies the proposition, the Court is ought to frame issue as this disputed material proposition. If more than one material propositions, independent of each other, are disputed by the parties separate issues can be framed. While farming the issues the learned Courts can also look into the material indicated in Order XIV Rule 3 of the Code. Duty is also imposed on the parties to get proper issues framed and come forward with relevant objection as well as suggestions with respect to such material propositions in dispute and divergence of stances of the parties that require formulation of issues. However, if composite issue is framed that encompasses more than one contradictory stance, interconnected to each other, the same does not per se vitiate the trial. The party challenging the same has to show some serious prejudice caused by not framing independent issues. It is also settled now that when composite issue(s) regarding merits of the case is framed and parties being fully cognizant of the real matter, have led evidence accordingly, in such eventuality contention qua the non- framing of issue fades as inconsequential, as long as judgment fulfills the requirement of law. The Honourable Supreme Court of Pakistan in case titled in cases titled “Amjad Ikram Versus Mst. Asiya Kausar and 2 others” (2015 SCMR 1), “Muhammad Amir through L.Rs. versus Muhammad Sher and others” (2006 SCMR 185) “Mst. Sughra Bibi alias Mehran Bibi versus Asghar Khan

Civil Revision No.1156-D of 2018 and another”(1988 SCMR 4) has already settled the aforesaid preposition of law. In Amjad Ikram case (supra) the Honourable Supreme Court has observed as follows:- “The learned trial Court has framed a composite issue regarding merits of the case, which has been reproduced hereinabove and when the said issue is examined in the context of the pleadings of the parties, more particularly, Para No. 2 of the written statement on merits, there can be no manner of doubt, as to the real matter in controversy, which required adjudication by the Court. Throughout the trial, the parties were fully cognizant of the real matter in controversy and the facts, which were required to be proved by them in support of their perspective stands and led evidence accordingly. In such an eventuality, the contention of the learned counsel qua the non-framing of issues pales into insignificance”.

(Emphasis supplied)

9.In “Muhammad Amir” case (Supra) the Honourable Supreme Court of Pakistan observed that as long as the judgment deals with all points raised before the learned trial Court not discussing each issue separately does not renders the judgment illegal or ab initio void:- “...It transpired from scrutiny of judgment of learned Additional District Judge that each issue was not discussed separately but it hardly matters for the simple reason that all the contentions agitated before the learned Additional District Judge has been dilated upon and decided in a comprehensive manner. It is well-settled by now that a judgment which deals with all the points raised, fulfills the requirements of law even though it may not have discussed each issue separately cannot be termed as “illegal or ab initio void” as

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pressed time and again by the learned Advocate Supreme Court on behalf of the petitioner.”

(Emphasis supplied)

10.In the case in hand, Respondent No.1 claimed to be the widow of the Deceased, which is denied by the Petitioners in the written statement. The relevant part of the denial in paragraph No.1 of written statement is as follows:-

لیلخادمحوتمیف ےناینپزدنیگںیماکییہاشدییکیھتوجہکاسےن )ےسیکیھتاوراسیکالعوہلیلخادمح3امسمۃاربکیمگیب(دماعہیلعربمن رفیض اور۱ وتمیف ےن اینپ زدنیگ ںیم وکیئ اشدی ہن یک یھت۔ دمہیع ربمن یلعجاکنحانہمیکاینبدرپاےنپاپوکلیلخادمحوتمیفیکویبیاظرہرکےک اک1 وک البوہج رپاشین رک ریہ ےہ ہکبج دمہیع ربمن4۔3 دماع مہیلع ربمن --------لیلخادمحوتمیفےکاسھتوکیئقلعتواہطسہنےہ 11. On account of said denial, by the petitioners of the proposition of fact, the learned trial Court framed the following issue:-

“Whether the plaintiff No.1 was the widow and plaintiffs No.2, 3 were the real children of late Khalil Ahmed?”

The above issue is comprehensive enough to cover the proposition or the dispute and the controversy as to the Respondent No. 1 being widow of the Deceased as well as it wraps ancillary question of genuineness of Nikahnama, therein. To prove the rival stances, both parties have set up their case by all means, including by way of providing list of witnesses, leading their evidence covering all the aspects of Nikah or the Nikahnama. Respondent No. 1 when appeared as PW-1, categorically deposed that she was a lawful wife of the Deceased and

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while brining on record Nikahnama in original as Exh.P1, has given the following statement:- ۔۔۔ ریما اکنح رمہاہ لیلخ ادمح وتمیف رحتریی ےہ۔ وج الص اکنح ںیہ۔اشدیExh.P1/1 ےہ۔سجرپریمےدطختسExh.P1انہم ---ےکدعبلیلخادمحےنےھجمریمےےکیمرھگیہرھک

PW-2 Muhammad Aslam son of Umar Din claimed to be the signatory of the Nikahnama, who confirmed the Nikah in the following terms:- ںیم اشدی ںیم رشکی اھت۔ اوراکنح انہم ںیم دنہل ےک ولیک ےک--- Exh.P1/2 رقتر اک دورسا وگاہ وہں اکنح انہم رپ ریمے دطختس ---وموجدںیہ۔سجیکںیمدصتقیرکاتوہں Another witness of Nikah namely Muhammad Anwar Hussain son of Buali appeared as PW-3 and also confirmed signing the Nikahnama:- وک رس ااجنم29.09.93 ۔۔۔۔ رشعت ابون ےس ان یک اشدی ومرہخ دیپاوہےئںیماشدیںیمرشکی3،2اپیئسج ےسدوےچبدمایعنربمن اھت اکنح انہم رحتریی وہااکنح انہم رپ ریمے دطختس وطبر اشدی ےک وگاہ --- وموجدںیہ۔نجیکںیمدصتقیرکاتوہںExh.P1/32ربمن

12.The factum of lawful marriage and the genuineness of Nikahnama is also attempted to be negated by the Petitioners’ side during the course of trial and led apparently all evidence available to them. Somehow, while giving the final Judgment learned trial Court has not mentioned the Additional Issue and rather framing of this Additional Issue is not mentioned anywhere in the entire Judgment. Nonetheless, detailed reading of the said Judgment reflects that the learned Court while examining issue No.3 has given its conscious

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decision as to proving or disapproving of the Nikahnama. Discussion in paragraph No. 9 of the Judgment of the learned trial Court shows that the evidence including above reproduced portion is considered in all material details, Reading of paragraph No. 10 of this Judgment also suggests that the learned Judge was fully cognizant of the fact that the genuineness of Nikahnama is also in dispute and on the basis of said discussion following conscientious conclusion was arrived at, with respect to Nikah and Nikahnama:- “In view of above said evidence and perusal of Ex.P-1 reveals that signature of PW-2 and P.W-3 exist on the Exh.P-1. However according to Sheria, two witnesses are necessary to prove Nikahnama. Both the witnesses PW-2 and PW-3 were present at the time of Nikah, which reveals that Nikah was solemnized between deceased Khalil Ahmad and Ishrat Bano. On the other hand defendants denied the existence of Nikah, but they have not produced any cogent and convenient evidence to rebut the contention of plaintiff. Therefore Nikah between the parties is valid and plaintiffs No.1,2 and 3 are legal sharer in the arrears of deceased Khalil Ahmad. Thus issues No. 03 to 04 are decided against defendant and in favour of the plaintiff”.

13.The learned appellate court has also given details and sound reasons regarding issue in hand, which being court of appeal after considering evidence has concurred the conclusions of the learned trial Court.

14.In the given situation and the circumstances of the case, where even after framing the Additional Issue it has not been mentioned in the Judgments given by the learned two Courts below, can be akin to having no

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discussion on the said issue, autonomously or at worst it is analogous to not framing this issue despite request. Law as to both situations is extensively discussed above and I am of the considered view that failure to caption or reproduction of issue in the body of the judgment is barely important as long as judgment contains findings on material points in controversies amongst the disputants, after application of judicial mind as well as resolution of the questions considering evidence and based on logical reasoning. I am further fortified in my by the law already laid down in cases titled “Muhammad Ibrahim (Deceased) through LRs and another Versus Taza Gul and Others”(2020 SCMR 2033) and Mian Muhammad Mehfooz and 2 Others versus Mian Muhammad Sarfraz and 43 Others”(2018 YLR 872). The observations of the Honourable Supreme Court of Pakistan in case titled “Muhammad Ibrahim (Deceased) through LRs and another”(Supra) are highly relevant, which are as follows:- “So far as framing of specific issues in accordance with the pleadings of the parties or non-framing of any issue is concerned, we have already declared that framing or non-framing of issue cannot be a ground for reversing the judgment and decree of any court and party cannot pray for remand of the matter at later stage on the basis that any issue which was required in accordance with the pleadings of the parties was not framed. We are of the view that the evidence of the parties is to be led in accordance with the pleadings. It is not a legal defect if any specific issue is not framed and party claiming that issue do not agitate the matter for decades and if the language of existing issues is not in accordance with the wishes of any of the

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parties. We have seen that the issues already framed, specially Issue No. 8 was with regard to the purchase by the appellants and in rebuttal thereof they were having full opportunity to produce their evidence”.

(Emphasis supplied)

15.The argument of the learned counsel for the Petitioners as to the burden of proof purportedly placed on wrong side, is also misplaced, in view of the settled proposition of law that when both disputants have led sufficient and relevant evidence, allocation of onus of proof has no relevance. In this regard, reliance can be placed on law laid down in the cases titled “Durga Prasad and another Versus Ghanshiam Das and others” (PLD 1948 Privy Council 171), “Mst. Qaisa’r Khatoon and 12 others versus Maulvi Abdul Khaliq and another (both represented by heirs)” (PLD 1972 S C 334) and “Mst. Bakht Bano versus Mst. Zainab Khatoon” (1991 MLD 2389). It will be beneficial to reproduce the relevant part of Mst. Qaisa’r Khatoon case (supra) which is as under:- “In any event, [the question of onus of proof has lost its importance now after all the relevant evidence has been adduced and placed on the record (vide Manaka v. Madha Rao) (AIR 1950 P C 25). The question of the burden of proof becomes material only where the Court finds tile evidence so evenly balanced that it can come to no definite conclusion-(Vide PLD 1948 P C 171). In such an event the rule is that the party on whom the onus lay must fail. This, however, is not the case here,. for, the evidence is, by no means, evenly balanced.”

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16.The facts being established that Respondent No.1 is widow of the Deceased and Respondents No.2&3 are children from their lawful wedlock, it would superfluous to further rehearse the elaborate scrutiny to each and every incident in the case which has been subjected in the careful Judgments of the two learned Courts. No case of material irregularity, illegality or jurisdictional defect, requiring exercise of revisional jurisdiction, is made out.

17.This civil revision being devoid of merits is, accordingly dismissed, with no order as to costs.

(Sultan Tanvir Ahmad) Judge

APPROVED FOR REPORTING

Judge

Announced in open Court on------------------- Judge Jamshaid Ali Hashmi