Muhammad Farid and another Vs Hassan Pari Nisar and others

. JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT,

PESHAWAR

$udicial Department)

RFA No.285-Pl2024

Muhammad Farid and another Versus Hassan Pari Nisar and others

IUDGMENT

For appellants: Mian Zakir Hussain, Advocate.

For respondents: M/S Isaac Ali Qazi and Ahmed Hamza,Advocates.

Date of hearing: 27 .02.2025.

Dr. Kh fobal. J.-

1.In the background of this appeal lies a dispute over the distribution of their shari shares in the legacy of one late Aftab Gul, the predecessor/propositus of the parties. Ms. Hassan Pari, a daughter of late Aftab Gul filed a complaint before the Khyber Pakhtunkhwa tKP) Ombudsperson under section 4 of the KP Enforcement of Women's Property Rights Act, 20Lg (the Act aOLg).The crux of her complaint is that she and her brothers late Haji Muhammad Sharif Khan, late Muhammad Ashraf Khan, Farid Khan and Muhammad Rashid Khan (respondents) are entitled to their shari shares in the property left by her late father. Her complaint is silent on the remaining legal heirs by name. However, it speaks that the legal heirs, apparently meaning that all are entitled to their due shares. She alleged that the respondents have been managing and getting profits from the property since the death of their father and refusing her rights. She admitted that all the legal heirs are entitled to their due shares in the property according to law.

2.The appellants submitted their written reply, stating that the respondents 1 and 2 have passed away. They raised two

defences: firstly, the respondent has been given her due share which she has sold; and secondly, a civil suit titled as Ilyas, etc v. Farid Khan, etc is pending which is in the knowledge of the respondent as she is a party to it.

3.The worthy Ombudsperson proceeded with the complaint and finally allowed it ex parte by her Order dated 04.07.2024. Muhammad Farid and Rashid Khan-the respondents # 3 and 4 in the complaint-showing themselves as sons of late Aftab Gul (brothers of the complainant) filed this appeal under section 8 of the Act, 20L9 against the order date 04.07.2024.

4.Arguments of Mr. Zakir Hussain, learned counsel for the appellants and Mr. Issac Ali Qazi, learned counsel for the respondent, heard at length and the record perused.

5.Mian Zakir Hussain, representing the appellants, in his arguments, focused on two ground: firstly, the worthy Ombudsperson condemned the appellants unheard by proceeding against them ex parte without any just and proper cause; and, secondly, the worthy Ombudsperson has no jurisdiction to proceed with the complaint because the matter requires recording of evidence and intricate adiudication as a civil suit is already pending adiudication.

6.On the other hand, Mr. Issac Ali Qazi argued that the relationship of the parties, being legal heirs of common predecessor, is accepted which matter neither requires recording of evidence, nor does it involve intricate adjudication. He invited the attention of this court to the preamble of the Act 20L9, emphasizing that the law aims at ensuring grant of shari shares to women in the inheritance of their parents and require grant of quick relief in the perspective of protection and promotion of women's property rights. He argued that the appellants can ioin the execution proceedings carried out pursuant to the impugned order.

7.The following two points need determination by this court:

a. Whether the appellants were condemned un- heard?

b. Whether the impugned order is sustainable under section 6 of the Act, 20L9

8.The record reflects that on 17.01 .2023, the date on which the complaint was filed, the appellants were summoned for L4.04.2023. They were not served owing to their incorrect addresses. The complainant was, therefore, directed to submit correct addresses of the appellants. The order date 05.07.2023 does not specifically mention that the appellants were duly served. However, each of them, was fined to Rs. 5,000/- and non- bailable warrants of their arrest were also ordered for their compliance by the Deputy Commissioner. On 07.09.2023, the next date of hearing both the parties were marked as present in person. However, notices were directed to be sent to "all the parties concerned...especially strict notices to the respondents [appellants] to submit written reply within 07 days...[.]" The record further reflects that on 02.1L.023, while the appellants were shown as absent, it was noted that they had filed written reply on 02.10 .2O23.The complaint was fixed for final arguments on 18.0 L.2024, at 02.10 pm. Counsel for the appellants sent an application for adjournment of the proceedings on 18.0L.2024. The ground for adjournment mentioned in the application was that the lawyers were on strike on that day. The application was accepted at the cost of Rs. 10,000/-. 0n 05.03.2024,the next date, the proceedings were adjourned till 2L.05.2024 onthe request of both the parties. On 21.05.2024, once again learned counsel for the appellants sent an application as on that day, too, the lawyers were on strike. The proceedings were, thus, adjourned till 04.07.2024 for final arguments. On 04.07 '2024, the request of clerk of counsel for the appellants for adjournment was not allowed and the matter was proceeded with ex parte, with observation that the appellants were "persistently using delaying tactics."

g. From the above history of the proceedings, it appears that the counsel for the appellants couldn't attend the proceeding only

once and that was the last date of the hearing. The application of adjournment because of lawyers' strike was allowed once at cost and, for the second time, without cost. It follows that the appellants were denied the opportunity of hearing. If at all, the complaint required quick disposal, adjournment on cost could have been a iust and proper way out. The ex parte proceedings, needless to say, deprived the appellants of their right of hearing which is, above all, a violation of article 10-A of the Constitution $ustice Qazi Faez Isa and others v. President of Pakistan and others (PLD 2022 Supreme Court LLg and Federal Government E mp I oy e e s H o u sing Autho r ity thr ou g h D i r e cto r G e n er al, I slam ab a d v. Ednan Syed and others, (PLD 2025 Supreme Court 11).

10.Moving on to the second question, a copy of the plaint in the above referred civil suit-llyas, etc. v. Farid Khan, etc.-is available on the record. A close perusal of the plaint would transpire that the suit pertains to declaration and partition of huge landed properEy of late Aftab Gul in village Bahadur Kalay, Peshawar. In that suit, the plaintiffs and the defendants 1-19 are all his legal heirs. The property comprises of numerous Khatas and Khasras, total measuring 78 Kanals, 1,4 marlas of which inheritance mutation # L0975 was attested on 30.05.2017. Partition of various kinds of built up property-markets, shops, residential quarters, a CNG filling station, houses, a clinic, a school, a milk farmhouse and a warehouse (godown)-has been prayed for. It is stated in the prayer for partition that some defendants therein are in possession of lucrative commercial property. Admittedly, the respondent is a party as a defendant in the suit. No doubt, the worthy Ombudsperson has ordered the Deputy Commissioner to give the respondent her shari share. However, the carving out of the shari share of the respondent and the delivery of its actual physical possession to her, while there are more than 20 other sharers, is a profoundly challenging task. Of great importance is the pendency of the civil suit in which a preliminary decree may be passed followed by a final decree for which a commission will be appointed to separate shares of and deliver possession to each and every sharer in an equitable manner to their satisfaction. Considerable property is

commercial in nature. Obviously, each sharer will hotly contest the proceedings in the civil court to get the most lucrative chunks. In such circumstances, the complaint requires in-depth inquiry and intricate adjudication as provided in section 6 of the Act, 20L9. Above all, the delivery of possession as the learned Ombudsperson has ordered also faces legal challenges this court will discuss in the later part of this opinion.

LL. In order to appreciate the controversy in its proper legal context with reference to section 6, it seems pertinent to have a word about the scheme of the Act 20L9. As per its preamble, the Act 20L9 seeks to ensure that women's rights of ownership and possession of properties are not violated by means of harassment, coercion, force or fraud. The law also seeks to consider the matters connected with or incidental to such rights. True, the law is an additional piece of legislation introduced for protection of women's rights in properties. It allows action in case of deprivation of a woman on the complaint of anyone, not only the aggrieved woman hersell but any other person-even the Ombudsperson himself on his own, including a non- governmental organization-on her behalf l(proviso to section 1[1). The Ombudsperson has the power to deal with complaints in three scenarios: firstly, where no proceedings are pending before a court of law z(section 4); secondlR where proceedings are pending before a court of law (section 7); and thirdly, where filing of a Reference to a civil court is necessary (section 6).

L2. While dealing with a complaint under section 4 in which no proceedings are pending before a court of law, the Ombudsperson has to make a preliminary assessment of the complaint. After preliminary assessment, the Ombudsperson may see two options: firstly, that the matter requires further probe or investigation; and secondly, the matter doesn't require further probe or investigation. In the first situation, he may refer the matter to the concerned Deputy Commissioner, who, after calling the record, if necessary and issuing notices to the complainant and her adversaries, conduct a summary inquiry and submit a report within 15 days. In the second situation, he may, after

v calling any record, if deemed necessary pass an order of possession and transfer of ownership of property to the aggrieved woman under section 5. In the third step, the Ombudsperson shall after receipt of report of the Deputy Commissioner and the conclusion of his own inquiry confront both the parties to submit objections, after which he may conduct hearing and, thereafter, pass an order under section 5.

13.Section 7 empowers the Ombudsperson to deal with a complaint in which proceedings are pending in a court of law. The procedure under section 7 is almost the same as laid down in section 4. However, as sub-section 3 of this section provides, if the matter doesn't require any detailed probe or investigation, the Ombudsperson, may after calling any record, recommend to the court for termination of the proceedings or holding them in abeyance. The Court may pass any order and it may permit the Ombudsperson to proceed further under the Act 2019.

L4. Section 6 enjoins the Ombudsperson to file a reference to the Civil Court. It reads as under:

6.Reference to the Court.--(l) Notwithstanding anything contained in Sections 4 and 5, if upon preliminary assessment, or upon receiving the report of the Deputy Commissioner or upon conducing further summary enquiries by the Ombudsperson himself, he comes to the conclusion that the matter requires in-depth enquiry investigation or detailed recording of evidence or intricate adjudication, he shall formulate a reference along with all the reports and material collected and submit the same to the Civil Court of competent jurisdiction preferably within sixty days of receipt of the complaint under sub-section (1) of Section 4.

(2)Notwithstanding anything contained in any other law, the Civil Court shall entertain the reference under sub- section (1) as a civil suit and proceed further in terms of the Code of Civil Procedure, 1908 (Act V of 1908) and the relevant rules.

15.It is clear from the above that the Act 20L9: firstly, is a special law for protection of women's property rights; secondly, broadens the scope of the women's right to access to justice; thirdly, seeks to resolve women's property rights disputes which do not involve complicated questions of fact and intricate

questions of law; fourthly, empowers the Ombudsperson to make some intervention even when proceedings are pending before a court fsection 7(3)), a challenglng provision to be discussed in greater detail in the succeeding lines; and lastly, requires the Ombudsperson to make a reference to the Civil Court if the matter requires further probe and intricate adjudication.

L6. The nature of the proceedings and the challenges, especially in relation to section 6, referred to above, have been discussed by this court in Mst. Falak Shehnaz and another v. Mst Farkhanda Deeba and others (PLI 2023 Peshawar 94). As regards the nature of the proceedings, after exploring the conceptual underpinnings of the office of Ombudsperson from diverse jurisdictions, the court observed:

Z4.Thesurvey of laws regulatingthe office of Ombudsman in various jurisdictions as well as in Pakistan and the case law referred above would show that the office of Ombudsman has been established to investigate and report on private citizen complaints about the Government or its Agencies relating to its mal- administration. The scope and functions of Ombudsman is a non-adversarial adjudicator and he cannot render definite findings on any issue rather he recommends to the relevant authority if he finds any mal-administration in any public sector organization to the relevant authority. Ombudsman thus falls in the regime of executive limb of the State though he performs his functions as quasi- judicial, he can record evidence; investigate a matter, and functions as a watchdog on Government Institutions. He receives his authority from Parliament.

L7. The Court discussed the challenging nature of section 7[3) as under:

27 . There is an apparent disparity between Section 4 and Section 7 of the Act. Section 4 envisages that a woman who is deprived of her ownership or possession of the property may file a complaint to the Ombudsman if no proceedings in a Court of law are pending regarding the property whereas in Section 7 she has been given authority to entertain a complaint in respect of any dispute relating to the property right of woman despite the pendency of claim before the competent Court of law. She is authorized to conduct enquiry investigation and probe through Deputy Commissioner and can conduct a summary enquiry and after the conclusion of such enquiry she may file a report in the Court of law in which the case is already pending

recommending that the proceedings in the Court may be terminated or put in abeyance unconditionally or subject to any Court order the Ombudsman be permitted by the Court to take further proceedings under the Act.

28.The scheme of the law under the Enforcement of Women's Property Right Act, 20L9 is aimed to allow the executive limb of the State to conduct a parallel judicial proceeding. This in my humble view is an excessive delegation and would offend the principle of trichotomy of power which is one of fundamental value of our Constitution where under all the three organs of State namely the legislature, the executive and the judiciary are required to perform their functions and exercise their powers within the allotted sphere.

18.Reverting to the case in hand, the matter requires in-depth inquiry as the respondent is admittedly not the only legal heir of her late father Aftab Gul. As noted above, the legal heirs of late Aftab Gul are numerous and his legacy comprises of both huge agricultural and commercial property. A declaratory and partition suit is already pending before a civil court. In such circumstances, as noted above, the separation of the share of the complainant and delivery of its possession through the Deputy Commissioner has legal challenges. In Shehnaz, referred to above, the legal challenge this court has stated is that in a case where the land is agricultural in nature, the mechanism for partition is provided in section 135 of the Land Revenue Act, L967. Needless to say, the Deputy Commissioner has to follow a legal process about which the Act 20L9 is awfully silent. Then, as the court has further explored, for partition of the land not covered under the land revenue law, a civil suit lies for its declaration and partition under section 9 of the Civil Procedure Code, 1908 (CPC). The court has further elaborated:

Section 54 of CPC further envisages where the decree is for partition of an undivided estate, assed to payment of revenue to Government or for the separate possession of a share of such an estate, the partition of the estate or separation of the share shall be made by the Collector or any gazetted subordinate of the Collector deputed by him, whereas, under Order 20 Rule 18 sub-Rule [2) [CPC], if the dispute relating to separation of share relates to other immovable property and if the partition or separation cannot be conveniently made without further inquiry the Court may pass a preliminary decree declaring the rights of the several parties in the joint property. In the Act of

20L9, no such mechanism has been provided for determination of the share of each co-owner in the joint property.

L9. Another challenge-the Court in Shehnaz underscored rather dubbed as "an inherent defect" in the Act 2019-is that it does not provide a procedure for delivery of possession to an aggrieved woman, of her share in the joint property. while it seems easier, as the court observed further, to grant relief to an aggrieved woman under section 5, after a preliminary inquiry if her title is clear and her adversary is not a co-owner. The real challenge arises, the court further emphas ized, when an aggrieved woman is a joint owner with her other family members in the property in dispute. Certain difficulties come in the way: firstly, a joint property could not be partially divided to the extent of the share of an aggrieved woman. Secondly, all co-owners in the property must be before the court. As discussed in Itluhammad Ayaz v. Zareef Khan (PLD 20L6 Pesh. 8):

The rationale behind these essential requirements is to be safeguard all the co-owners from being discriminated and thus the entire corpus is placed in a common pool for the Court to ensure that each co-owner is allotted share equitably depending on the value thereof, which would surely be dependent upon the area, location, and nature of the property.

Thirdly, for agricultural property, an application is made before the revenue authorities under section 135 of the West Land Revenue Act ,L967, and for built up propert/, a suit is filed before a Civil Court. Arguably, one may say that the share of an aggrieved woman may be "separated" under the Act 20L9. But even that is not free of difficulties. This issue has been discussed by the Supreme Court of India in the 2009 Shub Karan Bubna v. Sita Saran Bubna and other lhtt:/ /indiankanoon.org>doc. visited 11.03.20251, in the following words:

Separation of share/s refers to a division where only one or only a few among several co-owners/coparceners get separated, and other continue to be joint or continue to hold the remaining property jointly without division by metes and bounds. For example, where four brothers owning a property divide it among themselves by metes and bounds, it is partition. But if only one brother wants to

v get his share separated and other three brother continue to remain join! there is only a separation of the share of one brother. In a suit for partition or separation of a share, the prayer is not only for declaration of plaintiffs share in the suit properties, but also division of his share by metes and bound. This involves three issues: (i) whether the person seeking division has a share or interest in the suit property/properties; (ii) whether he is entitled to the relief of division and separate possession; and (iii) how and in what manner. the property/properties should be divided by metes and bounds? [Emphasis supplied].

In the peculiar circumstances of the case in hand, the separation of share of the responden! if at all, does not seem possible because the mode and manner (the last issue) has to be determined. Moreover, other co-owners have already filed a suit for declaration and partition before the Civil Court. The issue of separation, thus, stands overshadowed. In such circumstances, the reference to the Civil Court under section 6 emerges as the only option.

20.For the above detailed reasons and the legal principles referred, this court has reached to a clear and definite conclusion that the leaned Ombudsperson failed to afford to the appellants a demonstrably fair and proper opportunity of hearing while deciding the complaint; and, that she failed to appreciate that filing of a reference was the only option for the resolution of the dispute. Hence, questions (a) is answered in the affirmative, and appeal, the [b) is answered in the negative. while allowing this impugned final order dated 04.07.2024 is set aside.

2L. This court respectfully subscribes to the view of the learned Bench in Shehn az that introduction of "appropriate legislation" within the limits of the Constitution would be helpful in the protection of women's rights, especially under the law of inheritance.

Announced.

Dt: 7.02.2 5.

(S.B)

Hon'ble Mr. Justice Dr. Khurshid lqbal