BASHIRAN BIBI Versus HIDAYATULLAH

ORDER

MUHAMMAD BASHIR KHAN JEHANGIRI, J.-- -This petition for-special leave to appeal arises from the judgment of a learned Single Judge of Lahore High Court, Lahore dated 8-5-1995, dismissing Civil Revision No.724 of 1995 in limine.

2. The litigation between the parties has a chequered history. Mst. Maryam, mother of petitioners/respondent No. l got huge evacuee property allotted in village Mandhiala Tegha, Tehsil and District Gujranwala. She had been survived by three daughters, namely, Mst. Bashiran Bibi, Mst. Rashida Bibi and Mst. Hameeda Bibi and a son Hidayatullah. Mst. Maryam appears to have transferred a substantial portion of her valuable land in favour of her son Hidyatullah and her six grandsons from Hidayatullah by way of gifts and sales. On 5-7-1979 the three daughters of Mst. Maryam, petitioners herein, sued Hidayatullah and his sons, respondents, for the annulment of exchange mutation dated 27-6-1969 and sale deeds dated 19-7-1978 and 18-3-1979 purportedly transferring a big chunk of the land in dispute in favour of the latter. On 8-3-1980 an application was moved by the counsel for the petitioners for requisitioning the file of the suit as the parties had compromised the dispute. The file was requisitioned. On the same day the following statement of the petitioners in vernacular was recorded:--

The Court then proceeded to record the following order:--

On 9-9-1982 the petitioners filed another suit giving rise to this petition. In paragraph 9 of the plaint, it has been averred that in the earlier suit a right to approach the Court had been reserved if any party failed to abide by the terms of the compromise and as the respondents had violated the said settlement the suit was being filed. The respondents moved an application under Order VII, rule 11, C.P.C. for dismissal of the suit mainly on the ground that it was barred under Order XXIII, rule 1, C.P.C. and "other provisions of the C.P.C." This application was contested by the petitioners on the plea that the provisions of Order XXIII, rule 1, C.P.C. were not attracted, for, the suit was filed on a fresh cause of action arising out of the respondent's failure to give the petitioner's share in the land. The Trial Court accepted the application of the respondents and rejected the plaint under Order VII, rule 11, C.P.C. The appeal filed by the petitioners in the Court of District Judge also met with the same fate on 4-6-1984. The petitioners went in revision against this order to the High Court. The learned Judge in Chamber observed that learned Courts below had held that: (i) the previous suit was not dismissed as withdrawn due to the prayer in the application purportedly filed by the petitioners during the pendency of earlier suit; (ii) that the suit was, therefore, not barred under Order XXIII, rule 1, C.P.C.; and (iii) that the Courts below were required to have determined the legal effect of order passed in the earlier suit dismissing it on its maintainability independent of Order XXIII, rule 1(c) C.P.C. The learned Judge in the High Court, therefore, reached the conclusion that the two Courts below have ignored to address the proposition whether any fresh cause of action had arisen in the facts and the circumstances. In this context, it was pleaded on behalf of the respondents that in the application moved in the previous suit no prayer was made by the petitioner seeking permission to file fresh suit and that such prayer in a separate application was a spurious addition with a view to re-opening the matter. The certified copy of the application obtained on 22-9-1982 containing the aforesaid assertion was sealed by the High Court and the case remanded to the Trial Court to decide the case afresh in the light of the observations made.

4. In the third round out of which this petition has arisen, the learned Trial Court addressed the issue: whether the petitioners had reserved during previous round any right to approach the Court if the respondents did not abide by the undertaking that petitioners' rights would be restored to them. The respondents had examined in the Trial Court Mr. Shaukat Hussain Khan, Additional District Judge who had dismissed the earlier suit and supported the assertion of the respondents that copy Exh. P.2 appeared to have been planted on the record and further that initials at the back of the application were not put by him. The learned Trial Judge lent support for this plea from: (i) the statement of the attorney of the petitioners when he had admitted in his cross-examination that only one application was moved by him: (ii) complete absence of this plea in the statement of attorney before the Trial Court and the order passed thereon. The Trial Court, therefore, reached the conclusion that the earlier suit was dismissed as withdrawn and no fresh cause of action had accrued to the petitioners. Resultantly, in the third round too, the plaint was rejected by the learned Trial Judge under Order VII, rule 11, C.P.C. vide order dated 28-6-1994. In appeal, the learned Additional District Judge concurred with the findings of the learned Trial Judge. In Civil Revision No.724/1995, the learned Single Judge took note of the concurrent findings of fact that the suit was based on the same cause of action on which the earlier suit had been dismissed as withdrawn, therefore, it was not maintainable. According to the learned Judge, the two Courts below have not committed any material illegality or irregularity in exercise of jurisdiction vested in them under the law, therefore, the revision petition was dismissed in limine.

5. In support of the petition, Rana Abdur Rahim Khan, learned counsel for the petitioners, contended before us, firstly, that the Courts below have not kept the interest of weak and females of rustic background in their view and instead they have been wrongly non-suited on the ground that the petitioners had withdrawn the suit and, therefore, it was barred under Order XXIII rule 1, C.P.C. Reliance was placed on the precedent of this Court in Ghulam Ali v. Ghulam Sarwar Naqvi PLD 1990 SC 1 to contend that in the instant case the two Courts below and the learned Judge in Chamber of the High Court ignored to be the custodians of the rights of females and have not noticed the fraud played upon "the unwary sisters". Secondly, that there was no basis for the Courts below to hold that the petitioners had withdrawn their earlier suit unconditionally whereas it was evident on the record that the petitioners had filed two applications on 8-3-1980 photo copies Exh. D.W.1/1 and Exh. P.5., (i) for requisitioning the file fixed for hearing on 23-3-1980 and (ii) for conditional withdrawal of the suit containing unequivocal assertion that if the parties failed to abide by the terms of the compromise then the petitioners would have a right to approach the Court. It was, therefore, contended that the two Courts below have erred to hold that the last mentioned application had been planted in the record.

6. The plea contained in the first contention besides being hypothetical is also new one. There is no cavil with the principle enunciated by this Court in Ghulam Ali's case supra wherein some guidance was furnished for deciding the inheritance rights of females particularly the sisters qua their brothers and that any effort to disinherit the sisters should be thwarted by the Courts. In the instant case, the petitioners had been concurrently found to have withdrawn their claim without any reservation and further that for very cogent reasons the second application for withdrawal of the suit containing the condition to approach the Court if they were not obliged was consistently found to be a spurious addition to the record. On this hypothesis, the learned Trial Judge found and it was duly affirmed by the Appellate Court that the petitions were devoid of any fresh cause of action. The learned Judge in Chamber had rightly not entertained the revision petition. The concurrent findings arrived at by the Courts below are based on correct appraisal and interpretation of oral as well as documentary evidence. Considering the entire evidence in its proper context we are convinced that it sustains the concurrent findings rendered by the two Courts below and the learned Single Judge in the High Court on the propositions involved which are primarily of facts.

7. No case is, therefore, made out for interference of this Court. This petition is, accordingly, dismissed.

A.A./B-290/S Petition dismissed.