PLJ 2024 Peshawar (Note) 66
[Mingora Bench (Dar-ul-Qaza) Swat]
Present: Shahid Khan, J.
versus
BEHRAM KHAN and 6 others--Respondents
W.P. No. 909-M of 2023 (with Interim Relief), decided on 2.11.2023.
Civil Procedure Code, 1908 (V of 1908)--
----O.VII, R. 11--Specific Relief Act, (I of 1877), Ss. 39 & 54--Constitution of Pakistan, 1973, Art. 199--Application for rejection of plaint--dismissed--Perpetual injunction--Suit for cancellation of documents and perpetual injunction--Change in parentage--Negative declaration--Legal character--Time-barred--Unexplained--delay--Maintainability--Non-joinder of necessary party--Respondent No. 1 had actually sought negative declaration and cancellation of documents with respect to parentage of petitioner--Petitioner had obtained his domicile certificate & MNIC for first time in year 2000 and CNIC in year 2003, whereas, Respondent No. 1 has challenged parentage of petitioner through subject suit in year 2021 after lapse of about 21 years, which delay had not been plausible explained by respondent for any good reason--The Respondent No. 1 had two/three sisters from same parents but he had made party to suit only his one sister, in array of defendants for about 9/10 months unexplained delay after institution of subject suit--The suit of Respondent No. 1 was barred by time, even suit was not maintainable for seeking negative relief u/S. 42 of Specific Relief Act, 1877, as well as for non-joinder & misjoinder of necessary & proper party--Petition allowed. [Para 6, 9 & 10 ] A, B, D & E
Specific Relief Act, 1877 (I of 1877)--
----S. 42--Declaration--A Court of law can make a declaration in a suit in favour of a person who is entitled to any legal character or to any right, as to any property, which another is denying. [Para 7] C
Mr. Aurangzeb, Advocate for Petitioner.
Mr. Zia-ur-Rehman, Advocate for Respondent No. 1.
Mr. Fawad Ahmad, legal representative of Respondents/NADRA.
Date of hearing: 2.11.2023.
Judgment
Sana Ali Khan, the petitioner herein, has invoked the constitutional jurisdiction of this Court under Art. 199 of the Constitution of Islamic Republic of Pakistan, 1973, with the following prayer:
“In the light of above and so many other grounds to be advanced at the time of arguments, it is therefore humbly prayed that by accepting the instant writ petition, the impugned judgment/order dated 05.05.2023 passed by Respondent No. 6 in Civil Suit No. 116/1 Need of 2022 and judgment/decree dated 16.06.2023 passed by Respondent No. 7 be set aside and suit filed by Respondent No. 1 be rejected under Order 7 Rule 11 CPC without further proceedings.
Any other remedy, which is just, equitable and efficacious, in peculiar circumstances of the case, may also be graciously awarded to petitioner by exercising inherent jurisdiction.”
2. Facts in small compass of the subject petition are that on 25.11.2021, the plaintiff (“the Respondent No. 1”) approached to the learned trial Court of Senior Civil Judge/A’ala Illaqa Qazi, Malakand at Batkhela, through filing a civil suit No. 116/1(Neem) of 2022 against the Defendant No. 1 (“the petitioner”) & other defendants (“the Respondents No. 2 to 5”), sought therein perpetual/mandatory injunctions coupled with cancellation of documents of the petitioner, manifesting “Abdur Rehman and Mst. Rahema” in the columns of his parentage. The Respondent No. 1 averred in his plaint that he is the only real son of Abdur Rehman and Mst. Rahema and also having three sisters, Mst. Samara Bibi, Mst. Shamaila Bibi and Mst. Gul Andama, whereas, the petitioner through misrepresentation manifest himself in the column of his parentage as the son of Abdur Rehman and Mst. Rahema, in his National Identity Card and prayed for its cancellation.
3. The petitioner turned up before the learned trial Court and submitted his written statement, whereas, the official Respondents Nos. 2 to 4/NADRA have submitted their separate written statement along with supportive documents obtained from their official record. The petitioner, in his written statement, fully negated the stance of the Respondent No. 1 through various legal and factual objections in addition that the petitioner and the Respondent No. 1 also have another brother, namely, Din Muhammad, who has left the house in childhood due to the cruel behaviour of the Respondent No. 1.
4. On 03.02.2023, the official Respondents No. 2 to 4 submitted an application for rejection of the plaint under Order VII Rule 11, C.P.C, on certain grounds but mainly objected therein that the Respondent No. 1 cannot seek negative declaration under Section 42 of the Specific Relief Act, 1877, against the legal character of the petitioner in the light of verdict of the Apex Court, reported in PLD 2019 Supreme Court 449. The Respondent No. 1 contested the said application by submitting his written reply. The learned trial Court after hearing arguments of learned counsel for the parties, dismissed the same vide order dated 05.05.2023. The official Respondents No. 2 to 4 didn’t challenge the same in the upper forum, however, the petitioner, being aggrieved therefrom, approached to the learned revisional Court by filing a civil revision petition but the same was dismissed vide impugned judgment, dated 16.06.2023. It obliged the petitioner to knock the door of this Court through filing the subject writ petition.
5. Arguments heard and record gone through with the able assistance of learned counsel for the parties.
6. It is transparent from the floating facts surfaced on the face of record that the Respondent No. 1 has actually sought negative declaration and cancellation of documents with respect to parentage of the petitioner. He averred in the plaint that the petitioner is neither his brother nor has been born from his parents, namely, Abdur Rahman and Mst. Rehema. He challenged the NADRA record as to the parentage of the petitioner representing himself the son of Abdur Rahman and Mst. Rahema. The Respondent No. 1 showed himself as the only real son of Abdur Rahman and Mst. Rahema, whereas, he has three sisters, i.e., Mst. Samara Bibi, Mst. Shamaila Bibi and Mst. Gul Andama. Both, the parents of the Respondent No. 1 have already been died much earlier than filing the present suit. The record reflects that the petitioner has obtained his domicile certificate on 14.11.2000, manual National Identity Card (“MNIC”) on 22.11.2000, Computerized National Identity Card (“CNIC”) on 05.11.2003 lastly updated on 11.07.2019 and passport 16.08.2019. The NADRA family registration certificate available at page 44 of this petition manifests that the petitioner and Respondent No. 1 are inter-se real brothers, sons of Abdur Rahman and Mst. Rahima. Similarly, the family registration certificate of the petitioner also reflects the fathers’ name of the petitioner as “Abdur Rahman”. Admittedly, Abdur Rahman and Mst. Rahima have been died prior to the institution of the suit but none of them have ever objected on the parentage of the petitioner. Similarly, the petitioner has obtained his domicile certificate & MNIC for the first time in the year 2000 and CNIC in the year 2003, whereas, the Respondent No. 1 has challenged the parentage of the petitioner through the subject suit in the year 2021 after lapse of about 21 years, which delay has not been plausible explained by the respondent for any good reason.
7. Apart from the above, a Court of law can make a declaration in a suit in favour of a person who is entitled to any legal character or to any right, as to any property, which another is denying. A declaratory suit is filed under Section 42 of the Specific Relief Act, 1877, which provide as under:
‘42. Discretion of Court as to declaration of status or right.
Any person entitled to any legal character or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right and the Court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief:
Bar to such declaration. Provided that no Court shall make any such declaration where the plaintiff, being able to seek further relief that mere declaration of title omits to do so.
Explanation. A trustee of property is a ‘person interested to deny’ a title adverse to the title of some one who is not in existence, and for whom, if in existence, he would be a trustee.”
8. The petitioner has not denied either the legal character of the Respondent No. 1 or his right to any property but even then, the Respondent No. 1 has challenged the parentage of the petitioner and sought cancellation of his parentage documents so as to deprive the identity of the petitioner and not anything else. In this respect, the Apex Court, in the case of “Mst. Laila Qayyum v. Fawad Oayum and others”, reported as PLD 2019 Supreme Court 449, has held:
“16. Fawad sought to deprive Laila of her identity and of her inheritance. The Court cannot legally make the declarations the plaintiff seeks nor can it order the cancellation of the documents. The suit filed by Fawad cannot be decree. To keep such a suit pending only harasses the petitioner further and may deprive her of her inheritance. Already a lot of Court time has been taken up to attend to this frivolous suit. Therefore, we invoke our ancillary powers, granted to us under Article 187 of the Constitution, as it is necessary for doing complete justice, and exercising such powers dismiss the suit pending before the Senior Civil Judge Gulkada, Swat. We also award costs throughout, to be paid by the Respondent No. 1 to the petitioner.”
Similarly, in the case of “Munir Hussain and others vs Riffat Shamim and others”, reported as 2023 SCMR 6, the Apex Court has observed as follows:
“4. The learned Judge of the High Court had referred to a number of decisions including the decision in the case of Laila Qayyum v. Fawad Qayum (PLD 2019 Supreme Court 449) which had considered in detail the scope of a declaratory suit filed under Section 42 of the Specific Relief Act, 1877 and like in that case the paternity of another was denied by the plaintiffs. In other words, the plaintiffs (petitioner herein) through their suit sought a negative declaration. After considering the scope of the said section 42 and precedents this Court held in Laila Qayyum’s case that to challenge another’s paternity/legitimacy was not an assertion of one’s own legal character in terms of Section 42. However, a person whose legal character, including paternity, was being denied such person could file a suit to claim it, but the instance case is not such a case. In Laila Qayyum ‘s case the plaintiffs lacked legal character under Section 42 of the Specific Relief Act, 1877, and the same principle is attracted in this case.”
9. It is also important to note that admittedly, the Respondent No. 1 has two/three sisters from the same parents i.e., Abdur Rahman and Mst. Rahima but he has made party to the suit only his one sister, namely, Mst. Shamaila Bibi, in the array of defendants for about 9/10 months unexplained delay after institution of the subject suit, whereas, the other two sisters have not been made party to the suit either in the column of plaintiff or defendants without any plausible explanation on the record. Similarly, in para 2 of the plaint, the Respondent No. 1 has given the detail of his parents, namely. Abdur Rahman and Mst. Rahima, and their legal heirs, wherein, he showed himself as their only real son and two real daughters, namely, Mst. Samara Bibi & Mst. Shamaila Bibi. Later on, after the lapse of about 9/10 months, he introduced one Mst. Gul Andama as his third sister and her name was added on his request in the said para of the plaint vide Order No. 16 dated 08.09.2022.
10. In the above scenario, this Court is of the firm view that the suit of the Respondent No. 1 is barred by time, even the suit is not maintainable for seeking negative relief under Section 42 of the Specific Relief Act, 1877, as well as for non-joinder and misjoinder of necessary and proper party. As such, the subject petition is allowed, the orders/judgments of the learned two Courts below are set aside and consequently, the plaint of the Respondent No. 1/plaintiff is hereby rejected under Order VII Rule 11 of the C.P.C.
(J.K.) Petition allowed
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