Stereo. H C J D A 38.

JUDGMENT SHEET
LAHORE HIGH COURT LAHORE
JUDICIAL DEPARTMENT

W.P. No.50316 of 2023

Asmat Bibi Versus Addl. District Judge, etc.

JUDGMENT

Date of Hearing: 15.11.2023

Petitioner by: Mr. Nasir Abbas Zafar Malik,
Advocate.
Respondents No.3 to Ms. Rabia Bajwa, Advocate.
5 by:

Anwaar Hussain, J. This constitutional petition is directed

against judgment dated 06.07.2023, passed by the Additional District
Judge, Ferozewala, who proceeded to accept the appeal of respondents
No.3 to 5 and has upended the order dated 15.12.2022, passed by the
Civil Judge 1st Class, Ferozewala and the application of the petitioner,
under Order XXXIX Rules 1 & 2 of the Code of Civil Procedure, 1908
(“CPC”), filed alongwith her suit for declaration and cancellation of
the document as also recovery of possession and permanent injunction,
was dismissed.

2. By way of factual background, it has been noted that the

petitioner, deceased Muhammad Sharif [(predecessor-in-interest of
respondents No.3(a) to 3(f)], deceased Nazir Ahmad [(predecessor-in-
interest of respondents No.4(a) to 4(g)] and Manzoor Ali, were real
brothers and sister who were children of one Noor Din. For facility of
reference, predecessors of respondents No.3(a) to 3(f), 4(a) to 4(g) and
respondent No.5, are collectively referred as “the respondents”.

3. The dispute relates to part of total property, measuring 40-

Kanals, detail whereof is given in the headnote of the plaint of the suit
which was owned by Noor Din. Apart from the petitioner and the
respondents, Noor Din also had other children namely, Munawar Bibi,
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Zuhran Bibi and Bashiran Bibi. The petitioner instituted the suit laying
challenge to the oral gift mutation bearing No.86 dated 28.04.1984, in
favour of the respondents, on ground of fraud as a result of which the
petitioner was deprived from her share of inheritance in the property
left by her father, Noor Din.

4. Learned counsel for the petitioner submits that findings of the

Courts below are at variance and well-reasoned order of the Trial Court
has been upset by the Appellate Court below merely on the technical
ground that while laying challenge to the impugned oral mutation in
favour of her brothers (the respondents), the petitioner has not arrayed
other legal heirs of Noor Din in her suit, as defendants, which is not a
plausible ground for dismissing the application of the petitioner, under
Order XXXIX, Rules 1 & 2, CPC as said legal heirs of Noor Din are
neither necessary party nor any relief was claimed against them.

5. Conversely, learned counsel for the respondents submits that the

petitioner has failed to establish a prima facie case as she intentionally
has not arrayed her other siblings as defendants. Adds that the
respondents are in possession of the disputed property for the last 38-
years and nothing has been brought on record to establish as to when
the petitioner came to know about the sanctioning of impugned oral gift
mutation and whether the petitioner was ever given any share in the
produce (‫)حصہ بٹائی‬. Places reliance upon cases reported as “Mst.
Sheedan Begum and others v. Muhammad Usman Khan and others”
(2021 MLD 1937) and “Ashiq Muhammad and others v. Mst.
Suhagan” (2023 SCMR 1171) in support of her contentions.

6. Arguments heard. Record perused.

7. It is settled principle of law that in order to succeed in obtaining

temporary injunction in a case, a plaintiff has to establish co-existence
of three conditions/ingredients i.e., (i) prima facie case; (ii) possibility
of suffering irreparable loss if temporary injunction is declined; and
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W.P. No.50316 of 2023

(iii) that the balance of convenience leans in favour of the plaintiff. Of

the above referred three conditions, existence of prima facie case is
foundational and the other two conditions are considered only once the
plaintiff establishes a prima facie case in his favour. This assessment is
to be carried out by the learned Trial Court while examining the
pleadings of the parties. In plaint of her suit, the petitioner alleged
commission of fraud by stating that she had not transferred the disputed
property by way of oral gift to the respondents and when written
statement was filed, plea was taken that the share of the petitioner in
the property left by the father of the petitioner was purchased by the
respondents. Para No.5 of the written statement is reproduced
hereunder:
‫ک‬ ‫ک‬
‫ اس دح ت درس ےہ ہک ارایض دتموعہی زریع ےہ اور دماعمہیلع ےک ےضبق‬5 ‫ نمض ربمن‬-5"
‫ںیم ےہ۔ بایق نمض طلغ ےہ اس ےس ااکنر ےہ۔ دماع مہیلع وطبر امکل ارایض دتموعہی رپ اقضب ںیہ دمہیع و‬
-1984‫ومرہخ‬86‫درگیبااعئنےنارایضدتموعہییکاےنپاےنپہصحیکتمیقووصلرکےکااقتنلربمن‬
‫ک‬
‫ہٹپ‬/‫روبرواجمزارسفشیپوہرکدصتقیولیمکترکوابادماعمہیلعےنآجتیسکوکوکیئانمعفباہصح‬28-04
‫ےساقونینوطررپامکلواقضبآرےہںیہ۔بایقنمضطلغےہاسےس‬1984‫اداہنایکےہویکہکندماعمہیلع‬
"‫ااکنرےہ۔‬
(Emphasis supplied)

There is an apparent disconnect, in respect of the nature of the transfer

by the petitioner in favour of the respondents, between the impugned
gift mutation in favour of the respondents and the stance taken by the
respondents in written statement that clearly establishes the existence
of prima facie case in favour of the petitioner as there was no
justification for the respondents for getting the impugned oral gift
mutation sanctioned in their favour instead of a sale mutation if the
petitioner received price of her share and sold the disputed property.
The petitioner being weaker segment of the society has been deprived
of her share in inheritance in the property left by her father. She will
certainly face inconvenience due to multiplicity of litigation if interim
relief is not granted restraining the respondents from further alienating
the disputed property and creating third party interest in respect thereof.
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This fact had rightly been appreciated by the learned Trial Court, vide
order dated 15.12.2022, operative part whereof is reproduced
hereunder:

“4…..In the instant case, plaintiff has called in question the

transaction whereby she has been deprived of her rights to
property and onus is shifted upon defendants to prove
genuineness of transaction through cogent and convincing
evidence. Moreover, it is settled practice in our society
that females are deprived of their rights to property by
their family as well as close male relatives. Perusal of
mutation shows that the same has been sanctioned on basis
of oral gift whereas defendants in their written statement
took stance that they purchased property after payment of
its value. In cases of gift, no value is to be paid.
Transaction of sale and gift are totally different to each
other. Thus stance taken by defendants is ambiguous and
against revenue record. Hence plaintiff has proved her
prima facie case. If temporary injunction is not granted
and property is further alienated, plaintiff would face
irreparable loss and it would give birth of future
complications and multiplicity of litigation.”

(Emphasis provided)
8. On the contrary, the Appellate Court below has dismissed the
application of the petitioner, under Order XXXIX Rules 1 & 2, CPC on
the ground, that petitioner has not arrayed her other siblings in the suit
as defendants, which is alien to the ingredients required for grant or
refusal of the temporary injunction. The said siblings, at the most, were
proper parties and non-impleading thereof is an irregularity, which is
not a non-curable defect. Needless to mention that the general rule is
that the plaintiff in a suit is dominus litis and may choose the person
against whom he wishes to litigate and cannot be forced to sue a person
against whom he does not seek any relief. Even otherwise, the learned
Appellate Court below lost the sight of settled legal position regarding
the distinction between the non-joinder who ought to have been joined
as a party and the non-joinder of a person whose joinder is only a
matter of convenience or expediency, as is the position in the instant
case where the petitioner is not claiming any right against her siblings
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W.P. No.50316 of 2023

who have not been arrayed as the defendants, since the disputed
property, forming part of the inheritance share of the petitioner in the
property left by her father, is being claimed by the respondents and not
the said other siblings of the petitioner. Judgments relied upon by the
respondents’ side, having been considered, are found distinguishable,
on account of facts as well as legal question involved.

9. In view of the above discussion, this constitutional petition is

allowed and the impugned judgment of Appellate Court below is set
aside and the order passed by the Trial Court is upheld. No order as to
costs. Before parting with, it is also made clear that the observations
and findings in this judgment are tentative in nature and made for
deciding the application of the petitioner for grant of interim injunction,
only. The learned Trial Court shall not be prejudiced by the said
observations while finally deciding the suit of the petitioner.

(ANWAAR HUSSAIN)
JUDGE

Approved for reporting

Judge
Maqsood