Law: Civil Procedure Code (1908)

Section: Order XXXIX Rules 1, 2

  ORDER SHEET                                   Arbab Muhammad Tahir, J.-  This Regular First Appeal is directed against judgment and decree, dated 13.10.2021, passed by the learned Civil Judge 1st Class (West), Islamabad, whereby the suit of the appellant/plaintiffs seeking declaration and mandatory injunction was dismissed.    Succinctly, the facts are that the appellant/plaintiffs are the real brothers of Liaquat Ali (hereinafter the “Deceased”). The Deceased had passed away on 12.09.2020 leaving behind Bilqees Bibi (widow - since died) and Shamas Hussain (son - alive). As per the available record Shamas Hussain was born on 07.04.1986. On 22.01.2021, the appellant/plaintiffs/real brothers of the Deceased instituted a suit seeking declaration that Shamas Hussain is the adopted son of the Deceased. It was further prayed in the suit that appellant/plaintiffs i.e. Shoukat ali, Mushtaq Ali, Ishtiaq Ali and Razia who are real brothers and sister of the Deceased and they be declared as the legal heirs accordingly. It was alleged in the suit that the name of the real father of Shamas Hussain is Abdul Sattar. Summonses were served on the respondents/defendants. Respondent No.1 and 2 contested the suit by filing written statements. The learned trial court dismissed the application under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure, 1908 (hereinafter the “CPC”) vide order, dated 30.07.2021, which was assailed in appeal. The learned appellate Court disposed-of the said appeal with the consent of the parties and framed the following preliminary issues with the direction to the trial court to decide the same at the first instance.-   Whether the suit is barred in view of case law reported as “Mst. Laila Qayyum vs Fawad Qayyum” PLD 2019 SC 449? What should the order be?     The learned trial court, therefore, directed both the parties to produce their respective documents relied upon. In response the appellant/plaintiffs produced a document issued by the revenue authorities…