IN THE HIGH COURT OF SINDH AT KARACHI.
Date Order with signature of Judge
Order on CMA No.378 of 2008 (Application under order VII rule 11 CPC.
Date of hearing: 14.4.2009
Mr. Murtaza Hussain for the plaintiff.
Mr. Muhammad Ilyas Khan Tanoli for defendtns No.1 and 5.
-.-.-
Muharram G. Baloch.- Through this application the defendants No.1 and 5 seek rejection of plaint mainly on the ground that the suit is barred by provisions of Section 42 of the Specific Relief Act and the Partition Act as well. Another ground is that the suit is not maintainable in law and that the property for which the suit has been filed is exclusively owned by defendant No.1 and the present suit has been filed with ulterior motives. They have taken other pleas also.
The plaintiff through her attorney has filed counter-affidavit to the above application in which she has controverted the grounds of the defendant.
I have heard learned counsel for the parties. Learned counsel for the defendants No.1 and 5 submitted that the suit is barred by law and the same is not maintainable in its present form. He further submitted that prayers mentioned in the plaint are contrary to each other and the suit does not fall under section 9 or 20 CPC. Learned counsel for the defendants further submitted that the plaintiff claims inheritance of late Mr. Saleh Muhammad Khan who died at Karachi on 13.5.1994 and thus the suit is filed after lapse of 11 years. He further contended that the other defendants who are sons/daughters of the plaintiff have not supported the plaintiff at all. Learned counsel for the defendants further argued that various properties, which are subject matter of the suit, are situated out of territorial limits of this Court, therefore, the plaint on this account is liable to be rejected, as provided under section 9 of the CPC. Learned counsel in support of his arguments has relied upon following case law:-
Ch. Ghulam Rasool v. Mrs. Nusrat Rasool (PLD 2008 SC 146)
Bilqees Begum v. Registrar of Properties (PLD 2006 Karachi 617)
Chuttal Khan Chachar v. Mst. Shahida Rani (2009 CLC 324)
Amir Hussain Khokhar v. Mst. Nargis Khatoon 1996 CLC 1588 [Lahore]
As against, learned counsel for the plaintiff submitted that the application is misconceived and does not show any ingredient for the rejection of plaint excepting that the suit is barred under section 46 of the Specific Relief Act. According to him the suit is for declaration, administration, rendition of the accounts, cancellation and permanent injunction, therefore, the same is within the jurisdiction of this Court. He further submitted that when the suit for the administration is filed it is always filed in the Court where the predecessor in interest of the parties died and, according to him, the deceased Saleh Muhammad Khan was ordinarily and permanently residing at Karachi who died on 13.5.1994. He further submitted that properties left by deceased Saleh Muhammad Khan, as shown in Para 2 of the plaint at Sr. No.1, b, c, d, e, f, j are situated at Karachi, the property shown at Sr. No.2(k) is PLS Account No.01613-9, Muslim Commercial Bank Ltd., Sindh Social Security Branch near NEEPA Chowrangi, Gulshan-e-Iqbal Karachi. However, he submitted that the properties shown at Sr. No.2(g), (h) and (i) are situated at Abotabad and Islamabad respectively. According to him the provisions of Section 9 or 20 of C.P.C. are very much applicable to the facts of the case and as pleaded by the learned counsel for the defendants that the suit is barred under both these provisions is misconceived. In support of his contentions he has placed reliance on the following cases:-
Cotecna Inspector SA v. Ismail & Co. (2001 CLC 899)
Jewan v. Federation of Pakistan (1998 CLC 1028)
Mst. Sharifan Bibi v. Abdur Rauf Khan (1992 SCMR 1199)
Nadeem-ud-Din Khan v. Ch. Muhammad Akbar (1994 SCMR 826)
Fatima Moeen v. Additional District Judge, Sheikhupura (1992 CLC 1924)
Ahmad Ali v. Haji Usman Ghani (1992 CLC 1480)
I have considered the arguments of both the learned counsel for the parties. It is well settled law that while deciding the application for rejection of the plaint the statement in the plaint is to be looked into. According to the statement of the plaint the plaintiff has claimed the properties mentioned in Para 2 of the plaint. Out of these the major portion of these properties are situated at Karachi, including the account of the deceased Saleh Muhammad Khan and only three properties shown at Sr. No.2(g), (h) and (i) are outside Karachi i.e. situated at Abotabad and Islamabad respectively. Section 9, though speaks about the territorial jurisdiction in respect of where the property is situated, but since the suit is also for administration, therefore, section 9 shall be inapplicable to the facts of the present case, for considering the application under order 7 rule 11 CPC. As regards section 20 of the CPC the same is in respect of the suits to be instituted where defendants reside or cause of action arose. In the present suit all the defendants are residing at Karachi and the plaint discloses that the cause of auction accrued to her at Karachi on 13.5.1994 when the deceased father expired at Karachi leaving behind the plaintiff and the defendants being legal heirs.
In view of the above legal position that the statement of the plaint is to be looked into while deciding the application under order VII rule 11 CPC, I am of the considered view that according to the statement of the plaint the suit apparently is not barred, as agitated by the defendants. Consequently, the application in hand is dismissed with no orders as to costs.