ORDER SHEET
Suit No. 1512 of 2009
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DATE ORDER WITH SIGNATURE OF JUDGE
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Date of hearing: 19.06.2012
Mr. Raja Qasit Nawaz Advocate for the plaintiffs
Mr. Saadat Yar Khan Advocate for the defendants
.x.x.x.x.x
Mohammad Shafi Siddiqui, J.- By consent of Advocates, the above three applications were taken up which were primarily filed for the appointment of Receiver, for seeking injunctive/restraining order against the defendant from selling, alienating, encumbering the properties highlighted therein and for inspection of movable and immovable properties identified therein respectively. By this order I would dispose off the above three applications as under:-
2. Brief facts of the case, as submitted, are that the plaintiffs and the defendants are the legal heirs of deceased parents namely Rafique Ahmed who expired on 31.5.2005 and mother who expired on 08.9.1992. Per learned Counsel the deceased left one immovable property which is a residential property bearing No. 4D, 9/17, Nazimabad No.4, Karachi which is owned by the mother and 2 businesses i.e. M/s. Rafique Automobiles Work being carried on at shops No.1,2,3 & 4 , Fatima Jinnah School Nishter Road Garden West, Karachi and M/s. Rafique Automotive Products, Chilla Ram Compound Nishter Road, Garden West, Karachi. Per learned Counsel both the businesses were carried on at rented premises which were acquired on Pugree basis and hence per learned Counsel comes under their inheritance. Apart from the plaintiffs and defendants there are other legal heirs of the deceased father, which have been shown in para-1 of the plaint and which are as under:-
i) Mst. Nasreen Begum Wife
ii) Rasheed Ahmed Son
iii) Moiz Ahmed Son
iv) Muzamil Rafique Son
v) Ghazala Babuddin Daughter
vi) Mobin Rafique Son
vii) Naghma Naeem Daughter
viii) Muhammad Ahmed Son
3. It is pertinent to point out that deceased father namely Rafique Ahmed was married twice. It is submitted by the learned Counsel for the plaintiff that their deceased father was sole proprietor of the businesses ibid and after his death in 2005 it was taken-over by the defendant Nos. 1 to 3. It is submitted by the learned Counsel that though they are on visiting terms and on several occasions during their visit they requested for distribution of the property amongst the legal heirs in accordance with law but the defendants prolonged the settlement and avoided though they never refused the distribution of the assets and the profit of the businesses. Per learned Counsel since the death of their father the defendants are enjoying the profit of the businesses of the deceased father and the income is being utilized by the defendants to the exclusion of the plaintiffs. The learned Counsel submitted that on 17.10.2008 they have issued a legal notice which remain unreplied.
4. He further submitted that in terms of Form-E available at page-21 of rejoinder the plaintiffs were shown as partners and accordingly the tax returns were submitted. It is submitted that the return for the year 2004 at page-27 of the rejoinder was also signed by their deceased father.
5. In terms of the return for the year 2005 the status is defined as (AOP) “Association of Person” and the return for the said year was signed by Moiz Ahmed who is one of the defendants whereas at page-33 all five brothers were shown as equal partners. Similarly in returns for the year 2006 which is jointly signed by one Mozamil “plaintiff No.2’’ and Moiz Ahmed who is defendant No.3, all the five brothers were shown as partners with equal share. At page -47 of this rejoinder the tax returns for the year 2007 also shows inclusion of five brothers as partners which is also signed by the defendant No.3. Document at page-51 is in respect of the return for the year 2008 which reflects the partnership of five brothers i.e. plaintiffs and the defendants and lastly at page-57 the tax return for the year 2009 also shows the partnership of five brothers duly signed by the defendant No.3.
6. Learned Counsel for the plaintiff submitted that despite this evidence and the legal notice issued in the year 2008 whereafter the tax returns were continued to be deposited, no accounts were provided by them. He concedes that though there was no written Partnership Deed executed, however, after the death of their father they all became partners in the businesses with equal shares and the immovable residential property devolved in them.
7. In reply the learned Counsel for the defendant submitted that earlier by an order dated 29.11.2010 the applications with the same prayer were dismissed for non-prosecution. He submitted that again the subject applications with same prayers have been moved which are not maintainable under the law as no application for restoration of the dismissed applications was filed. Learned Counsel in support of his contentions has relied upon the cases reported in PLJ 1978 Karachi 55 and PLD 1981 SC 513. Learned Counsel further submitted that the plaintiff has failed to bring on record the requisite documents and the filing of the documents along with the rejoinder is not in accordance with law as he is unable to reply and rebut those documents. In support of these contentions the learned Counsel for the defendants has relied upon the case reported as PLD 2005 Karachi 01. Learned Counsel further submitted that their mother expired in the year 1992 and since then the plaintiffs have not made any effort to claim their rights arising out of their claim of inheritance and since the period of limitation is 12 years, the suit is barred by limitation. Learned Counsel further submitted that the proper parties which may be entitled for their respective shares or termed as beneficiaries of the assets of deceased parents have not been arrayed as defendants and that they have failed to evaluate their shares.
8. Learned Counsel further submitted that since 1992 they have not filed any suit until 2009 and as such the suit is barred under Article 127 of the Limitation Act and there is no explanation for this inordinate delay. Learned Counsel has relied upon the cases reported in 2007 MLD 54 relevant page 61 and 1981 CLC 503 Karachi relevant page 511. Learned Counsel further submitted that the plaintiff is claiming his rights on alleged pugree which does not form part of the assets and has relied upon the case reported as 1992 CLC Karachi 2504 and submits that definition of tenant is provided in Section 2(j) of the Sindh Rented Premises Ordinance, 1979 which does not validate Pugri/goodwill. Learned Counsel further submitted that in the entire rejoinder they have not produced any documents, which show that the machineries were imported on the basis of RBOD scheme. It is submitted by the learned Counsel that they have filed a list of documents along with the written statement out of which one pertains to a Partnership Deed in respect of Galaxy Mirror Glass Industry and Mobin Rafique son of Rafique Ahmed (plaintiff No.1), Moiz Rafique son of Rafique Ahmed (defendant No.3) and Shaikh Abdul Qayoom son of Shaikh Abdul Ghani retired from the business of partnership of M/s. Galaxy Mirror Glass Industry and the partnership was continued between Muhammad Mozamil and Shahida Nasreen. He submitted that it is on this account that the Oral Gift in respect of Rafiq Automotive Works was executed. It is submitted that the said oral gift was executed on 19.4.2003 by their deceased father Raifque Ahmed in favour of Muhammad Ahmed who is the defendant No.2 and on 18.4.2003 a Partnership Deed was executed between Rasheed Ahmed, Moiz Ahmed and Muhammad Ahmed and it was shown that Muhammad Ahmed was the proprietor of M/s. Rafique Automobiles Works.
9. In rebuttal the learned Counsel for the plaintiff submitted that as far as the objection of filing of fresh applications is concerned Rule 129 of the Sindh Chief Court Rules provides room for filing fresh applications under the circumstances. Learned Counsel further submitted that as far as the business of glass industry is concerned, this suit has not been filed in respect of the same. He further submitted that since it is a suit for administration, therefore, no limitation would run and the plaintiffs have not hidden any legal heirs. In fact they have been disclosed in para-1 of the plaint though they have not been arrayed and at most it could be termed as drafting error. Learned Counsel has relied upon the cases reported as PLD 1983 Karachi 387, 1977 SCMR 220, PLD 1989 Karachi 350, PLD 1990 Karachi 375 and 1988 CLC 1567 relevant 1573. 2007 SCMR 376.
10. I have heard the arguments and perused the record. Before I dilate upon the arguments and the controversies, it is beneficial to reproduce the prayers in the applications:
i) CMA No.5523/2012:- ….to pass an order and appoint Nazir of this Hon’ble Court as receiver of the properties (details mentioned in affidavit) till the disposal of instant suit as there is serious apprehension of disposal of the suit properties at the hands of defendants.
ii) CMA No.5181/2012:- ……to restrain the defendants and/or any other person or persons inclusive of employees, subordinates, agents, associates, whosoever claiming through or under the defendants from transferring, selling, alienating, encumbering and creating any third party interest over the suit properties and businesses properties and businesses viz (1) Residential property bearing House No.4D, 9/17, Nazimabad No.4, Karachi, (ii) M/s Rafique Automobiles Works (commercial property) situated at Shops No.1, 2, 3 and 4 Fatima Jinnah School, Nishtar Road, Karachi, and (iii) M/s Rafique Automotive Products (Commercial property) and also submit their accounts pending decision of these proceedings.
iii) CMA No.5182/2012:- ……to order inspection of the (1) Residential property bearing House No.4D, 9/17, Nazimabad No.4, Karachi, (ii) M/s Rafique Automobiles Works (commercial property) situated at Shops No.1, 2, 3 and 4 Fatima Jinnah School, Nishtar Road, Karachi, with machinery, plant and equipments by the Nazir or Deputy Nazir of this Hon’ble Court to protect and safeguard the interest and rights of the plaintiffs as there is strong apprehension that defendants may create third party interest as earlier despite interim injunction defendants have secretly sold old Chellaram Compound property hence in order to protect and safeguard the interest of the plaintiff it is essential that inspection be carried out in the interest of justice.”
11. It appears from the perusal of the plaint along with its prayer clauses that this is an administrative suit filed by the plaintiff in respect of the assets (movable and immovable) left by the deceased father and mother.
12. First, I would take up the legal objections/issues which have been raised by the learned Counsel for the defendants which includes
(i) the earlier applications with same prayers were dismissed,
(ii) that the claim/suit is time barred,
(iii) that the necessary parties have not been arrayed and
(iv) the plaintiff has not brought documents on record as prescribed and required under the law.
13. As far as the first submission is concerned that the plaintiffs have earlier filed the applications with the same prayer which were dismissed for non-prosecution and as such not entitled to file the fresh applications, I am not satisfied with their contention as firstly the learned Counsel has not cited any law which could prevent plaintiff from filing second application and secondly the said applications were not disposed of or dismissed on merits as such the principle of resjudicata would not apply. The dismissal of the application or suit or any other litigation or proceedings for default or for non-prosecution cannot operate as resjudicata and it is for this reason that the fresh suit/application was held to be competent in case where the earlier is dismissed for non-prosecution or default and not disposed of on merits. The principle and the question of resjudicata would apply only if the previous lis/application or proceedings had been disposed of or decided on merits and which had directly or substantially decided the controversy between the parties. The law cited by learned counsel as PLJ 1978 Karachi 55 and PLD 1981 SC 513 are not applicable as it does not cover the issue in hand. The aforesaid judgment reported as PLD 1978 Karachi 55 deals with the restoration of an application and it does not touch the issue of filing of a fresh and new application. Similarly the case cited as PLD 1981 SC 513 also deals with the issue of restoration and consequently both are not applicable to the issue in hand and does not come in rescuing the defendants in the circumstances of the case. Hence in my view the said objection is hardly available to the defendant. Learned Counsel submitted that when fresh applications were filed it did not disclose that earlier applications were dismissed for non-prosecution, hence the filing of fresh applications were malafide. My findings are that it could only be deemed to be an act of malafide if the law required that fresh application would not be maintainable in case when earlier application was dismissed even for non-prosecution which is not the intention of law makers hence the intention of malafide is not attributable to the plaintiff.
14. As regards second objection learned Counsel submitted that the mother expired in the year 1992 and since then until filing of the suit the plaintiff had not made any effort and as such the suit is barred by time. As I have observed that this is suit for administration and the inclusion of names of the legal heirs in the assets left by the deceased is in fact effected on the day of their sad demise, hence the contention that they have not agitated for their rights is not the ground available. More importantly the rights of the plaintiffs were not denied until filing of this suit where the written statement was filed and the plaintiff came to know about their stand and the Gift Deed was filed along with the list of documents. The Article 127 which is referred by the learned counsel for the defendant does not apply to a suit filed by members of a Muslim family for recovery of shares in immovable property of a deceased Muslim in possession of the defendant. If any reference is needed in support of the above finding/observation, AIR 1963 Patna 108 can be looked in. The possession of one member of a joint family property is the possession of all members unless the possession is declared by the occupant to be hostile title to the knowledge of other co-sharers who are entitled for such inheritance, which is not the case here. Article 127 of the Limitation Act in my view does not come in the way of the plaintiff in filing of the suit as such the suit is not hit by Article 127 of the Limitation Act. The article also suggests that the period of limitation begins to run when the exclusion become known to the plaintiff. The judgement relied upon are not applicable to the case in hand. The judgment cited in 2007 MLD 54 does not touch the scope of the administrative suit filed by a member of Muslim family for recovery of shares of immovable property of a deceased Muslim, hence the case law reported is distinguishable. The other judgment which is reported as 1991 CLC 503, is in respect of application of Article 127 of the Limitation Act, however this is in respect of property of Parsi and not a Muslim, hence the case law is also distinguishable on this score alone.
15. As regards the third legal objection for impleading proper and necessary parties, although they have not been arrayed but their names have been mentioned in para-1 of the plaint. In my view this error or defect is curable as the necessary and proper parties can be added at any stage of the proceedings, hence the suit cannot be shut of on account of the assertion that the necessary and proper parties/other legal heirs have not been arrayed though mentioned in the plaint. This question of adding necessary parties, however, would be considered subsequently at an appropriate stage. Since in a case of administration/partition impleading other legal heirs as parties, such powers can be exercised to enable the Court to factually and completely adjudicate upon and settle all questions involved in the suit and in the circumstances, we direct the plaintiff to take steps in impleading all those parties/legal heirs who are necessary and proper. Same view was also observed in a case reported in 1981 CLC 409.
16. The next legal question that has been raised by the learned Counsel for the defendant is that the documents which have been submitted by the learned Counsel along with the rejoinder is not the proper procedure as prescribed in the law, hence the documents annexed with the rejoinder should not be relied upon or considered in support of the applications referred above. Prima facie, filing of the documents along with rejoinder does not violate any law. However, in case a new case is made out at the rejoinder stage with the support of additional documents then certainly one can agitate. However, this is not the case of the defendant that new case is set up. All he submitted that such documents cannot be filed with the rejoinder as according to him he is unable to rebut and reply the rejoinder. I am afraid this is not the correct position as under the Sindh Chief Court Rules a permission can always be obtained for filing sur-rejoinder against the rejoinder-affidavit which has not been done by the defendants. Learned Counsel for defendant has even not filed an application to score off the documents which have been filed along with the rejoinder. The case law relied upon by the learned Counsel i.e. PLD 2005 Karachi 01 is not attracted as in the said case the evidence was being recorded and no list of documents was filed and as such it was held that the parties cannot be taken up by surprise which is certainly not the case here.
17. Next I would deal with the merits of the case. In order to resolve the controversy on merits I have gone through the contents of plaint as well as affidavits in support of the respective applications. It is the case made out in the plaint as well as in the affidavits filed in support of their applications that the immovable property bearing House No.4-D, 9/17, Nazimabad No.4, Karachi, is exclusively owned by the deceased mother who expired in the year 1992. As far as this immovable property is concerned, the defendants in their written statement in para-1 have categorically admitted as under:-
“That the contents of para 1 being misleading and false hence denied. The residential property bearing No 4D, 9/17, Nazimabad No.4, Karachi was being owned by Mst. Nasreen Begum the first wife of Rafiq Ahmed (late) and the mother of the parties to the instant suit hence, the question of inheritance to the second wife does not arise. It was in respect of the deceased mother’s will that non of the legal heirs had ever claimed the share for over 14 years, in the above mentioned house except the Plaintiffs who have now turned dishonest and greedy. It was for the this sole reason that the Plaintiffs had not applied for the Letter of administration of the house left by the deceased mother. Hence, the suit in respect of the house is not maintainable and liable to be returned on this score. In lust for meagre and petty amount, the Plaintiffs have disregarded the will of the deceased mother. However, if the Plaintiffs are ready and willing to take special oath to deny the above facts, all other remaining heirs have agreed to pool up amount equivalent to the proportionate share for the Plaintiffs and would pay their share as determined by this Hon’ble Court, without stepping further in the matter..”
18. There is no denial to the effect that the immovable property was owned by the deceased mother who expired in the year 1992. Though the plaintiffs were not residing in the said house but it is deemed to be devolved amongst all legal heirs of the deceased mother and the possession of one defendant is deemed to be the possession of all legal heirs. Apart from this statement there is no other categorical denial to the effect that the property was owned by the deceased mother. As far as this immovable property is concerned there is not much in controversy and I declare that the property is liable to be devolved amongst all the legal heirs of deceased mother being inherited by them and accordingly I pass the preliminary decree in respect of this immovable property bearing House No.4-D, 9/17, Nazimabad No.4, Karachi, under Order XX rule 13 CPC.
19. The most controversial issue is of course two business concerns being run under the name (i) M/s Rafique Automobiles Works and (ii) M/s Rafique Automotive Products. Both were being carried on at rented premises which per learned counsel for the plaintiffs were acquired on Pugree basis. I have also perused the affidavits which have been filed in support of the applications bearing CMA No.5523 and 5181 of 2012.
20. Before I give my findings with regard to disposal of such applications, I would like to discuss the situations and occasions when the grant of such relief is inevitable. Such situations include: (i) when it is just and convenient (ii) when it is essential to safeguard the interest of parties as well as the property which is the subject matter of the litigation (iii) when the property is in danger of being wasted or dissipated; (iv) where the partnership is dissolved and it is inevitable to determine and decide the rights of the partners to profits and accounts which are not known; (v) when it is just and equitable that the preservation of such property is to be maintained and (vi) Evidence has been placed on record to show strong apprehension of Peril to property.
21. The above are some of the salient features which have been recognized under the law to involve and invite receiver for its role.
22. It appears from the pleadings that the business apparently is being looked after by defendants No.1 and 3. It also appears from the perusal of the documents referred by the plaintiffs that the returns in respect of the business concern namely Rafique Automobiles Works were being filed initially by Rafique Ahmed as proprietor and subsequently after his demise, by defendant No.3 which were occasionally signed by plaintiff No.2 as well. The significant feature of these returns submitted under the signatures of defendant No.3 is that it discloses the names of the partners in equal share and this disclosure went up to 2009 i.e. even after the legal notice issued by the plaintiffs on 17.10.2008 in respect of their claim which is the subject matter of this suit. The last tax returns for the year 2009 was submitted on 20.10.2009 i.e. much after the said legal notice dated 17.10.2008. This tax returns for the year 2009 also discloses the name of five partners. As against this the contention of the defendant’s counsel was that the filing of the returns disclosing the names of the plaintiffs as co-partners does not mean the title in their favour.
23. I am afraid that as far as the applications in hand are concerned I am not inclined to decide the title of the business concerns conclusively. The question of gift and execution of Partnership Deed dated 19.4.2003 and 18.4.2003 respectively becomes highly doubtful considering the fact that son executed Partnership Deed before the alleged gift of business from his father. This is sufficient to cast thick clouds over the Gift Deed and Partnership Deed. I am only considering the arguments as well as documents which have been filed in support of the contentions to see whether a prima facie case existed or not. Although learned counsel for the plaintiffs was able to establish that the names of the plaintiffs as well as the defendants were there which prima facie establish the partnership in respect of at least one business concern if not both, as the business of Rafique Automotive Products, as submitted, is no more in existence and even the property where this business was being conducted was handed over to the landlord as the same was a rented premises. As far as the claim of Pugree is concerned I am afraid there is nothing on record to suggest or to establish that any amount was acquired by the defendants as Pugree or as change of receipt. However, the machineries which were lying there were shifted to the premises where business of M/s Rafique Automobile Works is being carried on and regarding which the learned counsel for plaintiff has moved for inspection and preparation of the inventory.
24. The reasons that I have highlighted the occasions and circumstances ibid where a Receiver could be appointed is because I have gone through the entire affidavit filed in support of the application for appointment of Receiver and in none of the paragraphs the apprehension that the property would be wasted or it is in danger of being wasted was shown. The affidavit discloses that both the business concerns were in control, custody and possession of the defendants No.1 to 3 since the death of father i.e. 2005. It is also mentioned that the profits and income received from these business concerns were being collected and consumed and retained by defendants No.1 to 3 without sharing the same with the plaintiffs or other legal heirs. It has also been disclosed that the defendants are trying to sell the property in question, of course they mean the movable property (as immovable property is on rent) and they urged that they are entitled for their share out of the business income. However, they have not disclosed a single ground whereby this Court could exercise and invoke powers to appoint Receiver. Admittedly the business was being run by defendants No.1, 2 and 3 since 2005 and for reasons mentioned above it is sufficient to hold that the solvent grounds which could attract the provisions of Order XL rule 1 CPC are not available though apparently it seems that the plaintiffs’ rights and interests as far as their share in the business is concerned is being denied but certainly this alone is not sufficient to invoke the powers under Order XL rule 1 CPC which is a very harsh remedy which is to be used sparingly. The plaintiffs here alleges only exclusion and not waste or malversation. Even apprehension of mismanagement or misappropriation alone would not be sufficient to call for appointment of a Receiver, which is not the case of the plaintiffs.
25. As far as the other application i.e. CMA No.5181/2012 is concerned, learned counsel for the plaintiffs have sought restraining orders in respect of residential immovable property and the business of M/s Rafique Automobile Works and for accounts of the business. It appears that the partners who are running the business either not maintaining the accounts or have not filed the same before the Court. I am also conscious of the fact that the disposal of this case may take time and this Court may consume much time to finally decide the rights and interest of the parties in the business and moveable properties. Considering the above circumstances, pleadings, supporting affidavits as well as arguments, I dispose of the above three applications in the following terms:-
A) To prepare the preliminary decree in respect House No.4-D, 9/17, Nazimabad No.4, Karachi, as observed in para 18 above.
B) The defendants are directed to submit monthly accounts of the business of Rafique Automobile Works which include sales, income, expense etc. with the Nazir of this Court on 5th of every month regularly.
C) In the preparation of the accounts and to ascertain the sale, income and expenses of the business concern i.e. M/s Rafique Automobile Works the plaintiffs are allowed to assist the Nazir to obtain a correct, true and undisputed statement of accounts of the business in question.
D) Nazir is also directed to inspect the premises where the business of M/s Rafique Automobile Works is being carried on regularly at least once in a month.
E) The Nazir is also directed to prepare the inventory of the machineries along with its make which are lying at the premises where the business of M/s Rafique Automobile Works is being carried on and the question of its ownership for the time being does not come in the way of preparation of the inventory.
F) Defendants shall deposit all income arising out of the business referred above, however, only defendants, for the time being are allowed to move application for the withdrawal of their share in terms of their entitlement under the law. Rest of the amount shall remain with the Nazir who will deposit the same in some profit bearing scheme every month as soon as he receives it or keep it in saving account.
G) In case the defendants avoid to deposit the income or avoid to provide true and correct account of the business, the Nazir may move to this Court where upon appropriate steps, which include appointment of receiver may be taken.
Dated: 26.6.2012. JUDGE