Order Sheet
IN THE HIGH COURT OF SINDH KARACHI
Suit No. 1373 of 2012
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Date |
Order with signature of Judge |
Mr. Mobarak Ahmad, advocate for the plaintiff
along with the plaintiff Amir Karim.
M/S Abdul Wahid and Muhammad Sajjad Abbasi, advocates for
defendant No.1 along with defendant No.1 Muhammad Asif.
Mr. Daniel Bakhsh, advocate for defendant No.11.
Date of hearing : 25.04.2014.
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ORDER ON C.M.A. No. 2199 / 2014
NADEEM AKHTAR, J. – This application has been filed by defendant No.1 under Order VII Rule 11 CPC for rejection of the plaint on the grounds that the Suit is barred by time, the plaintiff has no cause of action against defendant No.1, and the Suit is barred under Section 42 of the Specific Relief Act, 1877.
2. The Suit has been filed by the plaintiff against the defendants for declaration, cancellation, administration, rendition of accounts and permanent injunction. The plaintiff and defendants 1 to 10 are real brothers and sisters, and are the legal heirs of their late father Haji Abdul Karim (‘the deceased’) who passed away in Karachi on 06.07.2007. The plaintiff has prayed for a declaration that House No.146, Block-A, Sindhi Muslim Cooperative Housing Society, Karachi (‘the house’), was owned by the deceased, and after his demise, it has been inherited by all his legal heirs according to their respective shares as per Shariah ; for a declaration that the transfer / mutation of the house by defendant No.11 Society in the name of defendant No.1 is collusive, fraudulent and void, and its purported change from residential to commercial use is illegal ; for cancellation of the said transfer mutation in favour of defendant No.1 ; for a declaration that half portion of property No.301, Garden West, Karachi, and the share in property No.RB-6, 25/26, Ram Bagh, Karachi, were purchased by the deceased in the name of defendant No.1 as benami ; for taking accounts of all such profits and other amounts which have been earned by defendant No.1 from the above mentioned properties of the deceased to the exclusion of the other legal heirs ; for administration of all the said properties left by the deceased, and for distribution thereof amongst all the legal heirs ; and, for permanent injunction restraining the defendants from creating third party interest in any of the said properties.
3. The learned counsel for defendant No.1, contended that the house was purchased by defendant No.1 from the previous owner Abdul Khalique through an agreement of sale, whereafter it was transferred and mutated in his name on 07.02.1981 by the defendant No.11 Society. Regarding the other two properties, he contended that the share in property No.RB-6, 25/26, Ram Bagh, Karachi, was transferred in the name of defendant No.1 on 04.10.1990 ; whereas, property No.301, Garden West, Karachi, was conveyed in his favour through a registered conveyance deed dated 05.12.1991. He submitted that this Suit, having been filed on 02.10.2012 in respect of administration and the alleged shares of the other legal heirs in the aforesaid properties, is miserably barred by time. He further submitted that the plaintiff has no legal character or right in respect of any of the said properties owned by defendant No.1, therefore, the Suit is also hit by Section 42 of the Specific Relief Act, 1877. In the end, the learned counsel submitted that in view of the submissions made by him, no cause of action has accrued to the plaintiff for filing this Suit. It was prayed by him that the plaint be rejected in view of the above grounds urged by him.
4. Mr. Mobarak Ahmad, learned counsel for the plaintiff, vehemently opposed the present application for rejection of the plaint. He contended that the house was purchased by the deceased through an agreement of sale dated 05.10.1978 from the previous owner Abdul Khalique, who executed a registered irrevocable General Power of Attorney in respect of the house in favour of the plaintiff, and on the basis of the said irrevocable General Power of Attorney, the plaintiff executed a registered sale deed in favour of the deceased on 14.06.1997. My attention was specifically drawn by the learned counsel to all the aforesaid documents pertaining to the house ; namely, agreement of sale dated 05.10.1978 in favour of the deceased, registered irrevocable General Power of Attorney in favour of the plaintiff, and the registered sale deed in favour of the deceased, which were duly witnessed by defendant No.1. He submitted that, being a witness of the agreement of sale dated 05.10.1978, defendant No.1 was fully aware of the fact from the date of the agreement that the deceased was the sole and absolute owner of the house. He pointed out that defendant No.1 himself has been showing the house as the property of the deceased in wealth tax returns. He further submitted that as against the registered sale deed in favour of the deceased, defendant No.1 has no document of title in his favour, and even the alleged agreement between the previous owner and defendant No.1 relied upon by defendant No.1, has not been filed by him. It was urged that the alleged transfer of the house in favour of defendant No.1 by the defendant No.11 Society in the absence of a registered document, is malafide, collusive and void. In support of his submissions, the learned counsel relied upon Ghulam Ali and 2 others V/S Mst. Ghulam Sarwar Naqvi, PLD 1990 Supreme Court 01. He contended that the deceased passed away at the house, which was owned exclusively by him at the time of his death, and after his death, the house devolved upon all his legal heirs as per their respective shares according to Shariah ; however, defendant No.1 ousted all the legal heirs from the house one by one in order to usurp the same. He further contended that the alleged transfer of the house in his favour was kept completely secret by defendant No.1 from all the legal heirs of the deceased, and this fact came to the knowledge of the plaintiff for the first time in April / May 2012 through the letters of the defendant No.11 Society issued in response to the legal notices issued by the plaintiff. It was urged that the Suit is not barred by limitation in view of the above.
5. Regarding the other two properties, learned counsel for the plaintiff contended that 50% share in property No.301, Garden West, Karachi, and 1/6th share in property No.RB-6, 25/26, Ram Bagh, Karachi, were purchased by the deceased in the name of defendant No.1 as benami, as the entire sale consideration thereof was paid by the deceased from his own resources. He further contended that the said shares purchased by the deceased in the above two properties are actually inherited by all the legal heirs of the deceased as per their entitlements. In the end, the learned counsel submitted that the properties left by the deceased need to be administered under the supervision of this Court, and the shares of all the legal heirs of the deceased are to be distributed to them as per their entitlements.
6. Mr. K. B. Bhutto, learned counsel for defendants 2, 3, 4, 6 and 9, adopted the arguments advanced by the learned counsel for the plaintiff, and reiterated the contents of the written statement of the said defendants. He reiterated that after the death of the deceased, defendant No.1 took complete control over and possession of the house by forcing out the plaintiff therefrom and by preventing defendants 2 to 10 from entering therein ; defendants 2, 3, 4, 6 and 9 also came to know about the transfer of the house in favour of defendant No.1 when they verified the letters of the defendant No.11 Society received by the plaintiff ; the purported transfer in favour of defendant No.1 is collusive and fraudulent ; the alleged ownership of defendant No.1 is disputed by all the legal heirs as all of them have been deprived by defendant No.1 of their legitimate shares in the properties inherited by them from the deceased ; and, defendant No.1 is liable to pay mesne profits to the said defendants since the year 2007 when the deceased passed away.
7. Rebutting the submissions made by the learned counsel for the plaintiff and defendants 2, 3, 4, 6 and 9, learned counsel for defendant No.1 referred to the Memorandum of Settlement dated December 1995 arrived at between the deceased, his wife and all their children, a copy whereof has been filed by the plaintiff along with the plaint. He contended that through the said Memorandum, various properties and businesses were distributed by the deceased and his wife amongst their children, that is, the plaintiff and defendants 1 to 10, but the house is not mentioned therein. He further contended that the house was not the part of the estate left by the deceased, but was purchased by defendant No.1 through an agreement and was transferred in his name by the defendant No.11 Society on the basis of the said agreement as there was no registered lease in respect thereof.
8. In order to appreciate the submissions made by the learned counsel for the parties, and to ascertain whether the plaint is liable to be rejected or not, the contents of the plaint and the averments and allegations made therein were carefully examined by me. A bare perusal of the plaint shows that the plaintiff has specifically pleaded therein that the house was purchased by the deceased from the previous owner Abdul Khalique through an agreement of sale dated 05.10.1978 in consideration of Rs.450,000.00 ; after receiving the agreed sale consideration, the said previous owner executed an irrevocable General Power of Attorney in respect of the house in favour of the plaintiff, which was duly registered on 06.06.1990 ; thereafter, on the basis of the said irrevocable General Power of Attorney, the plaintiff executed a sale deed in favour of the deceased, which was duly registered on 14.06.1997 ; all the above documents were witnessed by none other than defendant No.1 ; and, defendant No.1 has been showing the house as the property of the deceased in the wealth tax returns. The plaintiff has specifically alleged that the transfer of the house in favour of defendant No.1 by the defendant No.11 Society in the absence of a registered document, is malafide, collusive and void ; the deceased passed away at the house, whereafter defendant No.1 ousted all the legal heirs from the house one by one in order to usurp the same ; the transfer of the house in his favour was kept completely secret by defendant No.1 from all the legal heirs of the deceased, and this fact came to the knowledge of the plaintiff for the first time in April / May 2012 through the letters of the defendant No.11 Society issued in response to the legal notices issued by the plaintiff. It has been strongly asserted in the plaint that the housewas owned exclusively by the deceased at the time of his death, and after his death, the house devolved upon all his legal heirs as per their respective shares according to Shariah.
9. Regarding property No.301, Garden West, Karachi, it has been averred in the plaint that the entire sale consideration of the said property was paid by the deceased, but the transfer thereof was effected in the joint names of the deceased and defendant No.1 ; and, therefore, defendant No.1 is the benami owner of 50% share in the said property, which is actually inherited by all the legal heirs of the deceased as per their entitlements. Likewise, for property No.RB-6, 25/26, Ram Bagh, Karachi, it has been averred that it was owned by the great grandfather (late Abdullah) of the plaintiff and defendants 1 to 10, who had six children including the grandfather (late Suleman) of the plaintiff and defendants 1 to 10, who inherited 1/6th share in the said property ; the share of late Suleman devolved upon his ten children, including the deceased ; the deceased purchased the shares of all his siblings, and thus became the owner of the entire 1/6th share of late Suleman ; the deceased also purchased in the said property 1/6th share of his cousin Fakir Muhammad in the name of defendant No.1 as benami ; and, the said 1/6th share purchased benami in the name of defendant No.1 is also inherited by all the legal heirs of the deceased as per their entitlements. It has been clearly asserted in the plaint that the properties left by the deceased have been inherited by all his legal heirs, and the purported claim / ownership of defendant No.1 in respect thereof is illegal and void. On the basis of the above averments and allegations, the plaintiff has prayed for administration of the said properties and for distribution thereof amongst the legal heirs of the deceased as per their entitlements.
10. It is well-settled that for the purpose of rejection of the plaint, the averments and allegations made in the plaint are to be examined, and if upon a bare perusal thereof and assuming the same to be correct, a cause of action is spelt out from the plaint, it cannot be rejected. In Pakistan Agricultural Storage and Services Corporation Ltd. V/S Mian Abdul Latif and others, PLD 2008 Supreme Court 371, the Hon’ble Supreme Court was pleased to hold that the term ‘cause of action’ represents all the requisites and facts which are necessary for the plaintiff to prove before he can succeed in a Suit. It is also well-settled that where a cause of action is disclosed, the question as to whether the plaintiff will be able to prove it or not, is irrelevant for deciding an application for rejection of the plaint. The accompaniments of the plaint and other undisputed material on record can also be looked into for this purpose. The Memorandum of Settlement referred to by the learned counsel for defendant No.1 is an unsigned document, therefore, it cannot be relied upon at this stage before evidence. It is to be noted that essentially this is a Suit for administration and not only the plaintiff, but defendants 2, 3, 4, 6 and 9 have also categorically claimed their share / right of inheritance in the properties claimed by defendant No.1 as his own. The questions as to whether the other legal heirs of the deceased are entitled to their share in the properties left by the deceased, or whether the said properties were left by the deceased or not, are a fit subject of decision in this Suit for administration, as held by the Hon’ble Supreme Court in the case of Syed Mehdi Hussain Shah V/S Mst. Shadoo Bibi and others, PLD 1962 Supreme Court 291. It is also to be noted that a Suit foradministrationby a co-sharer cannot be dismissed as barred by time, nor can its plaint be rejected on such ground. As to the other prayers in the plaint, it is a well-established principle of law that a plaint cannot be rejected in piecemeal, and for rejection of the plaint, it is necessary that the plaintiff should not be entitled to any of the reliefs sought therein. Therefore, the plaint cannot be rejected.
11. The allegations and counter allegations by the parties clearly indicate that they are at variance on questions of fact which cannot be resolved without recording their respective evidence. In my humble opinion, the plaint cannot be rejected in these circumstances without affording opportunity to the parties to adduce evidence and without providing them chance of hearing. This view expressed by me is supported by (1) Q.B.E. Insurance (International) Ltd. V/S Jaffar Flour and Oil Mills Ltd. and others, 2008 SCMR 1037, (2) Mst. Karim Bibi and others V/S Zubair and others, 1993 SCMR 2039, (3) Muhammad Younis Arvi V/S Muhammad Aslam and 16 others, 2012 CLC 1445 (Supreme Court AJ&K) and (4) Muhammad Afzal V/S Muhammad Manzoor and 40 others, 2013 YLR 85 (Supreme Court AJ&K).
12. These are the reasons of the short order announced by me on 25.04.2014, whereby C.M.A. No.2199/2014 for rejection of the plaint was dismissed with no order as to costs. It is, however, clarified that the observations made and the findings contained in this order, which are tentative in nature, shall not prejudice the case of any of the parties, and this Suit shall be decided on merits strictly in accordance with law.
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