ORDER SHEET
IN THE HIGH COURT OF SINDH AT KARACHI
SUIT No. 640/2009
________________________________________________________ Date Order with signature of Judge
_______________________________________________________
1. For hearing of CMA No.4640/2009.
2. For hearing of CMA No.11112/2012.
3. For ex-parte order against defendant No.8.
SUIT NO.640/2009
Plaintiff : Shakeel Aijaz,
Through Mr. Munir-ur-Rehman advocate.
Defendants : Mst. Shakeela Naseem& others,
Mr. Khawaja Shamsul-Islam advocate for defendants No.1, 3, 5, 6 & 7.
Mr. Muhammad Iddrees Alvi advocate for defendant No.9.
Date of hearing : 26.08.2014.
Date of Order : 23.09.2014
SALAHUDDIN PANHWAR, J. This order will dispose of two application(s) U/O 39 Rule 1 and 2 CPC (hereinafter referred to as application for stay) (CMA No.4640/2009) and application U/O 39 rule 10 CPC (CMA No.11111/2012) filed by plaintiff.
2. In application for stay plaintiff prayed for restraining defendants from creating third party interest in property No.1 viz. Shops No.A-1, A-2, A-3 and A-4 in Block A, Shakeel Corporation, situated at ST-2, Block 1, F.B. Area, Karachi till final disposal of the present suit and further restraining defendant No.3 from using documents of plaintiffs mentioned in para 3 of the plaint.
3. By application under order 39 rule 10 CPC plaintiff has prayed that: “to direct the defendants no 6 to deposit the sale consideration of houses no B 126 and 125 block Gulshan-e-Iqbal to extent of share of the plaintiff with the Nazir of this court’.
4. Brief facts of the case are that father of plaintiff namely Aijazuddin Qureshi expired on 28.03.2009 leaving behind legal heirs sued as defendants No.1 to 6; said deceased, in partnership with defendant No.8, had constructed project Shakeel Corporation in the name of the plaintiff but above said defendant No.8 sold out almost entire project except some portion of Block A consisting of shops No.A-1, A-2, A-3 and A-4 Shakeel Corporation. There are two flats under construction on said shops and defendant No.8 handed over said shops and flats to the deceased father assuming him owners thereof; plaintiff is in physical possession of said shops and flats. It is contended that defunct KDA allotted 10 plots in the name of M/s. Shakeel Corporation and 8 plots were sold out while two plots No.B-125 and B-126, Block 5, Gulshan-e-Iqbal, Karachi remained in possession and ownership of deceased. That father of plaintiff had established a firm in the name of plaintiff viz. Shakeel corporation that is why he used to keep signed stamp papers, signed blank papers, NIC and photographs of plaintiff with him in Almirah to be used in any other proceedings or any transaction. That in the year 2005/2006 defendant No.3 fraudulently got transferred plot No.B-125 illegally and unlawfully and at the time of shifting of goods lying in those houses the said defendant took away almirah containing said documents and till date plaintiff requesting the said defendant to return the said documents. It is contended that plot No.B-125 was illegally and unlawfully sold out by defendant No.3 and plot No.B-126 was sold out by defendant No.6 illegally and sale proceeds received by his wife. That it has come to knowledge of plaintiff that defendants No.1, 3, 5 and 6 have produced unregistered gift deed dated 10.09.2004 purported to be executed by deceased father of plaintiff on 10.09.2004 by Justice of Peace for transfer of flats and shops in their names in ratio mentioned therein and said unregistered gift deed is forged and fabricated documents.
5. Defendant No.2 filed counter affidavit to stay application contending therein that shops No.A-1, A-2, A-3 and A-4 in Shakeel corporation and two uncompleted flats with structure thereon are properties of his deceased father who had given possession of said shops to plaintiff in the year 1990 to do the business and from then said shops and structure thereon are in his possession and now shops are closed under lock and key, that this Court may ascertain physical possession or occupation of person actually in possession of properties in question after inspection of site through commission, that said defendant has no objection if application under order 39 rule 1 and 2 CPC is allowed and preliminary decree may be passed and Nazir may be appointed to take account and properties in his possession left by deceased and distribute respective share among legal heirs.
6. Learned counsel for plaintiff has inter-alia contended that plaintiff is legal heir of late Aijazuddin Qureshi had not gifted suit property infavour of defendant, infact this is a manipulated document, therefore sale on the basis of gift is ab initio void; administration suit is maintainable against the sharer, who claims, title in his favour on the basis of gift deed; defendant are liable to deposit the sale consideration, with Nazir of this court. In support of his contention he relied upon the case laws reported as PLJ 1976 SC 44 and PLD 2011 K-83.
7. Learned counsel for defendants No.1, 3, 5, 6 and 7 while arguing application for stay, has contended that said application is not maintainable as its barred in terms of section 42, 56 of Specific Relief Act and that plaintiff has no legal character to maintain the suit within the meaning of section 42 of Specific Relief Act and liable to be dismissed, suit is not maintainable as admittedly not a single property was in name of deceased father of defendants, that for cancellation of gift deed suit is not maintainable being barred by time as gift deed was executed on 19.09.2004 and suit was filed in May 2009 which is absolutely time barred apart from other legal infirmities, that suit is not maintainable in view of fact that at the time of his death on 28.3.2009 father of defendants did not own any property in his name as during his lifetime he had already distributed all properties and assets amongst plaintiff and answering defendants. That shops No.A-1, A-2, A-3 and A-4 in block A on plot ST-2, BLOCK 1, F.B. Area are in exclusive name of defendants No.1, 3, 5 and 6 respectively according to their share which was done on the basis of gift deed executed by deceased during his lifetime. It is further argued that the deceased paid entire payment of 10 allotted plots and two plots bearing No.B-125 and B-126, Gulshan-e-Iqbal were in the name of late father of plaintiff and defendants, who during his lifetime, executed power of attorney in favour of defendant No.3 in respect of both plots and plots were sold one Muhammad Saeed through sub-attorney Asad Mehmood Hashmi and registered sale deed was executed on 5.5.2007 in respect of both plots, neither plaintiff nor defendants are in physical possession of the plot No.B-125 and B-126. That possession letter and transfer letter of shops and flats of Shakil Corporation are in custody of defendants No.1, 3, 5, 6 NS 7, the deceased wrote a letter to defendant No.8 dated 28.11.2008 regarding transfer of the shops and flats on the basis of gift deed, the general manager of the company did not receive the letter at that time because NIC of defendant No.5 was old one so they submitted a form to NADRA for fresh NIC and after receiving new NIC they again submitted letter on 25.02.2009 and took transfer letter on 26.02.2009. It is denied that defendants tried to dispossess the plaintiff as defendants are already in possession of the shops since inception. Learned counsel relied upon 2005 SCMR 471, 2004 YLR 3296, 2004 CLJ 742, 1996 CLC 1588, 1996 CLC 1588, PLD 1989 Peshawar 67, PLD 2001 Lahore 390, PLD 1975 Karachi 978, PLD 2007 Lahore 518, 1989 MLD 4314, 1999 YLR 2209 &, PLD 2008 Karachi 540 and PLD 1987 Lahore 654.
8. I have given due consideration to what has been argued by the respective sides and have also meticulously examined the available record keeping in view the respective contentions.
9. I would, first, take up the application, moved under Order 39 Rule 10 CPC through which an interim relief with regard to issuance of direction for depositing the sale consideration of houses no B 126 and 125 block Gulshan-e-Iqbal to the extent of share of the plaintiff with the Nazir of this court is claimed.
Before proceeding any further on merits of the case, it would be pertinent to examine the scope and object of the Order 39 r 10 of the Code first. To respond it properly it would be advantageous for convenience and understanding to refer the relevant provision (s):-
R.10. Deposit of money, etc., in Court.—Where the subject-matter of a suit is money or some other thing capable of delivery, and any party thereto admits that he holds such money or other thing as a trustee for another party, or that it belongs or is due to another party, the Court may order the same to be deposited in Court or delivered to such last-named party, with or without security, subject to the further direction of the Court.
This proviso is having two folds. First one explains the thing for which jurisdiction can be insisted and other is the condition, which if fulfills, would justify exercise by the Court.
10. First part of the provision does not have general application but has been limited to ‘subject matter’ which (subject-matter) has been defined / confined by the proviso itself by use of phrase ‘money or some other thing capable of delivery’. The term ‘capable of delivery’ is not defined hence if the ordinary meaning is taken or presumed it shall include anything which could be delivered within competence of one. The ordinary meaning of the word ‘delivery’ has been:-
‘the action of delivering letters, parcels, or goods’
The ordinary meaning of said word makes me to say that this term will not include the ‘immovable things’ else the phrase ‘some other’ would have been substituted by the legislature with phrase ‘anything’.
11. The provision further explains its other fold that it could only be insisted where the person in possession of such ‘subject matter’ does not claim to be in possession thereof in his own ‘title & right’ but either as ‘trustee’ for another party or admits that it belongs or is due to another party. I thus conclude safely the first fold of the proviso as :-
i) subject matter, in a suit, should either be money or something capable of delivery;
ii) the person in possession should admit his possession to be not in his own right but either as ‘trustee’ for another party; or
iii) that it belongs or is due to another party;
Out of the above the decisive is ‘admission. This provision appears to meet with a situation where a party admits about right of another party to hold possession while acknowledging his possession as that of ‘trustee’ so that such an uninterested or willing person be relieved of his such duties either by depositing the subject matter (i.e money or thing capable of delivery) in the Court or to put last named party (whose right to hold possession or title is admitted by person in possession). The deliberate use of the phrase ‘such last named party’ in the proviso also appears to be with sole object to relieve the out-going possessor by delivering the subject matter either in court or to the party whose entitlement is admitted by such party(out-going possessor). Since object of this proviso appears to be so, therefore, I am of the clear view that it would not be of any determining factor of legal entitlement of such ‘subject matter’ but only relieves the person, in possession, because of his specific admission. In the end it is worth to conclude that even if the first condition regarding the ‘subject matter’ is fulfilled yet in absence of admission by the person, in possession of such ‘subject matter’ there can be no order in this provision.
12. Let’s examine the case in hand in view of above criteria. Since there is no ‘admission’ from defendants that they are holding money (one of subject matter matters) as trustee or that it belongs to another party hence in absence whereof the application, in hand, moved Under Order 39 R 10 CPC cannot sustain. Thus the same is accordingly dismissed being devoid of merits.
13. Now, I would like to take up the application for injunction. It would be in all fairness to address the issue of maintainability, which is seriously raised by defendant side while arguing instant application hence it would not be legally justified to grant or refuse the injunction by keeping the lis pending when very maintainability of the lis isquestioned. The first and prima condition for determination of relief of interim injunction is ‘prima facie case’ which, in its wider sense, touches the very maintainability of the suit because the term ‘prima facie’ is not complete unless the case (pleading) does not appear to be entitled for a decree from its totality.
Keeping in view of above touch stone, it would be quite justified and proper to address this legal objection whereby defendants have questioned the maintainability of the suit with reference to scope of the ‘administrative suit’ while pleading that plaint, so framed and relief (s) sought are sufficient to hold the suit to be out of the scope of the ‘administrative suit’.
14. Here, it may be advantageous to say that relief (s), if any, in Civil Jurisdiction are usually recognized and granted under the Specific Relief Act but there are certain reliefs (s) which the Court (s) can competently grant, albeit, same are not covered by the Specific Relief Act. One of such relief (s) is that which can be granted in a suit for ‘Administrative Suit’. The question in such like suit (s) regarding relief (s) and parties was responded by honourable Supreme Court in the case of Syed Mehdi Hussain Shah V Mst. Shadoo Bibi & Others (PLD 1962 SC 291) as:
‘ In absence of any specific provision in the procedural law the question as to the matters to be determined and the parties to be impleaded in a suit depends on the relief that is to be granted in that suit’
At this juncture, it would be pertinent to mention that the scope of the ‘Administrative suit’ stood defined by honourable apex courts as:-
‘to determine what estate the deceased left at the time of his death; administration thereof; payment of debts and liability and partition of rest of estate between the heirs’
The scope of the Administrative suit and limitation (s) to grant relief (s) in such like suit in absence of any specific provision of law, make me of the view that it would always be material to examine the relief (s) sought and effect of such relief (s) against the parties (persons). At this stage, it would be condusive to refer case law reported as PLD 2011 Karachi 281 wherein guideline to gauge the maintainability of the ‘Administrative suit’ has been detailed as:
13. We would therefore (subject to the test formulated in para.11 above) sum up the foregoing analysis in the form of the following propositions:
a) when the question is whether a property forms part of the estate of a deceased, and a determination of this question involves a person who is a stranger to the estate, then question should be determined by means of separate proceedings;
b) proposition (a) is subject to the qualification that if the question is also whether the stranger is a sharer in the estate, then the matter comes within the scope of administration suit;
c) when a determination of the aforesaid question involves a person who is a sharer in the estate then the question comes within the scope of the administration suit, and this is so regardless of whether the sharer claims through or under the deceased ( e.g. by way of a gift or sale from the latter) or in his own right;
d) it is immaterial whether or not the property in question stood in the name of the deceased at the time of his death, and it is likewise immaterial whether any alienation was by way of a registered instrument or otherwise.
15. Hence, patently above criteria is in conformity to the fact that determination of maintainability shall be subject to the relief (s) and effect thereof. If the relief (s) sought effects upon a stranger it shall be beyond the scope of Administrative Suit and a separate suit shall be competent. To maintain a suit within capacity of ‘administrative suit’ against stranger it is necessary to show that such stranger is a sharer’.
Thus, needful to say that although the scope of the ‘administrative suit’ was widened even to probe into title (s) but such was made subject to the condition that it should revolve round the ‘sharer’ only. This was with an object to avoid multiplicity of the lis but confining the scope to extent of ‘sharer’ was sufficient to establish that nature and character of the ‘administrative suit’ is different from that of an ordinary civil suit (governed by Specific Relief Act). In an ‘administrative suit’ the final decree is to follow the result of an inquiry within meaning of Order XX rule 13 CPC while in an ordinary suit the determination of rights and status is dependent upon a fully fledged ‘trial’.
16. Now let’s examine the instant case on said touch stone. The plaintiff filed the suit for ‘Declaration, Partition, Administration, Cancellation of Gift Deed, Rendition of Accounts, Mandatory & Permanent Injunction. Except the relief of ‘Administration and partition’ rest of the relief (s) are governed by Specific Relief Act and determination of such relief (s) has got its own criteria. However, since it is not the title but the relief (s) which matters, therefore, a reference to relief (s), sought is necessary which are as under:
a) Declaring that the L.Rs mentioned in para-1 of plaint are the real L.Rs of deceased father of the plaintiff to inherit the properites left by deceased father of the plaintiff ;
b) Declaring that the plantiff being one of the L.Rs of the deceased father of the pliantiff is entitled to receive his respective share from the properties left by the father of the plaintiff ;
c) Direecting the defendants No.3, 6 and 7 to submit accounts in respect of property No.2 which they sold out and to pay the respective share of the L.Rs from the sale proceeds thereof ;
d) Directing the defendant No.3 to hand over the documents mentioned in para -3 of the plaint to the plantiff ;
e) Declaring that the Gift Deed, dated 10.9.2004 is forged and fabricated document and to have been executed falsely and having no legal force therein ;
f) Restraining the defendant No.8 from transferring the property No.1 viz shops and flats in the names of the defendants No.1,3, 5 and 6 ;
g) Appointing the plaintiff as Administrator of the property No.1 or Nazir may be directed to sell out the same and to distribute the respctive share amongst L.Rs ;
h) Granting cost of the suit ;
i) Any other relief (s) which this Hon’ble Court may deem fit & proper under the circumstances of the case.
Therefore, status of the plaintiff to be one of the legal heir (s) of the deceased is not disputed from rival side (defendants) hence the relief (s), claimed as (a) & (b) needs no declaration from the Court because an undisputed legal heir is legally entitled to be given his / her due share in the estate of deceased blood-relation as per his / her legal entitlement.
17. The prayer clauses (c) to (f) relate to such relief (s) which themselves are sufficient to take the matter out of the scope of ‘administrative suit’ because such relief (s) involve (s) the claims, interests and rights of the stranger (s) who have neither been impleaded as parties and admittedly are not ‘sharers’. Even otherwise, amittedly there are registered document (s) in favour of stranger which is neither sought to be cancelled nor could legally be cancelled within scope of Administrative suit. The question of gift in favour of the defendants (sharers) can well be probed into within meaning of administrative suit but since admittedly deceased at time of his death was not having any property in his name and even the gift has been claimed by defendants to be result of distribution of properties by deceased during life time as the plaintiff also received properties from deceased which claim was not denied or explained by plainiff through replication (Order 8 r 9 CPC). The plaintiff through prayer clause (g) has sought a relief of administration of property No.1 only but such property i.e Shops No.A-1, A-2, A-3 and A-4 in Block A, Shakeel Corporation, situated at ST-2, Block 1, F.B. Area, is same which is in names of defendants on basis of the gift. The plaintiff cannot be a chooser while seeking relief of administration of assets of deceased but shall be required to seek an inquiry towards accounts / assets , so left by deceased else the determination of such chosen relief (s) shall require adjudication through seperate proceedings as it shall be dependant upon determination of allegations and claims which could only be adjudicated through a full fledged trial and not by an inquiry.
18. From above disccussion, it becomes quite obvious that relief (s) sought involves stranger hence shall cause effect upon the registered document (s) in favour of stranger , therefore, the present suit is out of the scope of the administrative suit and even relief (s) are governed under Specific Relief Act therefore, it would be proper and fair not only for plaintiff but also for defendants to establish their respective claim (s) and entitlement through seperate proceedings. Accordingly, the plaint of the plaintiff is hereby rejected under Order 7 r 11 CPC.
JU D G E