IN THE HIGH COURT OF SINDH AT KARACHI
Suit No.1022 of 2011
Plaintiff: Mst Azra Parveen & others
through:Mr. Mehmood Habibullah Advocate.
Defendants: Shiekh Ashfaq Hussain & others
through Mr. Faiz H. Shah & company Advocate for Defendant No.1 to 4
Date of hearing: 22.08.2014.
Date of order: 09.09.2014
O R D E R:
Salahuddin Panhwar j- Instant order decides following listed application (s) :-
i) application U/o 39 R 1 & 2 CPC R/w Section 151 CPC whereby an interim order has been prayed for by plaintiffs that ‘restrain the defendants and their agents, subordinates, legal heirs, attorneys and person/persons acting under and on behalf of the defendants for entering and executing any agreement / agreements, transactions or any kind of transactions in respect of the Schedule Annexure-A and B Properties and business till realization of the shares and profits of the plaintiffs and finalization of the dispute between the plaintiffs and defendants in respect of shares and profits and not to create third party interest’
ii) application U/O 38 R 8 CPC r/w Section 151 CPC, moved by plaintiffs seeking attachment of entire properties and business as mentioned in Schedule A & B’
iii) application U/O XL Rule 1 CPC r/w Section 151 CPC, moved by plaintiffs, seeking appointment of Receiver in respect of properties shown in Schedule A & B.
iv) application U/O 39 Rule 4 R/w Section 151 CPC, moved by defendant Nos.1 to 6, seeking suspension/vacation of stay order dated 28.02.2013;
All the above listed interlocutory application (s) are strongly linked with each other therefore, disposal of all in a single stroke shall be proper, justified and within procedural law.
2. At this juncture, while deciding aforesaid applications, back-ground of the pleadings in nutshell shall be helpful for proper understanding and inference thereof. Plaintiffs claim that their mother Mst. Naseem Gulzar was real daughter of late Hafiz Fazal Hussain. Late Fazal Hussain left certain movable and immovable properties to be inherited among his surviving legal heirs; she (mother of plaintiffs) was not paid / given her due share by other legal heirs, so the plaintiffs, claiming under Mst. Naseem Gulzar, filed the instant suit.
3. The defendant Nos.1 to 5 acknowledged the status of Mst. Naseem Gulzar to be one of the legal heirs but came with plea that she was paid up her share in some of properties while she not claimed her share in other properties hence plaintiffs are stopped from claiming any right. Defendants No.7 and 8, however, supported the claims of the plaintiffs.
4. The learned counsel for the plaintiffs, inter alia, argued that status of the mother of plaintiffs to be one of the legal heirs of late Fazal Hafiz Fazal Hussain is not disputed; there are FATWAs, issued by MUFTEE(s) regarding entitlement of the plaintiffs therefore, it would meet the ends of justice to allow the application (s), so moved by the plaintiffs for interim relieves. The case law, reported as PLD 2011 Karachi 83 was referred in support of arguments.
5. On other hand, learned counsel for the defendant Nos.1 to 5, strongly, opposed the application (s) and even strongly pressed that since per FATWA late mother of the plaintiffs was not claiming her share hence estoppel comes into play and plaintiffs are, no more, legally justified to claim what was not claimed by their mother; since certain properties, so left by deceased Hafiz Fazal Hussain were governed under Company laws hence are not available to be administered under ‘administrative suit’. Having pleaded so, he prayed for dismissal of the applications of the plaintiffs.
6. I have heard both the parties and have also examined the available material carefully.
7. Before going deep into merits of the listed application (s), it is matter of record that that plaintiffs have filed the instant suit as an “Administrative Suit” and worth to mention here that an application for interim relief / interlocutory order is always subservient to main relief, claimed in the plaint. The Black’s Law dictionary defines the ‘interlocutory’ as:
“Provisional; temporary; not final. Something intervening between the commencement and the end of a suit which decides some point or matter, but is not a final decision of the whole controversy”
Thus, an application for such a relief should not only qualify its own criteria but should not be beyond the scope of main relief. Since status of the suit is one of ‘Administrative suit’, therefore, it would be proper to understand the scope and limitation of ‘Administrative Suit’. The scope of the ‘Administrative suit’ stood defined by honourable apex court that “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.”
8. While, reverting to merits of the case, I take the application for injunction first. Through this application, the plaintiffs have sought a relief seeking a prohibitory order against the defendants that they should not to enter into any transaction in respect of properties which, presently, is under control of the defendants.
To succeed for grant of injunction, one has to establish all three mandatory ingredients to be in his favour which are prima facie case, balance of convenience and apprehension of irreparable loss or legal injury. This is so because an order, passed under this order, is prohibitory in its nature whereby one is prevented from doing what he was, otherwise, doing under some title. It is such nature of the order therefore, it has been the requirement of law that all three ingredients should co-stand strongly and even if one of the ingredients is missing the application cannot legally sustain. I am strengthened in my view with the case of PURI TERMINAL LTD. versus GOVERNMENT OF PAKISTAN, reported as 2004 SCMR 1092, wherein it is held that:
“21. No doubt an injunction is a form of equitable relief and is to be issued in aid of equity and justice, but not to add injustice. Form grant of such relief, it is mandatory to establish that in order to obtain an interim injunction, the applicant has not only to establish that he has a prima facie case, but he has also to show that the balance of convenience is on his side and that he would suffer irreparable injury / loss unless he is protected during the pendency of suit.”
In the case of Marghub Siddiqui vs. Hamid Ahmed Khan & 2 others (1974 SCMR 519), it is held that:
“An injunction is not to be granted only on the basis that a prima facie case exists but it is incumbent upon the Court to take into account the other questions.”
9. Further, in the instant matter, the status of the plaintiffs to be successors of Mst. Naseem is not disputed and even her (Mst. Naseem) right under such status is not denied. I am quite conscious of the fact that though the defendants have claimed a plea of ‘waiver’ while insisting that she (mother of the plaintiffs) during her life time did not claim her share. It would suffice to say that in matter (s) of inheritance the question of limitation or laches is not significant. This is so, because a right of inheritance entitles one to be given due status in relevant record and once one acquire such legal status he / she can only make a legal waiving / relinquishment through a written document, as required under the law. Be as it may, ‘claiming a right or waiving thereof’ are entirely different from each other which, being relating to factual controversy would require evidence. The plea of the defendants regarding application of company law is also of no legal help for them to dislodge the maintainability of the instant suit particularly when the defendants have admitted that mother of plaintiffs was one of the legal heirs of deceased Hafiz Fazal Hussain who had left certain estate. However, as per pleading (s) the properties, in question, are undisputedly under control and management of defendants under certain claim, therefore, prima facie case appearing in favour of either parties. One does not become entitled for an order of injunction only by establishing ‘prima facie case’, as already discussed.
10. Let’s proceed further to see whether other two ingredients for grant of injunction are in favour of plaintiffs or otherwise. Since control and management is with defendants under their own claimed title and rights therefore, balance of convenience appears to be in favour of defendants and not in favour of the plaintiffs as their claim is to accrue and continue from point of death of deceased Hafiz Fazal Hussain and claim of the plaintiffs shall be confined to estate so left by deceased at such time, which the plaintiffs have to establish through evidence. The defendants have claimed some of the properties to be as ‘company’ therefore, it would not be legally justified to bring a full stop on affairs of the company with reference to the claim of the plaintiffs which is yet to be inquired into and even the properties, shown in schedule-B are being claimed to have acquired through properties left by deceased Fazal Hussain, which claim is yet to be gauged towards its legality to be falling under ‘administrative suit’ or otherwise. It is also a matter of record that the plaintiffs and even their predecessor interest namely Mst. Naseem did not bring their claim till date of filing of instant suit. The position, being so, made me of the view clear that the plaintiffs did not approach the court promptly and even grant of injunction will bring serious prejudice to the affair (s) of the Company as some of the schedule properties have been enjoying status of the ‘company’ . Thus, even third ingredient i.e irreparable loss is not in favour of the plaintiffs. The injunction, at such stage, would result in giving an undue advantage to the plaintiffs over the defendants which is not the object of exercise of discretion, vested in the Court (s) Under Order 39 Rule 1 & 2 CPC where a relief of such nature could be given through tentative assessment. Reference can be made to the case of ATCO LAB (PVT.) LIMITED vs. PFIZER LIMITED and others reported as 2002 CLD 120, wherein it is held that:
“It is well‑settled principle of law that grant of injunction is a discretionary relief and the Courts while considering the question of grant of such relief have to see the co‑existence of prima facie case, balance of convenience and irreparable loss and injury in favour of a party seeking such relief. While dilating upon the merits of a case on these parameters the Courts can also take into consideration the over all conduct of a party i.e.:
(a) Whether he has approached the Court with considerable delay and not acted vigilantly and promptly?
(b) Whether he has not approached the Court with clean hands?
(c) Whether grant of injunction will be against public interest/public policy?
(d) Whether grant of injunction will place a party in an undue advantage which will perpetuate injustice?
(e) Whether the loss/damages likely to be suffered by a party due to refusal of injunction will be calculable in terms of money?
(f) Whether party approaching the Court for injunction has suppressed material facts and acted in a mala fide manner?
If answer to any of these queries is in affirmative, the relief of injunction being discretionary in nature can be declined having regard to the facts of each case.”
11. In view of above, it is germane to mention that the plaintiffs have failed to establish co-existence of all three required ingredients in their favour therefore, application of the plaintiffs moved under order 39 Rule 1 & 2 CPC is dismissed as such.
12. The application of the defendants, moved under order 39 Rule 4 CPC stood infructuous on dismissal of application under Section 39 Rule 1 & 2 CPC.
13. As regard the application of the plaintiffs, moved Under Order XL Rule 1 CPC r/w Section 151 CPC, it would suffice to say that it is never the ‘convenient’ of a party to a lis to insist appointment of a ‘receiver’ but the requirement is that it should appear to the Court to be ‘just’ and ‘convenient’ before putting another person (receiver) by removing the one already in possession and control of the property, sought to be managed by receiver. The words ‘just’ and ‘convenient’ are required to be given their due weight because an order under this provision, though is interim in nature, yet is penal in its nature whereby one (person in possession) is removed from control and possession of such a property, therefore, such discretionary power are not to be exercised in routine but only in case (s) where it, prima facie, stood established that continuity of possession and control of property shall result in wastage or dissipation thereof resulting into irreparable loss / injury to party, seeking appointment of receiver. In the instant matter, it is not the case of the plaintiffs that there is apprehension of wastage of dissipation of property rather the manner in which the plaintiffs have claimed a right in property, shown in schedule-B, is sufficient to show that properties are being managed properly particularly when such property (shown in schedule-B) is claimed to have been from property, shown as Schedule-A. The defendants are also claiming the properties under certain legal title and claim of the plaintiffs is still to be interrogated and proved hence mere status of the plaintiffs as successors of Mst. Naseem is not sufficient to invoke the jurisdiction Under Order XL Rule 1 CPC which, otherwise, has been held to be ‘harshest one’. Thus, once it, prima facie, appears to the Court that there is no likely of property being wasted or dissipated then it is neither convenient nor just to remove the person from possession and control of property which he is already managing under legal title. Accordingly, the application of the plaintiffs, moved Under Order XL Rule 1 CPC, being devoid of substance stands dismissed.
14. The application, moved Under Order 38 Rule 8 CPC also appears to be not sustainable for the simple reason that provision of Order 38 of the code is titled as ‘arrest and attachment before judgment’. This provision comes into action only where it, to satisfaction of the Court, is established that the defendant is likely to frustrate the order / decree of the court either by absconding away or removing his property from ambit of power of Court. There has not been any such claim or allegation from the plaintiffs’ side. Needful to mention here that it is not the mere allegation or claim of plaintiffs but it should be based on such facts and circumstances which could convince the court to believe that there is real danger that defendant will remove himself or his property from ambit of the power of the Court. Instant application, however, has been moved under Rule-8 of Order 38 CPC which reads as under:-
“8. Investigation of claim to property attached before judgment.—Where any claim is preferred to property attached before judgment, such claim shall be investigated in the manner hereinbefore provided for the investigation of claims to property attached in execution of a decree for the payment of money.”
The plain reading of the above provision leaves nothing ambiguous that it shall come into play only in respect of property attached before judgment. In the instant matter there is no order of attachment of property hence instant application, prima facie, appears to be out of the scope of Rule-8 of the Order 38 of the Code.
15. In the end, I may add here that the application (s) Under Order XL R 1 or one moved under Order 38 of the Code could only succeed where prima facie it is established on record to satisfaction of the Court that there is an apprehension of irreparable loss and injury to the interest of the party which they are likely to acquire at the end of the day through Judgment / decree of the Court as both these provisions are meant to protect future interest but where an application for grant of injunction in favour of plaintiffs fails the discretion under these two provisions cannot be exercised in favour of the plaintiffs for simple reason that ‘question of irreparable loss / injury’ was already in against of plaintiff which, otherwise, is a main ingredient to insist exercise of jurisdiction under these provisions.
16. Thus instant application, moved under Order 38 Rule 8 CPC, being not sustainable in law, is dismissed as such.
17. While parting, it would be condusive to endorse that the scope and objective of the ‘Administrative Suit’ permits rather insists through Order XX Rule 13 CPC that before passing a final decree , the Court shall pass a preliminary decree whereby ordering an inquiry to know actual account (s) which the deceased left at time of his death. Needless to add here that in an ‘Administrative Suit’ it is not the status of legal heirship alone which would be sufficient to bring a property under ‘administration’ but an unbroken chain of facts / circumstances showing existence of right of such claimant from point of death till his claim. This could not be achieved or determined except through an inquiry on this aspect particularly, when both parties have brought different claims in respect of the estate, so left by deceased Hafiz Fazal Hussain, at time of his death. To shorten the proceedings and to lessen the agony of both parties, it would be well within spirit of safe administration of justice to have an inquiry about properties, so left by deceased Hafiz Fazal Hussain at time of his death and subsequent transaction (s), if any in that respect so as to determine claims, status and title of parties and that of document (s) within four corners of ‘administrative suit’. This shall cause no prejudice to either party but shall help in bringing genuine claim, rights and liabilities of each which is, now doubt, had been the ultimate objective of ‘administrative suit’. Therefore, in all fairness, equity and good conscious I am of the view that inquiry / investigation in that respect is necessary.
18. Accordingly, the Nazir of this Court is hereby appointed as Commissioner / Inquiry Officer to conduct an inquiry in respect of the details of the properties either movable or immovable, so left by deceased Hafiz Fazal Hussain, at the time of his death including liabilities of the deceased, if any and subsequent transaction (s) / changes, if any in respect of that properties. All the quarter concerned shall cooperate with Nazir in finalizing such task. The order for appointment of Nazir is subject to payment of the Commissioner fee i.e Rs. 20,000 to be paid by the plaintiffs.