PLJ 2021 Islamabad 40 - Withholding of Outstanding Dues

Present: Ms. ubna Saleem Pervez, J.

GETZ PHARMA (PVT.) LIMITED through Duly Authorized Representative--Petitioner

versus

MUHAMMAD NAFEES, etc.--Respondents

W.P. Nos. 327, 340 & 342 of 2020, decided on 20.11.2020.

Constitution of Pakistan, 1973--

----Art. 199(1)(a)(ii)--Payment of Wages Act, 1936, S. 15--Appointment on contract basis as territory manager--Violation of policy of conflict of interest--Withholding of outstanding dues--Filing of claim--Allowed—Direction to payment of dues--Mandatory requirement--Refusal of payment--Scope of interference--Jurisdiction--No labour Court is functional in Islamabad, as such no alternate remedy is available to petitioner and present writ filed by petitioner is maintainable as writ of certiorari, under Article 199(1)(a)(ii) of Constitution of Pakistan, 1973--Payment of gratuity in case in hand has not been denied by petitioner, but has refused payment on grounds of misconduct and resignation of Respondents No. 1 for alleged violation of conflict of interest and breach of contract--Perusal of order passed by authority reveals that it has considered all arguments raised before him and after appreciating all relevant documents produced by parties, has passed order impugned through this petition--Moreover in writ of certiorari, scope of interference by this Court is very limited to extent of supervisory jurisdiction and, therefore, High Court has no jurisdiction to probe into factual disputes or reappraise or reconsider documents and evidences empowered as in appellate jurisdiction--It has been settled by now that party seeking writ of certiorari is required to establish error of law, jurisdictional defect or violation of principles of natural justice which must be seen on face of order and establish that order is without lawful authority and of no legal effect--Petitioner in present case has failed to point out any jurisdictional error, illegality and irregularity in impugned order, passed by authority, thus no case has been made out for interference in impugned order--Petition was dismissed.                                                        

                                                          [Pp. 43, 45, 46 & 47] A, B, C & D

M/s. Wasi Ullah Khan and Saad Shoaib Wyne, Advocates for Petitioners.

Mr. Muhammad Bashir Khan, Advocate for Respondent No. 1.

Date of hearing: 16.10.2020.

Judgment

Through this single judgment I intend to dispose of all the three titled writ petitions, as similar questions of law and facts are involved.

2. The petitioner through titled petitions has invoked constitutional jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan seeking following prayer:

“In view of the above circumstances, it is most respectfully prayed that the instant petition may kindly be accepted and the Impugned Order dated December 26, 2019 may kindly be set aside;

The operation of the Impugned order may kindly be suspended till the final decision of this Honourable High Court in this instant Writ Petition;

Any other relief which this Honourable Court deems fit and appropriate may also be granted to the Petitioner.

3. Facts of the case are that the petitioner, a private limited company, appointed Respondent No. 1, in the respective petitions, on contract basis in the year 2003, 2004 and 2005, respectively as Territory Manager and subsequently promoted them upto Senior Sales Manager-Institutional Business. The Respondent No. 1 in W.P. No. 327/2020, resigned from the service on 4.7.2017, whereas, Respondent No. 1 in W.Ps. No. 340 & 342 of 2020, were dismissed from service on 30.11.2017, on the common allegations i.e. breaching terms of the contract and violating the policy of conflict of interest by forming another company having similar nature of business as that of petitioner with the name of Sun Health Care (Pvt.) Limited in June, 2O16.The petitioner, therefore, withheld the outstanding dues such as gratuity, etc. in terms of Rule 5(h) of Gratuity Funds Rules according to which no gratuity shall be paid to the member who has been dismissed on account of misconduct or dishonesty or has resigned from service. The Respondents No. 1 filed claim/petition under Section 15 of the Payment of Wages Act, 1936, (hereinafter referred to as the Act, 1936) before Assistant Commissioner/Magistrate 1st Class, who, vide order dated 26.12.2019, directed the petitioner to pay the dues and compensation as claimed in the petition. The petitioner company has assailed the said order in the present Writ Petitions.

4. Learned counsel for the petitioner submitted that the Respondents No. 1 are not workmen, as defined under the Industrial Relations Act, 2012, and fall within the definition of employer as at the time of their resignation/dismissal all three were serving as Senior Sale Manager. He referred judgment titled as National Bank of Pakistan v. Anwar Shah (2015 SCMR 434), Aurangzaib v. Media Pak(Pvt) Ltd (2018 SCMR 2027) and KESC v. NIRC (2015 PLC 1), whereby the sales man has been held not to be a workman within the meaning of Industrial and Commercial employment. (Standing Orders) Ordinance, 1968. He submitted that controversy involved does not fall within the purview of Act, 1936, in view of the fact that head office of the petitioner is in Karachi and it has been specifically mentioned in their contract that any dispute between the parties will be settled in Karachi Courts only and further submitted that the jurisdiction of NIRC under Industrial Relations Act, 2012, is appropriate forum for labour disputes of the employees and workers of trans-provincial corporation/ institution/establishment by placing reliance on the judgment of Hon’ble Supreme Court titled as M/s. Sui Southern Gas Company Ltd. v. Federation of Pakistan (2018 SCMR 802).

5. On the other hand, learned counsel for the respondents/ employees in response to the arguments of learned counsel for the petitioner, inter-alia, submitted that the petition is not maintainable for the reason that any order passed under Section 15 of the Act, 1936, is appealable under Section 17; that the amount of gratuity, etc. ordered to be paid by the authority has not been deposited and no certificate thereof has been annexed which is a mandatory requirement and placed reliance on judgment titled as Tehsil Nazim TMA, Okara versus Abbas Ali and others (2010 SCMR 1437) and Syed Match Company Ltd. through Managing Director versus Authority Under Payment of Wages Act and others (2003 SCMR 1493); that the remedy available to the petitioner is under Section 57(2) of the IRRA, 2012 as it is a trans provincial commercial establishment; that the petitioner failed to point out jurisdictional defect of the authority necessary to invoke constitutional jurisdiction under Article 199, that the Respondent No. 1 was employed with the petitioner who falls within the definition of commercial establishment, Factory and Industrial establishment, vide Sections 2(i), 2(ia) and 2(ii), hence, can approach authority under Act, 1936 in terms of provision of Section 1(4) of the Act, 1936. In this regard he relied on the judgments titled Soneri Bank Ltd. versus Federation of Pakistan through Secretary, Law and others (2016 SCMR 2168), M/s. Lone China (Pvt) Ltd. Gujranwala through Chief Executive versus Presiding Officer, Punjab Labour Court No. 7 Gujranwala and others (2011 PLCS 37), Factory Manager, Nauroz Associate (Pvt) Ltd. Multan versus Muhammad Ali and 2 others (2013 PLC 229), Ghulam Mustafa and another versus Pakistan Industrial Gases Ltd. and others (2002 PLC 52) and Tariq Jameel Butt and another versus Pakistan Engineering Company Ltd. (2010 PLC 204); He also relied on judgment of Hon’ble Supreme Court in Aurangzeb versus Medipak (Pvt.) Ltd. and others (2018 SCMR 2027). Learned counsel prayed for dismissal of the petition on the ground of maintainability.

6. Arguments heard. Record perused.

7. The learned counsel for the respondents has raised a preliminary objection regarding maintainability of the petition on the ground that orders passed under Section 15 of the Act, 1936 are appealable under Section 17, therefore, the petitioner was required to avail alternate remedies under the Act, 1936 instead of invoking writ jurisdiction under Article 199 of the Constitution. The argument of the learned counsel has been considered and the Act, 1936 has also been perused which provides an inbuilt forum of appeal vide Section 17 of the Act, 1936, where an aggrieved party within period of 30 days can assail the order passed u/S. 15 before the Labour Court, however, it is also a fact that no labour Court is functional in Islamabad, as such no alternate remedy is available to the petitioner and the present writ filed by the petitioner is maintainable as writ of certiorari, under Article 199(1)(a)(ii) of the Constitution of Pakistan, 1973.

8. The petitioner has assailed order dated 26.12.2019, passed by the Assistant Commissioner/Magistrate 1st Class, Islamabad, wherein the learned Court after considering all the facts, circumstances and arguments of the parties, has observed that the claim of the respondents against Petitioner Company is genuine and the petitioner company is directed to pay the outstanding dues and gratuity, etc to the Respondents No. 1.

9. The Respondents No. 1 upon refusal of the petitioner for payment of gratuity and other dues, filed petition under Section 15 of the Act, 1936. Learned counsel for Petitioner mainly argued on the jurisdiction of Assistant Commissioner for entertaining the claim of the Respondents No. 1 under Section 15 of the Act, 1936, and contended that they do not fall within the definition of the term “Workman”. According to preamble of Act, 1936, the primary object of its promulgation is to regulate the payment of wages to certain classes of persons employed in the factory, industrial or commercial establishment, with the purpose to protect the wages of the persons who served and performed duties in industrial and commercial establishment/factories and such other work places. Therefore, the legislature in its wisdom and intention has not defined the term “worker” or “workman” in the Act and the words “persons employed” has been referred instead, which has broaden the scope, evidently in view of the object of the Act, 1936. The Hon’ble Supreme Court, vide judgment titled as Aurangzeb versus Medipak (Pvt) Ltd. and others (2019 PLC 51) with reference to the amendment, vide the Labour Laws (Amendment) Act, 2001, has interpreted the provisions of sub-Section (4), (5) & (6) of Section 1 and held that substantial changes has made through Ordinance, 2001, to expand the scope of Act, 1936. The relevant passage of the judgment is also reproduced below:

“9. The Labour Laws (Amendment) Ordinance 2001 (“2001 Ordinance”) made substantial changes to the 1936 Act. Subsections (5) and (6) of Section 1 were omitted altogether. A new definition of “commercial establishment” was added to Section 2, and subsection (4) of Section I amended so that it now read as follows:

          “It applies to the payment of wages to persons employed in any factory, industrial establishment or commercial establishment and to persons employed (otherwise than in a factory, industrial establishment or commercial establishment) upon any railway by a railway administration or, either directly or through a subcontractor, by a person fulfilling a contract with a railway administration.”

Subsection (4) has retained the foregoing shape since 2001, and therefore, applied on all dates relevant for present purposes. It will be seen that the limiting words “in the first instance” have been omitted, which was of course consistent with the omission of subsection (5). Thus, the Act has now become applicable to persons employed in any factory, industrial or commercial establishment. The omission of subsection (6) means that the other limiting feature, namely that the Act only applied to wages up to a certain limit and not beyond, has also been removed. Thus, since 2001 only two things need be shown by a person who seeks to bring his claim within its scope: firstly, that he was a “person employed”, and secondly that he was employed in either a “factory” or an “industrial establishment” or a “commercial establishment” (as defined). It is clear that the 2001 Ordinance has expanded the scope of the 1936 Act manifold. In one go, an extraordinarily large number of persons, employed in a great many different situations, have been brought within its fold, and have become entitled to bring a claim in terms thereof. One thing, of immediate relevance, may be emphasized. There never was, and certainly after the 2001 Ordinance no longer is, any requirement that the claimant establish himself to be a “workman”, whether as defined under any labor legislation (including the 1968 Ordinance) or otherwise.”

10. Perusal of Section 2(iv) of Act, 1936, which defined the term “Wages” reveals that payment of gratuity has been excluded from wages, which oust the jurisdiction of authority to hear the claim regarding gratuity but the amendment made vide Act, No. XVII of 1973. The words “or non-payment of dues relating to provident fund or gratuity payable under any law” were inserted in sub-section (1) & (2) of Section and in effect thereof the authority u/S. 15 of Act, 1936 have been accorded jurisdiction to entertain claims/issues regarding gratuity and provident fund. The payment of gratuity in the case in hand has not been denied by the petitioner, but has refused payment on the grounds of misconduct and resignation of the Respondents No. 1 for alleged violation of conflict of interest and breach of contract. Thus in view of the judgment of Hon’ble Supreme Court in Aruangzeb’s case supra, and the amendment made in Section 15(1) & (2) vide Act, 1977, the authority was well within its jurisdiction to adjudicate upon the claim of the Respondents No. 1 filed under Section 15 of the Act, 1936.

11. Learned counsel for the petitioner agitated that the Respondent No. 1 since, breached the terms of contract, therefore, they are guilty of misconduct and, as such, not liable for gratuity in terms of Rule 5(h) of Gratuity Funds Rules, of the petitioner’s Company and that the authority has not considered material facts in this regard while passing the impugned order. Perusal of the order dated 26.12.2019, passed by the authority reveals that it has considered all the arguments raised before him and after appreciating all the relevant documents produced by the parties, has passed the order impugned through this petition. Moreover in writ of certiorari, the scope of interference by the High Court is very limited to the extent of supervisory jurisdiction and, therefore, the High Court has no jurisdiction to probe into the factual disputes or reappraise or reconsider the documents and evidences empowered as in appellate jurisdiction. It has been settled by now that party seeking writ of certiorari is required to establish error of law, jurisdictional defect or violation of principles of natural justice which must be seen on the face of order and establish that the order is without lawful authority and of no legal effect. Guidance has been taken from the following judgments of the High Court:

Bashir Ahmad Khan Versus Additional Sessions Judge (2020 MLD 42)

          The person invoking the Constitutional jurisdiction under the above Article seeking issuance of writ of certiorari, by way of setting aside the order, has to show that the order, under challenge, violates condition mentioned in the above provisions of the Constitution, that the authority/Court/tribunal was denuded of jurisdiction whatsoever to pass the order or that the order impugned is  unsustainable on account of being result of extremely, improper exercise: of jurisdiction or has clearly been passed in violation of any provisions of law or is product of excess or failure of jurisdiction, by the tribunal or that some principle of law laid down by the superior Courts, which under Article 189 of the Constitution is binding on the subordinate Courts has been violated.

Muhammad Faroog versus Full Bench, NIRC Islamabad (2020 PLC 175)

          In the petition at hand, the petitioners are seeking the issuance of a writ of certiorari. Certiordri is not a writ of right but one of discretion. Its object is to curb excess of jurisdiction, and to keep inferior Courts and Tribunals within their bounds. The High Court, white judicially reviewing the proceedings and

judgments of the inferior Courts and Tribunals, cannot substitute its own decision with that of such inferior Courts or Tribunals. The grounds on which certiorari may be invoked is where there is an error of law apparent on the face of the record, and not every error either of law or fact which can be corrected by the appellate authority. It lies where the inferior Court or Tribunal has exceeded its jurisdiction or has not proceeded in accordance with the essential requirements of law which they were meant to administer. It is also issued when the inferior Court or Tribunal acts illegally in exercise of its jurisdiction. For instance, when it decides without giving any opportunity to the parties to be heard or violates the principles of natural justice. The High Court while issuing a writ of certiorari acts in exercise of a supervisory and not appellate jurisdiction. The High Court will not judicially review findings of fact reached by an inferior Court or a Tribunal unless there is manifest error apparent on the face of the proceedings, or where such findings are based on disregard of the provisions of law. The Superior Courts have also interfered with the findings of the inferior Courts and Tribunals where such findings have been found to be perverse or patently erroneous, i.e. contrary to the evidence on the record. The essential prerequisites for issuing a writ of certiorari do not appear to be satisfied in this case.

12. In view of the above, the petitioner in the present case has failed to point out any jurisdictional error, illegality and irregularity in the impugned order, passed by the authority, thus no case has been made out for interference in the impugned order dated 26.12.2019 hence, all the three titled petitions are dismissed with all listed applications, accordingly.

(Y.A.)  Petition dismissed

Criminal Petition under Section 7 of Domestic Violence Act 2013

 PLJ 2022 Cr.C. (Note) 154

[Sindh High Court, Karachi]

Present: Mrs. Rashida Asad, J.

MUHAMMAD MUNIR--Applicant

versus

ANUM THANVI and 3 others--Respondents

Crl. Misc. Appln. No. 51 of 2020, decided on 24.4.2020.

Domestic violence--

----'Women and children'--Prima facie, it was enacted to provide protection to weakest class of society i.e. 'women and children', as normally, we are presumptively living a 'male dominant society' where aggrieved even does not dare to tell about 'domestic violence', because of threats of being abandoned, killed, hurt, or removed from household--This appears sole reason that legislature enacted Domestic Violence (Prevention and Protection) Act, 2013 in order to provide protection to them.                                              [Para 4] A

Domestic violence (Prevention and Protection) Act, 2013 (XX of 2013)--

----Ss. 7(3), 2(1)(a) & 13--Now I would like to discuss relevant Sections of Act 2013--Section 2(l)(a) of Act, prima facie provides definition of 'aggrieved person', which includes a woman, child or any vulnerable person in a domestic relationship with respondent and who is alleged to be victim of domestic violence, sub-section (1)(d) provides definition of 'Court', which means Judicial Magistrate of First Class--However, Section 7 empowers an aggrieved person or his authorized person or informer to file petition in respect of offence of domestic violence and Section 13 deals with grant of temporary custody of an aggrieved person--Procedure for issuance of notice with or without interim order is provided u/S. 7(3) of Act.

                                                                                             [Para 5] B

Domestic violence (Prevention and Protection) Act, 2013 (XX of 2013)--

----S. 7--Criminal petition--Application of--Production of minor--Very purpose for enactment of The Act, 2013 is to provide protection
to women, children and any vulnerable person from domestic violence--In present case, Respondent No. 1 has leveled specific allegations of domestic abuse in her petition filed under Act 2013 against applicant, which provides a procedure to deal with case--It appears that Magistrate by taking cognizance of matter only issued a notice to applicant with direction to produce child, such order is challenged by applicant--Admittedly applicant has every opportunity to defend and prove his innocence before Magistrate, thus, challenging of said order is nothing but to frustrate proceedings at this very initial stage and therefore, applicant cannot be allowed to defeat very purpose of Act for which it was enacted--Application dismissed.        [Para 6] C

Mr. Imdad Ali Sahito Advocate for Applicant.

Mr. Raj Ali Wahid Kunwar Advocate for Respondent No. 1.

Syed Meeran Shah Bukhari Additional Prosecutor General Sindh for State.

Date of hearing: 11.3.2020.

Order

Through this Cr. Misc. Application, the applicant has assailed an order dated 28.01.2020, whereby the learned XI-Additional Sessions Judge, Karachi South dismissed the revision application filed by the applicant against the orders dated 18.01.2020 and 23.01.2020 passed by learned Judicial Magistrate-VII, Karachi South, in criminal petition, filed by the Respondent No. 1 under Section 7 of the Domestic Violence (Prevent and Protection) Act, 2013 (hereinafter referred to as the Act).

2. The brief facts for disposal of the instant application are that Respondent No. 1/ mother of minor Kian Munir filed an application under Section 7 of the Act, wherein the learned Magistrate issued notice to the applicant (father of minor) for production of minor boy Kian Munir before the Court. The applicant challenged the said order on the ground of jurisdiction, but the same was dismissed vide order dated 23.01.2020, therefore the said orders were assailed by the applicant through revision before the XI-Additional Sessions Judge, Karachi South, which met the same fate, hence this Criminal Misc. Application.

3. I have heard learned counsel for the parties and have gone through the record minutely. The preamble of the Act 2013 is sufficient to describe the importance and vitality thereof which reads as under:

"WHEREAS, it is expedient to institutionalize measures which prevent and protect women, children and any vulnerable person from domestic violence and for matters connected therewith or incidental thereto."

4. Prima facie, it was enacted to provide protection to the weakest class of society i.e. 'women and children', as normally, we are presumptively living a 'male dominant society' where aggrieved even does not dare to tell about 'domestic violence', because of threats of being abandoned, killed, hurt, or removed from household. This appears the sole reason that the legislature enacted the Domestic Violence (Prevention and Protection) Act, 2013 in order to provide protection to them.

5. Now I would like to discuss the relevant Sections of the Act 2013. Section 2(l)(a) of the Act, prima facie provides the definition of 'aggrieved person', which includes a woman, child or any vulnerable person in a domestic relationship with the respondent and who is alleged to be victim of the domestic violence, sub-section (1)(d) provides the definition of 'Court', which means Judicial Magistrate of First Class. However, Section 7 empowers an aggrieved person or his authorized person or informer to file petition in respect of offence of domestic violence and Section 13 deals with grant of temporary custody of an aggrieved person. Procedure for issuance of notice with or without interim order is provided under Section 7(3) of. the Act.

6. The learned counsel for the applicant has contended that learned trial Court wrongly took cognizance of the case as proper course for parties to have custody of the child is provided under the Guardian and Wards Act, which procedure is overridden by filing the criminal petition before the learned Magistrate. It is observed that very purpose for enactment of The Act, 2013 is to provide protection to women, children and any vulnerable person from domestic violence. In the present case, Respondent No. 1 has leveled specific allegations of domestic abuse in her petition filed under the Act 2013 against the applicant, which provides a procedure to deal with the case. It appears that the learned Magistrate by taking cognizance of the matter only issued a notice to the applicant with direction to produce the child, such order is challenged by the applicant. Admittedly the applicant has every opportunity to defend and prove his innocence before the learned Magistrate, thus, challenging of the said order is nothing but to frustrate the proceedings at this very initial stage and therefore, the applicant cannot be allowed to defeat the very purpose of the Act for which it was enacted.

7. For the foregoing reasons, I see no reason to interfere in the impugned order, hence the instant criminal Misc. Application is dismissed.

(A.A.K.)          Application dismissed

Every co-sharer is owner in each and every inch of joint property until it is partitioned by metes and bounds

 PLJ 2023 Lahore 528

[Rawalpindi Bench, Rawalpindi]

Present: Mirza Viqas Rauf, J.

FAZAL KARIM and 2 others--Petitioners

versus

MEHBOOB KHAN (deceased) through his legal heirs--Respondents

C.R. No. 212-D of 2018, decided on 31.3.2023.

Civil Procedure Code, 1908 (V of 1908)--

----O.VII R. 11--Specific Relief Act, (I of 1877), S. 54--Application for rejection of plaint--Accepted--Suit for permanent injunction--Rejection of plaint--Appeal--Dismissed--Co-owner of suit property--Question of whether a suit for injunction simplicitor inter se co-sharers is proceedable or otherwise--Challenge to--Every co-sharer is owner in each and every inch of joint property until it is partitioned by metes and bounds--It is also an oft repeated principle of law that a co-sharer cannot change nature of joint property or raise construction without consent of other co-sharers--If a co-sharer is dispossessed from joint property in his/her possession by any other co-sharer, remedy lies for regaining his/her possession either in a suit under Section 9 of Specific Relief Act, 1877 or by way of a suit for partition--The matter, would become different in a case when a co-sharer intends to change nature of joint holding or threatens other co-sharers to divest from their right in joint property as co-owner--In such a case, such co-owner can institute a suit for injunction restraining former from changing nature of joint land or raising any construction upon same--In said eventuality, it is for former to first of all get joint land partitioned--Petition allowed.          [P. 534] A & B

2004 SCMR 1036, 1989 SCMR 130, NLR 1995 SCJ 169 &
2004 MLD 1844 ref.

Sardar Asmat Ullah Khan, Advocate for Petitioners.

Mirza Saqlain Abid, Advocate for Respondents.

Date of hearing: 15.3.2023.

Judgment

This petition under Section 115 of the Code of Civil Procedure (V of 1908) (hereinafter referred to as “CPC”) stems out from the order dated 26th February, 2018, whereby the learned Additional District Judge, Rawalpindi, while dismissing the appeal preferred by the petitioners, affirmed the judgment and decree dated 19th February, 2018 passed by the learned Civil Judge, Rawalpindi, resulting into dismissal of suit instituted by the petitioners, being not competent. Since suit instituted by the petitioners is dismissed while invoking the provisions of Order VII Rule 11 “CPC”, so leaving desultory details apart, only necessary facts are to be highlighted.

2. Being the co-owner of the suit property, the petitioners instituted a suit for permanent injunction, which was resisted by Mehboob Khan, predecessor-in-interest of the respondents, who instead of submitting the written statement, moved an application under Order VII Rule 11 “CPC” on the ground that suit is barred by law and it is not maintainable. The application was though contested by the petitioners but it was accepted by way of order dated 19th February, 2018. Feeling aggrieved, the petitioners preferred an appeal before the learned Additional District Judge, Rawalpindi but of no avail and the appeal was dismissed in limine through impugned order dated 26th February, 2018, hence this petition.

3. On the first date of its presentation, the petition was admitted for regular hearing on 5th March, 2018 and thereafter by way of order dated 24th November, 2021, following question was framed:

“As to whether a suit for injunction simpliciter inter-se co-sharers/co-owners is proceedable or otherwise?

4. Learned counsel for the petitioners, while addressing the above question, submitted that even a co-owner can institute a suit for injunction for the protection of his proprietary and possessory rights. He added that the petitioners have been non-suited on extraneous grounds. In support of his contentions, learned counsel has placed reliance on Muhammad Rafiq and others v. Sardar and others (2004 SCMR 1036) and Ali Gohar Khan v. Sher Ayaz and others (1989 SCMR 130).

5. Conversely, learned counsel for the “respondents” submitted that a co-sharer/co-owner is precluded to institute a suit for injunction and he has only a remedy to seek partition from the Court of law. It is added that findings of both the Courts below are concurrent and unexceptionable. Reliance to this effect is placed on Akhtar Nawaz Khan, etc. v. Danial Khan, etc. (NLR 1995 SCJ 169) and Ashiq Hussain v. Prof. Muhammad Aslam and 9 others (2004 MLD 1844).

6. Heard. Record perused.

7. The moot point involved in this case is as to whether a co-sharer/co-owner can institute a suit for injunction for the protection of his rights without seeking partition. The above question, for the first time, came under discussion before Supreme Court of Pakistan in the case of Ali Gohar Khan v. Sher Ayaz and others supra. The relevant extract from the same is reproduced below:

          “6. The sole question which needs consideration in this case is whether in the facts and circumstances of the present suit a decree for perpetual injunction can be issued. As the record stands, the respondents had purchased a portion of the land from a joint Khata and dumped stones for raising construction over the same. The report of the Commissioner though may not be germane to the pleadings of the parties but is relevant to the extent that the suit property is jointly owned by the parties and no partition in any form has yet taken place. Furthermore, the fact that the property in suit is joint and no private partition amongst the parties has taken place stands finally decided by the Civil Judge vide his order dated
9-1-1975. Therefore, it can be said without any fear of contradiction that the parties are co-sharers in the suit property. The question now is whether a co-sharer in such a situation can deal with a joint property in the manner he likes without the express permission of other co-sharers and to their detriment. The answer obviously is in the negative as it is a settled principle of law that in case of joint immovable property each co-sharer is interested in every inch of the subject-matter irrespective of the quantity of his interest. A co-sharer thus will not be allowed to act in a manner which constitutes an invasion on the right of the other co-sharers. A co-sharer in possession of a portion of the joint property, therefore, cannot change the nature of the property in his possession unless partition takes place by metes and bounds. In the circumstances we think the learned District Judge was justified in law in passing a decree of perpetual injunction in favour of the appellant.”

8. Latter in the case of Akhtar Nawaz Khan, etc. v. Danial Khan, etc. supra, a learned Bench of the Supreme Court of Pakistan comprising of three Hon’ble Judges, with a majority view, held as under:

“There is no cavil with the proposition enunciated from time to time that every joint owner is interested in every inch of the joint property so long as partition by metes and bounds does not take place among the co-sharers and each individual co-sharer is allotted his exclusive share and that every co-sharer has the right to stop the other co-sharers from changing the nature of the property to his detriment. It is equally well-established by now that every co-sharer in possession of the joint property to the extent of his share in the entire joint property has a right to make use of it in the manner he likes without hindrance by the other co-sharers and if they feel aggrieved by the conversion of the user by the co-sharers, their remedy is to go for the partition and get their share separated.”

9. In the case of Muhammad Rafiq and others v. Sardar and others supra, the Supreme Court of Pakistan, however, reiterated the principles laid down in the case of Ali Gohar Khan v. Sher Ayaz and others supra in the following manner:

          “2. The dispute relates to inheritance of one Nawab. The respondents were admittedly his daughters whereas the present petitioners are his collaterals being heirs of his brother. It was held that after the death of Nawab, the land was inherited by his widow Mst. Hakam Bibi/mother of the respondents as limited owner and on the termination of her limited interest, the property devolved on the heirs of last male owner i.e. Nawab, under the Muslim Law. Since Nawab had not left any male heir therefore, his two daughters were declared to be the owners of the property by way of inheritance according to the shares allocated to them as daughters under the Mohammedan Law and the remaining property was inherited by the respondents as collaterals. These findings have been recorded by all the Courts below and we do not find any reason as to why the present petitioners have filed this petition.

3. Learned counsel for the petitioners submitted that the only objection which the petitioners wanted to agitate was that since the respondents were not in possession of the property, therefore, the suit for mere declaration without prayer for consequential relief of possession was not maintainable.

4. We are afraid, the argument is plainly unsound. The heirs of Nawab had become joint owners of the property after the termination of limited interest of Hakam Bibi therefore, it was a case of joint ownership and suit for declaration by one of the joint owners that they were also owners in the property which right was being denied to them, was maintainable.

5. It was not necessary for any of the joint owners, to have claimed partition of the joint property at present as it could be claimed by any of the joint owners during the currency of joint ownership without limitation of any period in that behalf so long as the right of any of the joint owners was not denied which was not in dispute in this case.”

10. The question framed hereinabove also came under discussion before this Court in the case of Ashiq Hussain v. Prof. Muhammad Aslam and 9 others supra and it was resolved as under:

“6. … Mere reading of aforesaid contents of the plaint clearly shows that petitioner has not impleaded all the co-sharers as defendants in the suit. Therefore, First Appellate Court was justified to non-suit the petitioner which is in accordance with the law laid down by the Honourable Supreme Court in Khaleeq Ahmad v. Abdul Ghani and others (PLD 1973 SC 214). The relevant observation is as under:

          “A suit for possession can be brought by all the co-owners jointly. It is open however, to one of them also to sue for possession but he must join the other co-owners as defendants and the decree will be for joint possession and not in favour of the plaintiff only.”

The First Appellate Court was justified that suit of the petitioner was not maintainable against the other co-sharers except by bringing a suit for partition of joint property as the law laid down by the Division Bench of this Court in Muhammad Shafi’s case (1979 CLC 230). The relevant observation is as follows:

          “There is thus ample authority for the proposition that if a co-sharer has been in exclusive possession of a certain portion of the joint property for a long period, he cannot be dispossessed therefrom by another co-sharer except by bringing a suit for partition of the joint property.”

The aforesaid judgment of the Division Bench of this Court was considered and approved by the Honourable Supreme Court in Mst. Resham Bibi’s case (1999 SCMR 2325). The aforesaid provision of law is also supported by the law laid down in “Munshi and 2 others v. Muhammad Shafi and 30 others” (1966 Law Notes (Lahore) 58). The First Appellate Court has reversed the finding of the trial Court after proper appreciation of evidence on record in First Appeal which is the prerogative of the First Appellate Court to reappraise the evidence as Appellate Court to come to his own conclusion on the basis of evidence adduced before the trial Court by the parties and resultantly he could competently reverse the finding of the trial Court on the question of fact in issues in question. The First Appellate Court has reversed the finding with cogent reasons after reappraisal of the evidence on record as is evident from Para. No. 8 of the impugned judgment. It is established proposition of law that findings on question of fact or law howsoever, erroneous the same may be recorded by a Court of competent jurisdiction cannot be interfered with by the High Court in exercise of its revisional jurisdiction under Section 115, C.P.C. Unless such findings suffers from jurisdictional defect, illegality or material irregularity as per principle laid down by the Privy Council in N.S. Venkatagiri Ayyangar and another v. The Hindu Religious Endowments Board Madras (PLD 1949 Privy Council 26). The aforesaid judgment was considered and followed by this Court in Board of Intermediate and Secondary Education Lahore v. Syed Khalid Mahmood (1985 CLC 657) which is upheld by the Honourable Supreme Court in unreported judgment dated 31-3-1985 passed in C.P. No. 1146 of 1984. Learned counsel of the petitioner failed to point out any infirmity or illegality in the impugned judgment and also did not bring the case within the parameters prescribed by the Privy Council in the aforesaid judgment.

11. The above view was further affirmed in the case of Mst. Roshan Ara Begum and 8 others v. Muhammad Banaras and another (2016 YLR 1300). The relevant extract from the same is reproduced below:

          “6. Learned lower appellate Court has rightly held that Respondents No. 1 purchased the disputed shop from a co-sharer/paternal aunt. Hence, he also became a co-sharer in the joint property. Furthermore, it is established law that a co-sharer cannot file a suit for declaration and possession against the other co-sharer but a suit for partition can only be filed. The Hon’ble Supreme Court of Pakistan in a case reported as Mst. Sanobar Sultan and others v. Obaidullah Khan and others (PLD 2009 SC 71) has held as under:

          “A purchaser of a share out of a joint property having become a co-owner, his status as a tenant ceases and his possession will become that of a co-owner who falls within the definition of a landlord. A co-sharer is entitled to retain the possession of the joint property till partition.”

12. In the wake of survey of law on the subject, I find that in the case of Fazal and others v. Ghulam Muhammad and others (2003 SCMR 999), Bench comprising of three Hon’ble Judges of Supreme Court of Pakistan held that suit for permanent injunction is maintainable on behalf of co-sharer/co-owner.

13. After having a wade through the principles laid down from time to time with regard to the proposition in hand, it evinces that the question framed hereinabove is not so frizzy or ticklish. Law is consistent to this effect that every co-sharer/co-owner is owner in each and every inch of the joint property until it is partitioned by metes and bounds. It is also an oft repeated principle of law that a co-sharer/co-owner cannot change the nature of the joint property or raise construction without consent of the other co-sharers/co-owners. If a co-sharer is dispossessed from the joint property in his/her possession by any other co-sharer, the remedy lies for regaining his/her possession either in a suit under Section 9 of the Specific Relief Act, 1877 or by way of a suit for partition.

14. The matter, however, would become different in a case when a co-sharer intends to change the nature of the joint holding or threatens the other co-sharers to divest from their right in the joint property as co-owner. In such a case, such co-owner can institute a suit for injunction restraining the former from changing the nature of the joint land or raising any construction upon the same. In the said eventuality, it is for the former to first of all get the joint land partitioned. In the present case, the principles laid down in Fazal and others v. Ghulam Muhammad and others supra are clearly attracted and as such the trial Court as well as the appellate Court have erred in law while dismissing the suit being not maintainable and barred by law.

15. For the foregoing reasons, this petition is allowed. As a result, impugned orders dated 19th February, 2018 and 26th February, 2018 are set aside being tainted with illegalities and material irregularities. As a consequence, the suit instituted by the petitioners shall be deemed to be pending before the learned Senior Civil Judge (Civil Division), Rawalpindi, who shall either decide the same by his own or entrust it to any other Court of competent jurisdiction. Needless to observe that the Court seized with the matter shall decide the suit afresh on its own merits, strictly in accordance with law. Parties are directed to appear before the learned Senior Civil Judge (Civil Division), Rawalpindi on 15.04.2023.

(Y.A.)  Petition allowed

Application for Partition of Land

 PLJ 2023 Lahore (Note) 74

[Multan Bench, Multan]

Present: Asjad Javaid Ghural, J.

SHAJAR MUNIR--Petitioner

versus

DIRECTOR ANTI CORRUPTION etc.--Respondents

W.P. No. 14012 of 2021, decided on 22.9.2021.

Constitution of Pakistan, 1973--

----Art. 199--Application for partition of land was allowed by Assistant Tehsildar--Pendency of appeal--Submission of application before Anti-Corruption Authorities--Inquiry was conducted--On basis of an ex-parte order or objection of want of jurisdiction, it cannot be automatically presumed that said order was passed by authority for some illegal gains--The matter is still subjudice before proper forums and until its final adjudication--This Court shown reluctance to interfere in inquiry proceedings but where from facts and circumstances of case, it came on surface that such inquiry is being conducted just to harass or compel a party to enter into some compromise, this Court cannot sit as a silent spectator--It would be highly unjustified to rope petitioner and revenue official in a criminal inquiry merely at whims of a party against whom some adverse order has been passed by said authority--Petition allowed.

                                                                                      [Para 5] A & B

Mr. Sajjad Hussain Khosa, Advocate for Petitioner.

M/s. Muhammad Rafique Rajuana and Malik Zafar Mehboob Langrial, Advocates for Respondent No. 2.

Mehr Imtiaz Hussain Mirali, A.A.G. with Zahid Mubarik, ADL/ACE, Ghulam Asghar Chandio, DDI/ACE and Syed Anwar Hussain Shah, Deputy Director Prosecution.

Date of hearing: 22.9.2021.

Order

Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner prays as under:-

          “Under the view of the submissions, it is therefore, respectfully prayed that the writ petition in hand may very kindly be accepted and Respondent No. 1 be restrained to hold any inquiry till the final disposal of civil disputes pending adjudication in civil as well as revenue Courts in respect of matter, in the supreme interest of justice.

Anyother relief, which this Hon’ble Court may deem fit and proper may also be awarded to the petitioner.”

2. Learned counsel for the petitioner contends that the petitioner is owner in possession of land measuring 05K-11M comprising in Khasra No. 24/16/1, 25/1, Khata No. 27 situated at Mouza Ghulla Wala, Tehsil and District Muzaffargarh; that Respondent No. 2 was co-share in the same Khata; that the petitioner filed an application for partition of land which was allowed by Assistant Tehsildar vide order dated 19.10.2019, pursuant to which Mutation No. 1002 dated 06.07.2020 was also sanctioned in favour of the petitioner; that respondent tried to forcibly take possession of the land of the petitioner, which constrained him to file civil suit, in which the civil Court also granted interim injunction vide order dated 10.12.2020; that respondent has some terms with Additional Chief Secretary (South), as such in order to exert pressure upon the petitioner, she filed an application before Anti-Corruption Authorities, upon which Respondent No. 1 has initiated proceedings hastily; that against the partition proceedings, Respondent No. 2 has also filed appeal before the Addl. Commissioner (Revenue) Muzaffargarh, as such before the decision of said appeal, there was no justification for Respondent No. 1 to poke nose in civil dispute between the parties.

3. On the converse, learned Law Officer assisted by learned counsel for the respondents submitted that the petitioner obtained ex-parte partition order by joining hands with the revenue hierarchy; that no prejudice would be caused to the petitioner if he has not committed any kind of offence.

4. Arguments heard. Record perused.

5. Respondent No. 2 in her application before Respondent No. 1 alleged that the petitioner by joining hand with Naib Tehsildar, Muzaffargarh obtained partition order ex-parte despite of the fact that said Tehsildar has no jurisdiction to adjudicate upon the matter. If that was so Respondent No. 2 is at liberty to challenge the said order at Appellate Forum, which admittedly has been availed and her appeal is pending adjudication before the Addl. Commissioner (Revenue). Merely, on the basis of an ex-parte order or objection of want of jurisdiction, it cannot be automatically presumed that the said order was passed by the authority for some illegal gains. The matter is still subjudice before the proper forums and until its final adjudication, it would be pre-mature to assume that some wrong doing was committed by revenue official by joining hands with opposite side. Generally, this Court shown reluctance to interfere in the inquiry proceedings but where from the facts and circumstances of the case, it came on surface that such inquiry is being conducted just to harass or compel a party to enter into some compromise, this Court cannot sit as a silent spectator. It would be highly unjustified to rope the petitioner and revenue official in a criminal inquiry merely at the whims of a party against whom some adverse order has been passed by the said authority.

6. For what has been discussed above, this writ petition is allowed and consequently Respondent No. 1 is restrained to proceed further on the application of Respondent No. 2 until the fate of decision of partition dated 19.10.2021 was finally determined by concerned forums.

(Y.A.)  Petition allowed

Suit for Cancellation of Partition

 PLJ 2023 Quetta 130

Present: Rozi Khan Barrech, J.

MUHAMAMD YAHYA KHAN--Petitioner

versus

AKRAM SHAH and others--Respondents

C.R.P. Nos. 614 & 672 of 2021, decided on 14.6.2022.

Civil Procedure Code, 1908 (V of 1908)--

----O.VII R. 11--Specific Relief Act, (I of 1877), Ss. 12, 39, 42 & 54--Suit for declaration cancellation of partition, transfer of mutation specific performance--Application for rejection of plaint--Allowed-- Appeal--Allowed--case was remanded--Challenge to--Written statements of petitioners are on record, and matter was fixed for evidence, but trial Court, despite involvement of serious disputed questions of facts in matter, has rejected plaint of Respondent Nos. 1 to 9 without assigning any valid reason-- As per observations and directions of this Court, all disputed questions of fact and law were directed to be resolved on merits, but trial Court has not considered this aspect of matter and accepted application under Order VII Rule 11, CPC of petitioners--Petition dismissed.          [Pp. 132, 133] A & D

Maxim--

----Ubi jus ibi remedium--The maxim ubi jus ibi remedium (where there is right, there is a remedy) is a fundamental principle of law that any person having right has a corresponding remedy to institute suits in Court of law unless jurisdiction of Court is barred by virtue of provisions of this Section 9 of C.P.C.      [P. 132] B

Civil Procedure Code, 1908 (V of 1908)--

----O.VII R. 11--Controversial questions--In case of controversial question of facts or law provisions of Order VII Rule 11, CPC could not be invoked; rather proper course for Court in such cases was to frame issues on such questions and decide same on merits in light of evidence.                       [P. 133] C

Mr. Muhammad Akram Shah, Advocate for Petitioners (in C.R.P. No. 614 of 2021).

Mr. Mohibullah, Advocate for Respondent Nos. 2-C to 20-F (in C.R.P. No. 614 of 2021).

Mr. Saif-ur-Rehman, Advocate for Respondent Nos. 11 to 17 (in C.R.P. No. 614 of 2021).

Mr. Muhammad Ali Rakhshani, Addl. for Respondent Nos. 18 and 19 (in C.R.P. No. 614 of 2021).

Mr. Jameel Ramzan, Advocate for Petitioner (in C.R.P. No. 672 of 2021).

None present for Respondents (in C.R.P. No. 672 of 2021).

Date of hearing: 27.5.2022.

Judgment

By this single judgment, I proposed to dispose of Civil Revision Petition Nos.614 of 2021 and 672 of 2021 arises out of order dated 22.09.2021 (hereinafter “the impugned Order”) passed by learned Additional District Judge, Kuchlak, (hereinafter “the appellate Court”) whereby the learned appellate Court while accepting the appeal filed by the plaintiff/Respondent Nos.l to 9 setting aside the order dated 26.06.2021 (hereinafter “the Order”) passed by learned Civil Judge, Kuchlak, (hereinafter “the trial Court”) and the case was remanded to the learned Civil Judge for trial.

2. Precisely, the facts necessary for adjudication of the instant petition are that the plaintiff/Respondent Nos. 1 to 9 in both Civil Revision Petitions filed a suit for declaration, cancellation, partition, transfer of mutation, specific performance, injunction and consequential relief before the trial Court against the petitioner asserting therein that the property in dispute bearing Khasra No. 1071, 1201/1132 situated in Mahal Viala Samali Tehsil and District Quetta was purchased by the predecessor-in-interest of plaintiff vide agreement dated 15.01.1995, however, subsequently the said agreement was not acted upon, and the property in question remained in the name of the predecessor of the private defendants.

3. The suit was contested by the petitioner/appellant by means, of filing separate written statements on legal as well as factual grounds. During the pendency of the suit, the petitioner applied for rejection of plaint through an application under Order VII Rule 11, CPC raising the plea that the “so-called agreements have no connection with the property in dispute mentioned in the plaint. On the first instance, specific performance of the agreements cannot be carried out as the agreements are vague and the khasra numbers mentioned above are not included in the agreement; furthermore, the provisions of Section 172 with regard to correction of entries is within the sole jurisdiction of revenue authorities as such the suit are barred under Section 172 of Land Revenue Act, 1967”.

4. The application under Order VII Rule 11, CPC found favour with the learned trial Court, which rejected the plaint vide order dated 26.06.2021. In appeal, the order was set aside, and the case was remanded to the learned trial Court in accordance with the law.

5. Arguments from both sides, pro and contra, have been heard, and relevant record annexed with the revision petition was carefully perused.

6. I have also gone through the contents of the plaint with the able assistance of the learned counsel for the parties and came to the conclusion that in order to reject a plaint, the same must be shown to be barred under some law on the basis of averments made in the plaint; Court at that stage would be neither entitled to look into the pleas raised by the defendant nor could examine the merits of allegations made in the plaint. It is a settled proposition of law that every allegation made in the plaint has to be accepted as correct while rejecting the plaint under Order VII Rule 11, CPC; the fact that the plaintiff might not ultimately succeed in establishing the allegations in the plaint could not be a ground for rejecting the plaint under Order VII Rule 11 CPC.

7. As observed above, in this matter, written statements of the petitioners/defendants are on record, and the matter was fixed for evidence, but the learned trial Court, despite the involvement of serious disputed questions of the facts in the matter, has rejected the plaint of the plaintiff/Respondent Nos. 1 to 9 without assigning any valid reason. During the course of arguments, I have specifically asked the question from the learned counsel for the petitioners to point out any averment of the plaint, which appears to be hit/barred by any law, but he has no satisfactory answer with him; however, he submitted that subject matter of the suit pertains to correction of mutation entries, and in this respect, revenue authorities ought to have been approached. I am not impressed with these arguments, for the reasons that jurisdiction of the Civil Court under Section 9 of CPC is very much clear that Civil Court has the jurisdiction to try any suit which comes within the ambit of Section 9, CPC with respect to any official act by the defendants. The maxim ubi jus ibi remedium (where there is right, there is a remedy) is a fundamental principle of law that any person having the right has a corresponding remedy to institute suits in the Court of law unless the jurisdiction of the Court is barred by virtue of the provisions of this section, Civil Courts are granted general jurisdiction to try all suits of a civil nature in respect of the enforcement of civil rights unless their jurisdiction is either expressly or impliedly barred. The term Jurisdiction refers to the legal authority to administer justice in accordance with the means provided by law and subject to the limitations of Special Tribunals, the Civil Courts being Courts of ultimate jurisdiction, will have the jurisdiction to examine the acts of such forums to see whether their acts are in accordance with law or are illegal or even mala fide.

8. After going through the pleadings of the parties, it appears that there is a title dispute between the parties and serious disputed questions of facts are involved in this matter in respect of ownership of the property in dispute.

9. The genuineness of the alleged agreement required evidence, and without recording of evidence, the dispute between the parties cannot be resolved.

10. In case of the controversial question of facts or law provisions of Order VII Rule 11, CPC could not be invoked; rather proper course for the Court in such cases was to frame issues on such questions and decide the same on merits in the light of the evidence.

11. It is worthwhile to mention here that the matter with regard to the rejection of the plaint was previously raised in the first round of litigation, and the application under Order VII Rule 11, CPC was dismissed on 04.02.2017, whereafter the same was assailed before this Court by the parties in Civil Revision No. 37/2017 and 62/2017, and thus this Court disposed of both the Civil Revisions by common judgment dated 17.12.2018 with the following observations:-

          “Perusal of pleadings of the parties and the available record reveals that while rejecting the application under Order VII Rule 11, CPC through a speaking order, the trial Court has not committed any illegality or irregularity warranting interference by this Court in its provisional jurisdiction.

          For the above reasons, both the Civil Revision Petitions are dismissed with no order as to cost. The earlier interim order dated 23.02.2017 passed by the Court stands re-called.

          The trial Court is directed to proceed with the trial expeditiously. The trial Court is expected to decide the suit on merits in accordance with law at the earliest”.

12. As per observations and directions of this Court, all the disputed questions of fact and law were directed to be resolved on merits, but the learned trial Court has not considered this aspect of the

matter and accepted the application under Order VII Rule 11, CPC of the defendants/petitioners.

In view of the above circumstances, the Impugned order dated 22.09.2021 passed by the learned Additional District Judge, Kuchlak, is not suffering from any illegality and irregularity and is not liable to be interfered with; therefore, the civil revision petitions filed by the petitioners are hereby dismissed, and the impugned order is maintained. Parties to bear their own costs.

(Y.A.)  Petition dismissed

Judgment on Punjab Partition of Immovable Property Act 2012

 PLJ 2023 Karachi 124 (DB)

Present: Irfan Saadat Khan, and Zulfiqar Ahmed Khan, JJ.

SEHRISH HANIF and others --Appellants

versus

MUHAMMAD AZIZ and others--Respondents

HCA No. 58 of 2023, decided on 21.8.2023.

Civil Procedure Code, 1908 (V of 1908)--

----O.XX R. 13--Punjab Partition of Immovable Property Act, 2012,
S. 4--Specific Relief Act, (I of 1877), S. 54--Suit for administration, partition and permanent injunction--Legal heirs--Partition of property--Appointment of Nazir--Private sale--Public auction—Raising of objections--Valuation of property--Potential buyer--Sale offer--Opportunity to bring prospective buyer--Failed to--Since there were a number of legal heirs left by of late Mst. Ghulam Fatima, it was impossible to partition subject property, which comprises of 235 Sq.Yds only--It is also an admitted fact that a number of legal heirs of Late Muhammad Hanif, other than appellants, have already withdrawn amounts of their respective share from Nazir--It is also an admitted fact that several opportunities were provided by Single Judge, while hearing matter to appellants on their request to bring any prospective buyer interested in purchasing property for an amount Rs. 03 crores or to match price themselves but appellants have utterly failed to do so--Neither any amount was deposited by appellants with Nazir as required under rules nor have matched sale price offered by Respondent No. 1 or have brought any prospective buyer to purchase property, price offered by Respondent No. 1 was accepted and confirmed--Order of Single Judge, impugned in instant HCA does not warrant any interference and is found to be in accordance with law--The instant HCA is found to be bereft of any merit--Petition dismissed.     [Pp. 128 & 129] A, B & C

Mr. Fateh Muhammad, for Appellants.

Kh. Saiful Islam, Advocate Respondent No. 1.

Nemo for Respondents No. 2 to 9.

Date of hearing: 15.8.2023.

Judgment

Irfan Saadat Khan, J.--This High Court Appeal (HCA) has been filed impugning the order dated 15.02.2023 passed by the learned Single Judge in Suit No. 1080/2014.

2. Briefly stated the facts of the case are that the Respondent No. 1 filed a suit for administration, partition and permanent injunction in respect of the property bearing House No. A-462, Block-8, Karachi Administration Employee’s Cooperative Housing Society, measuring 235 sq.yds. The said property was in the name of Mst. Ghulam Fatima w/o Muhammad Suleman, who had expired on 29.01.1993. Mst. Ghulam Fatima left the present Respondent No. 1 and Muhammad Hanif, her two sons as her legal heirs at the time of her death. The present Appellants and the Respondents No. 2 to 9 are the legal heirs of Muhammad Hanif (son of late Ghulam Fatima) who also has expired on 27.12.2013. Due to difference amongst the present Respondent No. 1 and the legal heirs of Muhammad Hanif, the above referred suit Bearing No. 1080/2014, was filed. The matter proceeded before the learned Single Judge who vide order dated 22.12.2016 appointed Nazir as Administrator of the property and was also directed to make an attempt for private sale amongst the parties and if not, then sell out the same through public auction. Objections were raised time and again by the parties with regard to the valuation of the property. The Nazir in his report dated 16.09.2021 pointed out that the Respondent No. 1 has agreed to purchase the property at Rs. 3 crore however the appellants have objected to the same. The appellants before the learned Single Judge submitted that the property is worth Rs. 4,25,00,000/-. The learned Single Judge then vide order dated 11.08.2022 directed the Appellant No. 1, (who was Defendant No. 12 in the suit) to prepare a pay-order of Rs. 4,25,00,000/- in the name of the Nazir of this Court to show her keenness to purchase the property and to bring the same on the next date of hearing. Thereafter a number of opportunities were given to the appellants to either deposit the amount of Rs. 4,25,00,000/- or to bring some potential buyer, if they were of the view that the property was worth
Rs. 4,25,00,000/- or more, so that the suit with regard to partition could be disposed of and proper and respective share of each legal heir, in accordance with law and shariah, may be distributed accordingly. It is an admitted position that inspite of giving several chances, the present appellants have failed to either abide by the instructions of the Court or to bring any prospective buyer of the suit property in respect of the amount, which according to them would fetch if sold in open market. It is under these circumstances that the learned Single Judge vide impugned order confirmed the sale offer as given by the Respondent No. 1 and dismissed all the listed and pending applications, as having become infructuous, by confirming the sale at Rs. 3 crore offered by the Respondent No. 1.

3. Mr. Fateh Muhammad, attorney of all the Appellants, has appeared and stated that as per Nazir’s report dated 19.5.2022 the property was considered to be between Rs. 3,75,00,000/- to
Rs. 4,25,00,000/-, hence confirmation of the sale at Rs. 3 crore by the learned Single Judge was not in accordance with law. He stated that the order may be set aside and the Nazir may be directed to cancel the sale certificate as the value of the property is more than Rs. 3 crore, which was incorrectly accepted by the learned Single Judge and some time may be given to the appellants to bring some prospective buyer for purchase of the property at a higher figure then that of Rs. 3 crore.

4. He next stated that serious monetary prejudice would be caused to the appellants, if respective share of each legal heirs is worked out at Rs. 3 crore. He stated that no doubt the appellants have failed to bring any prospective buyer for above Rs. 3 crore and have not complied with the order dated 11.8.2022, passed by the learned Single Judge, but if some time is granted to them they are willing to bring some prospective buyer of the property, which according to him is worth approximately Rs. 5 crore. He therefore, request that the order of the learned Single Judge may be set aside and some time may be given to the appellants in respect of the prayer made by them in the interest of justice.

5. Khawaja Saif-ul-Islam, Advocate has appeared on behalf of the Respondent No. 1 and vehemently opposed the present appeal. He stated that several opportunities were provided to the appellants to bring a purchaser, who is ready and willing to purchase the property above Rs. 3 crore, but the appellants have miserably failed to do so. He stated that though it has been averred time and again by the appellants that the property is more than Rs. 3 crore and at one stage has shown their willingness either to purchase the same or to match the price but have failed to do so despite the fact that a number of opportunities were given to them by the learned Single Judge, which clearly proves that the appellants were only interested in delaying the process and to linger on the same unnecessarily. Whereas, according to him, the Respondent No. 1 has duly deposited Rs. 83,00,000/- with the Nazir, which has been acknowledged by the Nazir in his report dated 22.10.2022 and a substantial amount deposited by the Respondent
No. 1 has already been distributed among a number of legal heirs of late Muhammad Hanif, who are either brothers or sisters of the present appellants.

6. He stated that from the record, it would be seen that despite given several chances to the appellants they have not deposited any amount with the Nazir in respect of the value, which according to them is the true market price of the said property. He stated that it was under these circumstances that the learned Single Judge quite rightly passed the order by confirming the sale in favour of the Respondent No. 1 on the amount offered by him. He therefore, finally prayed that in view of the above facts the instant HCA, alongwith the listed applications, may be dismissed by imposing cost upon the present appellants.

7. Nobody has appeared on behalf of the Respondents No. 2
to 9.

8. We have heard the Attorney of the appellants as well as the learned counsel for Respondent No. 1 at some length and have also perused the record.

9. Perusal of the record reveals that since there were a number of legal heirs left by of late Mst. Ghulam Fatima, it was impossible to partition the subject property, which comprises of 235 Sq.Yds only. When the matter filed by the present Respondent No. 1 proceeded before the learned Single Judge in respect of partition it was agreed between all the contesting parties before the Court that let the property be sold out to a prospective buyer, be that any one of the parties, and to distribute the shares out of the sale proceeds of the property amongst all the legal heirs as per sharia. Though a compromise application was also filed by the parties with the understanding that the property would be sold out and thereafter respective shares would be distributed amongst the legal heirs; however it is an admitted position that since the rates, which were as per the legal heirs would fetch in the open market if the property is sold, could not be obtained in spite of several attempts, the plaintiff as well as the defendants in the suit were given the chance either to purchase the property by themselves, or to bring some prospective buyer in this regard. Record also reveals that the Nazir in his report has also opined that the value of the property ranges between the
Rs. 3,75,00,000/- to Rs. 4,25,00,000/-. It is also submitted in the report that despite making hectic efforts and giving advertisement in the newspapers no one approached the Nazir of this Court to show interest in purchasing the said property. Under these circumstances the Respondent No. 1 offered to purchase the property at Rupees 03 crores and to show his bona fides substantial amount was also deposited by him with the Nazir.

10. It may be noted that the present appellants have miserably failed to either purchase the property by themselves or to bring any prospective buyer who could purchase the property for an amount above Rs. 03 crores offered by the Respondent No. 1. It is also an admitted fact that a number of legal heirs of Late Muhammad Hanif, other than the appellants, have already withdrawn the amounts of their respective share from the Nazir. It is also an admitted fact that several opportunities were provided by the learned Single Judge, while hearing the matter to the appellants on their request to bring any prospective buyer interested in purchasing the property for an amount above Rs. 03 crores or to match the price themselves but the appellants have utterly failed to do so.

11. It is in this background that the learned Single Judge came to the conclusion that since neither any amount was deposited by the appellants with the Nazir as required under the rules nor have matched the sale price offered by the Respondent No. 1 or have brought any prospective buyer to purchase the property, the price offered by the Respondent No. 1 was accepted and confirmed. Hence under these facts and circumstances, we are of the view that the order of the learned Single Judge, impugned in the instant HCA does not warrant any interference and is found to be in accordance with law. The instant HCA is found to be bereft of any merit which stands dismissed along with the listed and pending application. No order as to cost.

(J.K.)   Petition dismissed