ORDER SHEET
IN THE HIGH COURT OF SINDH, KARACHI
Suit No.831 of 2011
____________________________________________________________
Date Order with signature of Judge.
1. For hearing of CMA No.95/12,
2. For hearing of CMA No.562/13,
3. For examination of parties/settlement of issues.
Mr. Obaid-ur-Rehman, adv; for the plaintiff,
Mr. Zayyad Khan Abbasi, adv; for deft. Nos.1 & 2.
_____________
15.12.2015.
1 & 2) Through listed CMAs the plaintiff/applicant prays that: decree instant suit and reject the claims filed by the defendant Ehteshamullah Khan in his caveat.
2. Learned counsel for the plaintiff/applicant contends that judgment passed in HCA is per incuriam; procedure of recording of evidence in present matter is different than ordinary case. Therefore caveat filed in suit may be dismissed and suit may be decreed. In support of his contention he has relied upon the cases reported in AIR 1994 Gujarat 42, 2003 SCMR 965, PLD 1970 (Dacca) 404, PLD 1957 (Dacca) 548, AIR 1928 (Madras) 803, AIR 1937 (Bombay) 397, AIR 1964 (Calcutta) 34, AIR 1975 (Madras) 330, AIR 1986 (Rajasthan) 24, AIR 1931 (Madras) 37 and PLD 2004 Karachi 52.
3. Whereas, learned counsel for the defendant Ehteshamullah Khan contends that the order passed in High Court Appeal is binding upon this Court and it is matter of record that Amanullah, died on 04.05.2005 by leaving legal heirs including Inamullah (father of applicant), who died on 25.5.2005. It is further asserted that gift deed in favour of the applicant/plaintiff is fraudulent document; prima facie, entry in favour of Amanullah is suspicious.
4. At the very outset it appears that one SMA was preferred with regard to property left by deceased Amanullah Khan, wherein the above referred party filed caveat but his claim was declined and SMA was allowed thereafter they preferred High Court Appeal No.199 of 2010 which was disposed of in the following terms:-
“Today Mr. Usman Shaikh assisted by Muhammad Altaf conceded that after the filing of the caveat in SMA the learned single judge was bound to convert the SMA into a suit and then disposed of in accordance with law and submitted that he will have no objection, if the above order is set aside with directions to the learned single judge to proceed in accordance with law. He however, submitted that letter of administration was sought for two properties and in the caveat the ownership of only one property has been challenged and therefore, the order may be set aside in respect of that one property and in respect of the other property the letter of administration as issued may be modified to that extent.
Since the proposal is reasonable, therefore, we modify the impugned order to the extent that the letter of administration will be issued only for one property i.e. office No.415, 4th floor, Hoor Centre, Napier Road, Karachi and the second property i.e. House No.C-90, Sect or 31-F, Street No.5, Dar-us-Salam, Cooperative Housing Society Ltd. main Korangi Road, Karachi will be deleted from the letter of administration and will be decided in accordance with law after converting the matter relating to that property into a suit. The learned single judge is requested to start the proceedings of the case expeditiously and try to dispose of the suit as soon as possible”.
Perusal of above, it prima facie reflects that SMA filed before this Court was ordered to have been converted into suit by the appellate Authority and legality of the order, being not challenged, has attained finality. Thus, the matter regardless of its title (as was at time of filing) is a suit which has got its own peculiar procedure for trial much different from the one, provided for a letter of Administration within meaning of Succession Act. It is worth to
mentioned here that SMA proceedings are summary in nature and mode of procedure of evidence is entirely different in both proceedings.
5. It is also surfaced that defendant Ehteshamullah Khan has also filed suit for administration; both suits are fixed for settlement of issues. Accordingly this court cannot sit over the order of its appellate authority; in consequence of above discussion and legal position, both the listed applications are dismissed.
Shahid J U D G E