Order Sheet

 

IN THE HIGH COURT OF SINDH KARACHI

 

Second Appeal No.06 of 2014

 

            Appellant                   :   Mrs. Samina Qasim through

                                                    Mr. Dildar M. S. Shaikh, Advocate.

 

            Respondent No.1    :   Mst. Jamila Naheed, called absent.

 

            Respondent No.2    :   District Registrar Karachi, called absent.

 

            Date of hearing        :   05.11.2018

 

J U D G M E N T

 

NADEEM AKHTAR, J. – This Second Appeal is directed against the judgment and decree dated 29.09.2011 passed by learned Ist Senior Civil Judge Karachi Central in Suit No.345/2006 whereby the said Suit filed by respondent No.1 against the appellant and respondent No.2 was decreed as prayed, as well as against the judgment and decree dated 19.12.2013 passed by learned IVth Additional District Judge Karachi Central in Civil Appeal No.148/2012 whereby the said appeal filed by the appellant was dismissed.

 

2.         Relevant facts of the case are that respondent No.1 Mst. Jamila Naheed filed Suit No. 345 of 2006 against the appellant and respondent No.2 praying that she may be declared as the lawful administrator of Shop No.23-A, Plot No.SC-23/5 out of Plot No.SC-23, Sector 11-H, North Karachi Township, Karachi, (‘suit property’) ; a direction be issued to the defendant / appellant to surrender the indenture of lease in respect of the suit property for cancellation ; the District Registrar Karachi / defendant No.2 be directed to cancel the said sub-lease ; and, defendant / appellant be restrained from creating third party interest in the suit property. It was the case of the plaintiff / respondent No.1 that the land on which the suit property was constructed was owned by one Muhammad Abdul Bashir (‘the deceased’) and after his death she was appointed as administrator in respect of his above mentioned plot in SMA No.46/1998 by this Court ; the sub-lease in respect of the suit property was executed by the attorney of the deceased and not by the deceased, therefore, the same was liable to be cancelled ; and, execution and registration of the said sub-lease was managed by the appellant in a fraudulent manner. The above Suit was contested by the appellant, however, the same was decreed by the learned trial Court as prayed by respondent No.1 vide impugned judgment and decree dated 29.09.2011, and the appeal filed by the appellant against the said decree was dismissed by the learned appellate Court vide impugned judgment and decree dated 19.12.2013.

 

3.         As respondent No.1 could not be served in this appeal through ordinary modes, notice was published in newspaper on 22.10.2015 in pursuance of order dated 24.08.2015, whereafter service upon respondent No.1 was held good vide order dated 17.12.2015. Despite the above, respondent No.1 chose to remain absent and did not contest the present appeal.

 

4.         It was contended by Mr. Dildar M. S. Shaikh, learned counsel for the appellant, that the Letters of Administration granted in favour of respondent No.1 in SMA No.46/1998 have been revoked by this Court vide order dated 09.03.2018 passed in the said SMA. It was further contended by him that the aforesaid order of revocation was passed on an application bearing CMA No.120/2014 filed by the present appellant under Section 263 of the Succession Act, 1925, as an objector in the aforesaid SMA. He has placed on record a copy of the certified copy of the aforesaid order in support of his above contention. Perusal of the said order dated 09.03.2018 shows that vide order dated 12.12.2017 passed in SMA No.46/1998, Nazir of this Court was directed to seek verification from the Sub-Registrar concerned regarding the sub-lease of the suit property registered in the name of the present appellant. Vide report dated 01.03.2018, it was confirmed by the Nazir that the said sub-lease was executed and registered in the name of the appellant. In view of the above, it was observed in the aforesaid order of revocation dated 09.03.2018 that there does not seem to be any doubt that at the time of his death the suit property did not vest in the deceased, but vested in the objector / appellant ; and, thus the inclusion of the suit property in the Letters of Administration was without any just cause and to that extent the Letters of Administration were liable to be revoked under Section 263 of the Succession Act, 1925. In view of the above, the Letters of Administration granted in favour of respondent No.1 by this Court in SMA No.46/1998 were revoked vide aforesaid order dated 09.03.2018.

 

5.         I have examined the Letters of Administration granted in favour of respondent No.1 in SMA No.46/1998 which shows that the entire plot viz. SC-23 on which the suit property is constructed was included in the Letters of Administration. Such inclusion of the suit property by respondent No.1 in the Letters of Administration has been held to be without any just cause vide aforesaid order dated 09.03.2018 passed in SMA No.46/1998. Since the entire basis of the respondent No.1’s claim / Suit was that she was the administrator of the suit property by virtue of the aforesaid Letters of Administration, the effect of revocation of the said Letters of Administration granted earlier in favour of respondent No.1 would be that the impugned judgment and decree passed in her favour on the basis of such claim / Letters of Administration cannot be allowed to remain in the field and the same are liable to be set aside.

 

6.         Foregoing are the reasons of the short order announced by me on 05.11.2018 whereby this second appeal was allowed with costs throughout and the impugned judgments and decrees were set aside.

 

 

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       J U D G E

*II A 06-14/Judgments Single/Court Work/E*