ORDER SHEET

Order Sheet

IN THE HIGH COURT OF SINDH KARACHI

Suit No. 419 of 2014

Date	Order with signature of Judge

Mr. Abdul Shakoor, advocate for the plaintiff.

Mr. Asim Iqbal, advocate for defendants 2, 4 & 5.

Mr. Noman Jamali, advocate for defendant No.3.

Mr. Ejaz Khattak, advocate for defendant No.10.

Syed Iftikhar Husain, advocate for KMC.

Mr. Ghulam Hussain, Accounts Assistant in the office of Official Assignee.

Date of hearing : 07.10.2015.

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ORDER ON C.M.A. No. 12950 of 2015

Through CMA No.12950/2015, the plaintiff has prayed that the Official Assignee be restrained from selling immovable properties ; namely, Plot No. D-173, Block-5, Clifton, Karachi, and House No. D-31, Block-9, Clifton, Karachi, (‘the said properties’). Mr. Abdul Shakoor, learned counsel for the plaintiff, refers to the order passed on 13.02.2015, whereby the parties were directed to appear before the Official Assignee for the purposes of inquiry and investigation of accounts. He submits that the Official Assignee was not authorized to sell any of the properties which are the subject matter of this Suit as his mandate was limited only to the extent of holding an inquiry and investigation. He further submits that despite the above position, the Official Assignee has taken steps for selling the said properties. In support of this submission, he refers to the diary dated 07.09.2015 of the Official Assignee, whereby an evaluator was appointed to evaluate the said properties. It is urged by him that in case the Official Assignee is not restrained as prayed in this application, the plaintiff shall be seriously prejudiced.

2. Mr. Asim Iqbal, learned counsel for defendants 2, 4 and 5, submits that in prayer No.8, the plaintiff himself has prayed for the sale of the said properties and also for distribution of shares therein to all the legal heirs as per Shariah. He also refers to paragraph 9 of the preliminary decree passed in this matter, whereby it has been ordered that the immovable and movable properties of the deceased shall be sold with the approbation of this Court. He submits that after passing of the preliminary decree, sale of the properties under Order XX Rule 13 CPC cannot be stopped. He further submits that the plaintiff is enjoying possession of the said properties to the exclusion of all other legal heirs, and in order to prolong his possession, this application has been filed which is malafide as all the legal heirs are entitled to their respective shares out of the sale proceeds of the said properties. He relies upon the case of Asghar Ali Vs. Mrs. Zohrabi and another, 2000 MLD 122 in support of his submissions, wherein it was held by a learned Division Bench of this Court that preliminary decree for administration of assets of a deceased person cannot be withheld only on assertion that one of the properties left by the deceased, which stood in the name of the deceased at the time of her death, was purchased in the name of the deceased by one of the legal heirs from his own funds.

3. While adopting the arguments advanced by Mr. Asim Iqbal, Mr. Noman Jamali, learned counsel for defendant No.3, submits that preliminary decree in respect of the said properties was passed as admittedly there was/is no dispute in respect thereof, and no such decree was passed in respect of any of the disputed properties, the dispute whereof will be decided after recording of evidence. He further submits that the scope of Order XX Rule 13 CPC is very wide, which includes sale of properties after passing of a preliminary decree.

4. I have considered the submissions made by the learned counsel for the parties. The said properties are described in paragraphs 5 and 6 of the plaint. Perusal of the order passed on 13.02.2015 shows that it was held therein that this Suit has become a Suit for administration of the properties left by the deceased parents of the plaintiff and defendants 2 to 5 as admittedly the said properties belonged to their deceased parents. In view of the above, the learned Official Assignee was appointed as the administrator of all the properties ; parties were directed to appear before him for the purposes of proper inquiry and investigation of accounts ; and, preliminary decree was passed in term of Order XX Rule 13 CPC. In pursuance of the said order, the preliminary decree was drawn, inter alia ordering sale of the said properties. It was conceded by the learned counsel for the plaintiff that the aforesaid order or the preliminary decree passed in pursuance thereof, have attained finality as the same have not been challenged by the plaintiff.

5. Sub-Rule (1) of Rule 13 of Order XX CPC provides that where a Suit is for an account of any property and for its due administration under the decree of the Court, the Court shall, before passing the final decree, pass a preliminary decree, ordering such accounts and inquiries to be taken and made, and giving such other directions as it thinks fit. Since a preliminary decree in respect of the said properties has been passed which admittedly has attained finality, further proceedings pursuant to Rule 13 ibid, including the sale of the said properties, are inevitable. There is nothing on record to suggest that the learned Official Assignee / administrator has acted beyond his mandate or in violation of Rule 13 ibid, nor has the learned counsel for the plaintiff been able to substantiate this assertion.

6. It has been admitted in paragraphs 5 and 6 of the plaint that the said properties were not only acquired by the late father the plaintiff and defendants 2 to 5 with his own funds in the name of his wife, the mother of the above parties, but their late father also constructed bungalows thereon with his own funds. In prayer No.1, the plaintiff has prayed that defendants 1 and 3 be declared as benami owners of the said properties. In prayer No.2, he has prayed for a declaration that all the properties described therein, including the said properties, were acquired from the funds of his late father benami in the names of defendants 1 and 3. Vide prayer No.3, he has prayed for a declaration that all the properties described therein, including the said properties, are owned by defendants 1 and 3 as benamidars, and all the legal heirs of their late father are entitled to their respective shares therein as per Shariah. In prayer No.8, the plaintiff himself has prayed that the Nazir of this Court be appointed as Receiver of all the immovable benami properties, including the said properties, with powers to take over the same, sell the same and distribute the shares therein to all the legal heirs as per Shariah.

7. Perusal of the above averments and prayers made in the plaint clearly shows that it is not the case of the plaintiff that he is the sole or absolute owner of the said properties, as the case set up by him is that the said properties have been inherited by all the legal heirs of his late father and all the legal heirs are entitled to their respective shares therein as per Shariah. From the above, it is also clear that a definite dispute in respect of the said properties amongst the legal heirs has been alleged by the plaintiff. It has not been disputed by the plaintiff that this is a Suit for administration, and the preliminary decree passed herein for the sale of the said properties has been accepted by him. In view of his own pleadings and the above admitted position, the plaintiff cannot be allowed to circumvent the proceedings under Rule 13 ibid or to seek suspension of a decree that has attained finality. It is well-settled that parties are bound by their pleadings ; a party cannot be permitted to raise an altogether new ground of attack or defence by departing from its previous pleadings ; and, in civil proceedings a party is not permitted to deviate from its pleadings. Reference may be made to Sh. Fateh Muhammad V/S Muhammad Adil and others, PLD 2007 SC 460, Mst. Jannat Bibi V/S Sher Muhammad and others, 1988 SCMR 1696, and Mst. Murad Begum etc. V/S Muhammad Rafiq etc., PLD 1974 SC 322. In view of the above discussion, I am of the firm view that this application is not maintainable and as such is liable to be dismissed.

Foregoing are the reasons of the short order announced by me on 07.10.2015, whereby this application was dismissed.

J U D G E