IN THE HIGH COURT OF SINDH, CIRCUIT COURT HYDERABAD
Civil Revision Application No. 32 of 2023
( Abdul Rasheed & Others v. Ms. Khato & Others )
Applicant(s): Abdul Rasheed et al
Through Mr. Abdul Aziz Memon, Advocate
Respondent No.1: Ms. Khato
Through Ali Sher Baloch, Advocate
Official Respondents: Province of Sindh et al
Through, Mr. Allah Bachayo Soomro
Additional Advocate General, Sindh
Date(s) of Hearing: 16-8-2024 & 30-8-2024
Date of Decision: 11-10-2024
O R D E R
1. Sana Akram Minhas, J: The Applicants, through this Revision Application, seek to challenge the concurrent findings of both lower courts rendered against them, which have ruled that Respondent No.1 is a legal heir alongside the Applicants. They are aggrieved by the following:
i) The Judgment dated 18.10.2022 and Decree dated 19.10.2022 (“Impugned Judgment of Trial Court”), passed by the 2nd Senior Civil Judge, Tando Allahyar, which decreed the First Class Suit No.64/2021 (Ms. Khato v. Abdul Rasheed & Others) ("Underlying Suit") filed by private Respondent No.1 (Plaintiff in Underlying Suit) against the Applicants and official Respondents No.2 & 3 (Defendants in Underlying Suit);
ii) The Judgment dated 5.12.2022 and Decree dated 8.12.2022 (“Impugned Judgment of Appellate Court”), issued by the District Judge, Tando Allahyar, dismissing the Applicants' Civil Appeal No.156/2022 (Abdul Rasheed & Others v. Ms. Khato & Others) and affirming the Trial Court’s judgment and decree.
Underlying Key Facts
2. The Respondent No.1 and her late husband, Abdul Rehman (“Deceased Abdul Rehman”), who passed away around 2015, had no surviving children. The Applicants are the siblings of the said Deceased.
3. Following the death of her husband Abdul Rehman, the Respondent No.1 approached the Respondent No.2 (Mukhtiarkar) to obtain an heirship certificate for the Deceased Abdul Rehman. However, the Respondent No.2 declined to issue the certificate and advised her to seek a declaration from a competent court. Consequently, the Respondent No.1 filed the Underlying Suit, seeking, among other reliefs, a declaration that both she and the Applicants are the legal heirs of the Deceased Abdul Rehman.
4. In their Written Statement filed in the Underlying Suit, the Applicants, while admitting the marriage of the Respondent No.1 and Deceased Abdul Rehman, contended that the Deceased had subsequently divorced the Respondent No.1, rendering her ineligible to be considered his legal heir. They asserted that, as a result, the Applicants alone were the rightful legal heirs of the Deceased. The Respondent No.1, however, denied the Applicants’ assertions.
5. Both the Trial and Appellate Courts, in their respective Impugned Judgments, ruled in favour of the Respondent No.1, finding that the Applicants failed to establish that the Deceased Abdul Rehman had divorced her in his lifetime. As a result, they held that she is his widow and, therefore, one of his legal heirs.
6. The Applicants have now instituted the instant Revision Application on 3.2.2023 against the aforesaid Impugned Judgments of the Trial and Appellate Courts.
Respective Arguments
7. At the outset, learned Counsel for the Applicants stated that he would not contest the Impugned Judgments on their merits. Instead, his objections were limited to two specific legal issues:
i) The alleged lack of pecuniary jurisdiction of the Trial Court to hear the Underlying Suit;
ii) The Underlying Suit was rendered defective due to the non-joinder of the Province of Sindh as a necessary party, in violation of Section 79 of the Code of Civil Procedure, 1908 ("CPC").
8. Counsel elaborated that based on the Respondent No.1’s (Plaintiff in Underlying Suit) admitted valuation of Rs.400/-, the Underlying Suit was incorrectly filed as a First Class Suit, whereas it should have been filed as a Third Class Suit. He pointed out that, under the Gazette Notification dated 24.4.2002, issued by the High Court of Sindh pursuant to Section 9 of the Sindh Civil Courts Ordinance, 1962, a First Class Suit requires the subject matter's value to exceed Rs.1 lac but not exceed Rs.30 lacs. In contrast, for a Third Class Suit, the subject matter’s value must not exceed Rs.50,000/-.
9. The Applicants' Counsel further acknowledged that the Applicants aforesaid objections (regarding pecuniary jurisdiction and non-joinder of the province as a party) were not raised before the Trial Court but were brought up for the first time in the Appellate Court. He defended this delay by arguing that jurisdictional and legal challenges can be raised at any stage of the proceedings. To buttress his submissions, Counsel referenced case law[1].
10. During the course of the hearing, this Court, on three occasions, asked the Applicants' Counsel whether he wished to address the merits of the case, cautioning him that if the Court overruled his legal objections, he would not be afforded a separate or an additional opportunity to argue on the merits. The Counsel, however, affirmed that he fully understood the consequences of his decision and reiterated that he was not challenging the Impugned Judgments on their merits, limiting his arguments solely to the issues of pecuniary jurisdiction and non-joinder.
11. Both the learned Counsel for Respondent No.1 and the Additional Advocate General (“AAG”) have supported the two Impugned Judgments, arguing that Respondent No.1 was being unjustly deprived of her rightful inheritance based on the Applicants’ fraudulent claim that she was no longer the wife of the Deceased Abdul Rehman due to an alleged divorce.
Questions For Determination
12. I have heard the arguments presented by the learned Counsel for the respective parties and reviewed the material on record.
13. This Court will now address the two key issues: whether objections regarding the Trial Court's pecuniary jurisdiction to hear and adjudicate the Underlying Suit, and the objection concerning non-joinder of a party, can be raised for the first time at the appellate stage.
Opinion OF Court
Forms Of Jurisdictional Objections
14. To begin with, the jurisdiction of a court can generally be classified into different common categories, with the most significant being:
a) territorial or local jurisdiction;
b) pecuniary jurisdiction; and
c) jurisdiction over the subject matter, also known as inherent jurisdiction.
Distinguishing Inherent Jurisdiction From Pecuniary & Territorial Jurisdiction
15. As a starting point of the appraisal, Section 21 CPC mandates:
21. Objections to jurisdiction: No objection as to the place of suing shall be allowed by any appellate or revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity and in all cases where issues are settled at or before such settlement, and unless there has been a consequent failure of justice
16. Jurisdictions such as pecuniary or territorial/local jurisdiction, which are based on factors like the geographical location of property across different districts, are distinct from an inherent lack of jurisdiction over the subject matter. Inherent jurisdiction refers to a court's fundamental authority to adjudicate a case and is critical to its ability to hear and decide that case. If a court lacks inherent jurisdiction, any decisions it makes may be rendered void. Only the absence of inherent jurisdiction strikes at the core of judicial competence. This absence can result in significant injustice, even if no objection is raised at the initial stage. While the competence of a court to hear a case can be challenged at any time in cases of inherent jurisdiction, this leeway does not extend to other forms of jurisdiction (such as territorial or pecuniary), which do not fall within the scope of inherent lack of jurisdiction over the subject matter.
Timeliness Of Jurisdictional Objections
17. With regard to lack of territorial or pecuniary jurisdiction, objections concerning them cannot be raised for the first time before an appellate or revisional court unless they were raised before the trial court at the earliest possible opportunity and unless the court finds that failure to entertain such an objection would result in a miscarriage of justice. If a party raises this objection belatedly, they must provide a valid explanation for why it was not raised sooner – specifically, at the time of filing the written statement and in any event, at or before the settlement of issues. They must also demonstrate how allowing the proceedings to continue without addressing the jurisdictional challenge would prejudice the defendant(s), potentially rendering the resulting decree a nullity. If such objections are raised belatedly, even if successful, they may cause a failure of justice.
18. Objections related to territorial and pecuniary jurisdiction, thus, must be timely, while in cases of inherent lack of jurisdiction, the timeframe tends to lose relevance, as a decree issued under such circumstances could be deemed a nullity at any stage. Once the trial has progressed, lack of pecuniary or territorial jurisdiction becomes a procedural irregularity, and raising it at a later stage does not invalidate the decree. If such objections are raised belatedly, even if successful, they may cause a failure of justice. Authority for this can be found in Faqir Muhammad v. Pakistan (2000 SCMR 1312); Khan Muhammad Tareen v. Nasir & Brother Coal Company (2018 SCMR 2121); and Nooruddin v. Sindh Industrial Trading Estate, an unreported judgment by a Division Bench of this Court dated 5.12.2023 in HCA No.129/2017.
Objections To Non-Joinder Of Necessary & Proper Parties
19. The term "party" is not defined in CPC. However, the rules set forth in the First Schedule of CPC provide the legal framework for civil suits concerning "Parties to Suits" under Order 1. This includes matters such as joinder, non-joinder, misjoinder, addition, deletion, and transposition of parties, and the various provisions of Order 1 set out the principles for determining who may be proper or necessary parties in a civil suit.
21. The decision in Muhammad Younus Shaikh v. Corex Enterprises (2007 MLD 508), delivered by a Division Bench of this Court, echoes the principle established in Central Government (supra). In this ruling, the Division Bench overturned the rejection of the plaint on the grounds of non-compliance with Section 79 CPC. The Court noted that the appropriate course of action was to grant the concerned party an opportunity to rectify the technical defect, rather than rejecting the plaint in the suit on that basis.
22. In Muhammad Arif v. District & Sessions Judge (2011 SCMR 1591), the Supreme Court eloquently summarised the principles governing the joinder of multiple parties (plaintiffs or defendants) in a suit under the CPC. The Court explained that parties may be joined when their right to relief arises from the same act, transaction, or series of acts, and common questions of law and fact are involved. It is not necessary for each party to have an equal interest in the entire subject matter of the suit. The primary purpose of Order 1 Rules 1 and 3 CPC is to avoid multiplicity of suits by allowing joinder, thereby ensuring more efficient adjudication. The Court is empowered to add or substitute defendants (Rules 6, 7, 10) even if their interest is limited (Rule 5), ensuring that all relevant parties are present to resolve all issues comprehensively. Moreover, a plaintiff in doubt about whom to sue may join individuals as defendants to determine liability (Rule 7). Failure to join a necessary party may at times render the suit invalid, as a final and binding decree cannot be passed without such parties.
23. The ruling in Muhammad Arif (supra) also underscored the critical importance of raising objections concerning joinder, misjoinder, or non-joinder of parties at the earliest possible stage of proceedings. It was emphasized that failure to timely raise such objections may result in their waiver, as mandated by Order 1 Rule 13 CPC, which states:
13. Objections as to non-joinder or misjoinder: All objections on the ground of misjoinder or non-joinder of parties shall be taken at the earliest possible opportunity and in all cases where issues are settled, at or before such settlement, unless the ground of objection has subsequently arisen, and any such objection not so taken shall be deemed to have been waived
This rule highlights the necessity for prompt objections to prevent procedural delays and mitigate the risk of undermining the effectiveness of the legal process. Precedent for this position can also be derived from the decision in Muhammad Ali Shaikh v. Sui Southern Gas Company (2014 YLR 444).
24. Even otherwise (assuming for argument’s sake that the Underlying Suit was defective due to the non-joinder of a party), the Respondent No.1 can still maintain her Underlying Suit against the Applicants and proceed with her claim against them, as she has also sought a declaration that she and the Applicants are the legal heirs of the Deceased Abdul Rehman. The court is tasked with the duty to deliver justice and not to hinder the granting of rights to individuals. It must steer clear of technicalities unless they are crucial and fundamentally required.
Provincial Government’s Stance
25. Additionally, it is noteworthy that the learned AAG did not at any time object either to the non-joinder of the Province of Sindh or to the inclusion of subordinate functionaries of the Provincial Government. At no point did the AAG argue that an incorrect department or official had been impleaded. On the contrary, he endorsed the rulings of the two lower courts and criticized the Applicants for employing fraudulent tactics to deny Respondent No.1, a widow, her rightful inheritance in her late husband’s estate, which amounted to a mere pittance.
The Current Case
26. Turning to the matter at hand, it is observed that the Underlying Suit was instituted by the Respondent No.1 on or about 28.9.2021 and admitted for registration on 1.10.2021. The Applicants filed their Written Statement in November 2021, after which issues were settled on 26.11.2021. Evidence from a total of ten (10) witnesses was recorded, following which the Trial Court passed the Impugned Judgment on 18.10.2022 and the Decree on 19.10.2022. The Applicants filed an appeal in November 2022 against the Trial Court’s Impugned Judgment, raising their two legal objections for the first time during the appellate stage.
27. In Khan Muhamad Tareen (supra), while the petitioner did raise objections to the territorial jurisdiction in his written statement, the Supreme Court deemed this insufficient due to the considerable delay in filing the written statement, which meant the issue was not raised at the earliest opportunity.
28. Keeping in view the aforesaid legal principles, it can be seen that the Applicants failed to raise timely objections regarding the jurisdiction of the Trial Court and to the non-joinder of Province of Sindh as a party. This lapse not only undermines their position but also limits their ability to challenge the proceedings at a subsequent stage i.e. before the Appellate Court. The rationale for raising objections promptly is to provide the affected party with a fair opportunity to correct the defect in a timely manner. As a result, the Applicants are bound by the decisions made in the original trial, which were conducted in accordance with the established legal framework.
Conclusion
29. In light of the Applicants' failure to raise timely objections regarding both the Trial Court's pecuniary jurisdiction and the non-joinder of the Province of Sindh as a party, there is no merit in the instant Revision Application, and it is hereby dismissed with costs of Rs.25,000/-.
JUDGE
Hyderabad
Dated: 11th October, 2024
[1] PLD 2008 Lah 175 (Water And Power Development Authority v. Abdul Shakoor); 2019 CLC 947 (Muhammad Aslam v. Ishrat Bibi); 2018 MLD 35 (Government of Khyber Pakhtunkhwa v. Safirullah); 2020 MLD 371 (Mehar v. Province of Sindh); 2010 SCMR 115 (Government of Balochistan v. Mir Tariq Hussain); PLD 1971 Kar 625 (Secretary B & R v. Fazl Ali Khan)