ORDER SHEET

IN THE HIGH COURT OF SINDH AT KARACHI

Suit No. 861 of 2010

Date                    Order with signature of Judge

For final disposal.

18-12-2012 :

Mr. Qadir Hussain Khan, advocate for the plaintiff.

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            The plaintiff has filed this Suit for declaration, administration, mesne profits, partition, possession, rendition of accounts and permanent injunction against the defendants. The plaintiff and his real brother Abdul Aziz were the co-owners of the suit property ; namely, Plot No.3 of Row No.2, Sub Block F, Block I, Nazimabad Karachi. Abdul Aziz passed away on 11.12.2002, and upon his death, the present four defendants inherited the 50% share in the suit property.  The plaintiff has alleged that the defendants have rented out the ground floor of the suit property at the rate of Rs.12,000/- per month to one Muhammad Ashraf and second floor to one Muhammad Aslam at the rate of Rs.7,500/- per month. It has also been alleged by the plaintiff that the defendants have not paid any amount to the plaintiff out of the rents received by them towards his 50% share in the suit property.  In the above background the plaintiff has filed this Suit for administration, partition of the suit property, separate possession for himself and mesne profits.  It has also been prayed by the plaintiff that a receiver be appointed by the Court to conclude the rents paid by the tendants. 

            The summons were issued to the defendants which could not be served as the defendants refused to accept the same as per the order passed by the Additional Registrar (O.S.) on 26.10.2010 and 11.03.2011.  Finally, the summons were published in the daily Urdu newspaper “Nawa-i-Waqt ” published on 19.03.2011 and the service was held good on defendants on 31.03.2011 as the defendants did not file their written statement despite proper service, they were declared exparte vide Order dated 30.05.2011. 

            Before passing the final decree in suits for administration or partition, a preliminary decree is to be passed under Order XX Rule 13 CPC, and while passing a preliminary decree the Court can set the terms and conditions.  Accordingly, a preliminary decree is passed in the following terms :-

1.        The Nazir of this Court is appointed as the Commissioner to inspect the suit property in order to ascertain whether or not the suit property can be partitioned.  The Nazir shall submit his report to this Court within four weeks along with a copy of the private building plan, the proposed plan of partition and sketches, if any.

2.        The Nazir shall obtain all necessary particulars from both the afore mentioned tenants regarding the rate of rent which they are paying to the defendants, and shall also obtain copies of the rent agreements and rent receipts from the defendants as well as from both the tenants. 

            With effect from January, 2013 the monthly rents of the suit property shall be collected by the Nazir from both the tenants.  The amounts so received shall be invested by the Nazir in  some profit bearing Government scheme.

3.        The Nazir shall obtain the details of all the amounts which the defendants have already received as rents of the suit property. All the aforementioned details shall be maintained by the Nazir in his report.

            Till the passing of the final decree, the defendants are restrained from creating any third party interest in the suit property and or from selling, transferring, or alienating their 50% share in the suit property to any third party.

J U D G E

Abdul Salam/P.A