ORDER SHEET
IN THE HIGH COURT OF SINDH AT KARACHI
Suit No. 1537 of 2012.
Date Order with signature of Judge
For hearing of CMA Nos:
1. 2742/14.
2. 8318/14.
3. 14141/14.
4. 12004/12.
5. 8980/13.
6. 7087/14.
7. 7194/14.
8. 7196/14.
9. 7813/14.
10. For examination of parties/settlement of issues.
19.3.2015.
Mr. Mubarak Ali Shah, Advocate for Plaintiff.
M/s. Muhammad Yasin Azad and Muhammad Khalid Advocates for Defendant No.1.
Mr. Ejaz Mubarak Khatak, Advocate for Defendant No2/DHA.
Mr. Khawaja Shamsul Islam, Advocate for Defendant No.3.
Through this order, I intend to dispose of CMA Nos. 2742/14 and 8318/14 filed Under Order VII Rule 11 CPC.
2. At the outset, learned counsel for the Defendants, inter alia, argued that three suits were contested by late Saeeduddin Qureshi and Defendant No.1 Mst. Bushra Qureshi (husband and wife) with regard to property i.e. house No.141 situated at Khayaban-e-Hafiz, Phase-VI, Defence Housing Authority, Karachi and House No. 111-M/2 Main Khalid Bin Waleed Road, PECHS, Karachi which ended on settlement between the parties; such settlement was reduced in writing and is available at page No.91 whereby all three suits were disposed of on and such judgment and decree were recorded; that Mst. Imtiaz Bibi claimed, as widow of Saeeduddin Qureshi (late), has filed instant suit for administration claiming both properties as well property i.e. House No.65, Khayaban-e-Badban, Phase-V, DHA, Karachi and other chattels mentioned in schedule “D” but according to record, property as Schedule “C” was owned by Abdul Qadir father of Defendant No.1 and thereafter this property was transferred by Abdul Qadir in favour of his wife Mst. Mumtaz Begum, which, subsequently, transferred in favour of Defendant No.1 by her mother. Further, contended that with regard to chattels, nothing is produced on record regarding description, possession and location, therefore, this suit is not maintainable under the law. Besides, contended that this matter went upto the Hon’ble apex Court with regard to sale of one property in execution proceeding, as per agreement late Saeeduddin Qureshi was entitled to receive Rs.60,000,000/- (Rupees Six Cror Only) and Hon’ble apex Court also, while disposing of such application, observed that Nazir is competent to proceed further for satisfaction of decree. That Plaintiffs if prove to be legal heirs of late Saeedudin Qureshi, would be entitled to inherit the share from the amount which is Rs. 6 crore as per settlement agreement and no other property was left by the deceased. Hence, suit is not maintainable. In respect of their contention they have relied upon case laws in the cases of WASI-UD-DIN vs. FAKHRA AKHTAR and 4 others [2011 SCMR 1550] MISKEEN AHMED vs. Mst. SAJIDA AHMED [2012 CLC 160], Mst. Asia Bibi vs. Dr. ASIF ALI KHAN [PLD 2011 Supreme Court 829], YOUSUF vs. ZUBEDA and others [1984 MLD 590], and 2006 YLR 599.
3. In contra, learned counsel for the Plaintiffs contends that they have also filed suit for cancellation of gift deed executed by defendant No.1 as well another suit filed by the defendant No.1 against plaintiffs with regard to properties owned by the plaintiffs, which are pending. This matter requires evidence; no limitation runs in administration suit; in executing Court they are agitating their right as they have not received their due share and under inheritance they are entitled for the same relief.
4. Before addressing the merits of the case, the development in law now does permit considering admitted facts and documents while deciding application under Order VII Rule 11 CPC as earlier for such exercise only the averment of plaint, were to be considered as true.
5. While, Scanning of available record makes, it appears that there was litigation between late Saeeduddin Qureshi and Bushra Saeed Qureshi (Defendant No.1) which ended on settlement agreement in the year 2008. At this juncture, as pointed out by learned counsel for the Defendant Article 3 of settlement agreement, being relevant, is reproduced herewith:-
Article 3.FULL AND FINAL SETTLEMENT.
3.1. That this Agreement between Mrs. Qureshi, so and SMR is in full and final settlement of all issues either direct or indirect, against each of the others Property and each clarify that they have no future claims for any amount whatsoever against each of the other.
The above seems to have brought a full stop to all claims direct or indirect between the parties hence until existence of such (decree), the persons, claiming under any of the above parties, cannot legally over-steppe the lines sketched by their predecessor interest.
6. Manifestly, the relation between late Saeeduddin Qureshi and Mst. Bushra Qureshi was strained, there were litigation between both the parties. Property mentioned in Schedule C was not in the name of late Saeeduddin Qureshi at any time; on the contrary, purchased by father of the defendant as confirmed by learned counsel of DHA. Besides, no sufficient material has been placed with regard to chattels left by the deceased Saeeduddin Qureshi and perusal of Article 3 reflects that late Saeeduddin Qureshi was not claiming any property under the possession of Defendant No.1 but the plaintiffs through instant suit are claiming.
7. At this juncture, it is proper to endorse that scope of the ‘Administrative suit’ stood defined by honourable apex courts is:-
‘to determine what estate the deceased left at the time of his death; administration thereof; payment of debts and liability and partition of rest of estate between the heirs’
The scope of the administrative suit permits only a summary inquiry for determination of what estate the deceased left but it does not permit deciding the status of decree, drawn by a competent court on move of the deceased himself nor allows adjudication of disputed documents in summary manner if same involves rights of others. Candidly, It is matter of record that deceased not claimed anything to be in possession of defendant. Thus, I am of the considered view that prayer of the instant suit cannot be legally entertained particularly when same appears to be exceeding the four corners of ‘administrative suit’ which, legally, has a limited scope and is to be decided in summary manner, hence instant plaint is liable to be rejected.
8. Moreover, it is surfaced that that execution application is pending as well issue of legitimacy of the parties in separate suits is under adjudication before this Court hence at the end of the day the successful party will undoubtedly will receive due share. Consequently, instant plaint is rejected alongwith listed applications.
JUDGE
Sajid/PA