PLJ 2007 Karachi 26

Present: Gulzar Ahmad, J.

KHURSHEED AHMED--Plaintiff

versus

FAYYAZ AHMAD and 7 others--Respondents

Suit No. 95 of 2006 in CMA No. 547 & 548 of 2006, decided on 15.2.2006.

Civil Procedure Code, 1908 (V of 1908)--

----S. 11--Resjudicata--Suit for administration, partition and permanent injunction--Letter of administration in respect of the subject matter had already been granted by the District Judge against which an appeal was still pending--Held: Suit was hit by resjudicata. [P. 28] A

Mr. Saathi M. Ishaque, Advocate for Plaintiff.

Date of hearing: 15.2.2006.

Order

On 31.1.2006 the plaintiff's Counsel was asked to show as to how this suit was maintainable and the matter was adjourned to 10.2.2006. On 10.2.2006 learned Counsel made a statement before my learned brother Khilji Arif Hussain, J that in almost identical matter Being Suit No. 287/2005 was admitted by me. The matter was ordered to be placed before me. Mr. Saathi M. Ishaque was asked to show the copy of the order passed in Suit No. 287/2005. He however, showed me copy of cause list of 6.2.2006 in which Suit No. 287/2005 is showing to have been fixed before me. Learned Counsel did not show the order that may have been passed in Suit No. 287/2005.

I have heard the learned Counsel on the maintainability of Suit. It seems that SMA Bearing No. 219/2003 was filed in the Court of District & Sessions Judge, Karachi (Central) by the Defendant No. 1 in which the plaintiff was shown as respondent. The said SMA was granted by order dated 28.2.2004 (Annexure-D to the plaint) by which the Court allowed issuing of Letter of Administration in respect of the property to the petitioner namely the Defendant No. 1 while the plaintiff was appointed as guardian ad litem of the mentally retarded persons namely Naseer Ahmed, Muhammad Iqbal and Nasreen Begum. The plaintiff was aggrieved by this order and has filed a Miscellaneous Appeal No. 26/2005 in this Court under Section 384 of the Succession Act which is stated to be pending (Annexure-J to the plaint). The learned Counsel was asked as to what the precise grievance of the plaintiff is, he states that plaintiff is one of the legal heirs of deceased Ghulam Sarwar and that immovable property in respect of which the SMA was filed is in his possession and that the value in the SMA has been wrongly given that of Rs. 22,00,000/- (Rupees Twenty Two Lacs) though it is valuing Rs. 40 to 50,00,000/-. He states that pursuant to the grant of the Letter of Administration the Defendant No. 1 and the other legal heirs of the deceased are trying to dispossess the plaintiff and to sale the property. In substance the grievance of the learned Counsel appears to be relating to the SMA that was filed in the Court of District & Sessions Judge, Karachi (Central) in which Letter of Administration has been granted and the order granting such Letter of Administration has been challenged by way of an appeal which is stated to be pending in this Court. The learned Counsel states that he has made certain miscellaneous application in the appeal regarding the valuation of the property and for obtaining some other reliefs. He is unable to show that as to how in the face of pendency of an appeal, the suit can justifiably be maintained by plaintiff. He merely says that the suit has been filed only to obtain proper valuation of the property and also that the plaintiff be not dispossessed from the property. It may be noted that the property in question was subject-matter of SMA No. 219/2003 which has been disposed off and now the appeal in respect of it is pending in this Court and all matters relating to the subject property are to be dealt with and decided in the proceedings of the said SMA and the appeal arising from it. No justifiable reason or cause has been shown for the maintaining to the present suit. The suit is for administration, partition and permanent injunction. Letter of administration in respect of the subject property has already been granted by the District & Sessions Judge, Karachi (Central) which is the subject-matter of the Miscellaneous Appeal No. 26/2005 which is stated to be pending in this Court. In the face of the above proceedings, the maintainability of the present suit is wholly doubtful. No law has been shown by the learned Counsel for the plaintiff to support the same although he was aware that the question of maintainability of suit has already been raised by the Court. Consequently, the suit appears to be barred under the principles of res judicata as provided under Section 11 of the CPC as similar dispute has been decided between the parties in SMA No. 219/2003 and now an appeal is pending against it.

For the above reasons, the suit stands dismissed with no order as to cost.

All the pending applications are also disposed off accordingly.

(Javed Rasool) Petitions disposed of