1. ' MUHAMMAD AFZAL SOOMRO, J . - Through this application, legal heir No,4, listed in table of legal heirs, shown in main petition, has sought setting aside, recalling and revocation of the order, dated 14-4-2005 whereby the main petition was granted in favour of the petitioner on the ground that the same was obtained fraudulently by concealing material facts and making false statement in the absence of the petitioner, other legal heirs as well as the witnesses.
2. ' The facts for deciding this application appear to be that on 14-4-2005 when this matter was fixed for final hearing, Mr. Khalid Latif Advocate appeared. On the order-sheet, office pointed out that notice of main application had, already, been issued through bailiff, registered post A.D. And courier service besides the same was pasted on the Court Notice Board as per bailiff's report and publication of said notice in daily "Jang" dated 1-9-2004. It was further pointed out by the office that next of kin Nos.1, 3 to 8 being adults had filed their no objection affidavit in favour of the petitioner whereas as per Court order dated 30-3-2005 notice was issued by registered post A.D.
3. And courier service. It appears that office misguided about the filing of no objection affidavits whereas record reflects that the applicant did not file any affidavit with regard to the no objection on his part and therefore, order, dated 30-3-2005 was passed which, for the sake of convenience, is reproduced below:-- "As per bailiff's report, next of kin namely Syed Muhammad Anwarul Haq Fatimi is avoiding to accept the service of notice. On 15-12-2004 the concerned bailiff pasted the notice on the front door of the house of the above-named next of kin. The statement of the concerned bailiff has already been recorded on 17-12-2004. From the contents of the said statement, it is obvious that the above-named next of kin was not present at the given address.
4. ' Let fresh notice be issued through bailiff, registered A.D. And through courier service at the cost of the petitioner. To come up on 14-4-2005."
5. ' Consequently, on 14-4-2005 the order, sought to be reviewed, was passed as it was very much clear from the conduct of the applicant that he kept himself away from the proceedings by avoiding service of notice as observed in the order dated 30-3-2005. Furthermore, since 14-4-2005 till 8-4-2006, the date of presenting this application (C.M.A.No,221 of 2006) he remained silent for about one year for which neither any plausible explanation has been given nor it has been asserted that how he came to know about the order dated 14-4-2005. He has taken the following grounds in his affidavit, filed in support of the subject application:-- ' That I say that on 14-4-2005, neither the petitioner nor any of the legal heirs nor witnesses were present in the Court. Admittedly the petitioner is a British national and she was and is in London.
6. She has personally filed this petition and after filing the petition she left for London and never came to Pakistan.
7. ' That I say that immovable properties have been grossly undervalued in the petition.
8. ' That I say that under a family settlement I am exclusive owner of open residential Plot No,B-29, Block No,1, Gulistan-eJauhar, Karachi, admeasuring 400 sq. Yards.
9. ' That I say that my deceased brother, was in London since October, 1968 till his death on 13-8-2001.
10. He did nothing for acquiring any property in Pakistan. It is I who did everything for allotment of plot either in my name or in the name of my any family members.
11. ' That I had applied for allotment of plot for myself for my mother and my deceased brother, Syed Ehteshamul Haque.
12. ' That I say that ownership of Plot No,B-29, Block No,1, Gulistat-e-Jauhar, Scheme No,36, admeasuring 400 sq. Yards has link with Plot No,214 in Block-2, Scheme No,36, measuring 400 sq.
13. Yards, Plot No,214 in Block No,2 was allotted to me and Plot No,B-29, in Block No,1, Scheme No,26 was allotted to my brother, but under a family settlement my mother and my deceased brother pressed me to get my plot transferred to my younger sister Rabia Farhat Saleem. This was done by us to thwart off apprehension of annulment of matrimonial tie with the husband of my sister who had threatened my sister with a dire strait. In lieu of my Plot No,214 my deceased brother had given me Plot No,B-29 in Block No,1, Gulistan-e-Jauhar, Scheme No,36, measuring 400 sq. Yards which is in my actual physical possession. Since. This fact is well known to all the legal heirs I did not care to get it transferred in my name but I was stunned to see that the petitioner as well as the other legal heirs have concealed this fact and included my plot in the schedule of property left by the deceased.
14. ' That I say that sisters of the deceased are not entitled to any 2.Share in the estate of the deceased if the deceased died leaving two daughters. According to Islamic Sunnah Law of Inheritance if the deceased died leaving behind 1 daughter sister becomes entitled and if the deceased died leaving behind 2 daughters the sister becomes disentitled.
15. ' That I say that on 14-4-2005 the matter was fixed for consideration of service upon me and not for hearing of the main application."
16. ' On the other hand, in response to the ground with regard to presence of the parties in Court on 14- 4-2005, it has been asserted on behalf of the petitioner that except the petitioner, her mother and sister (who were in U.K. But were represented by Advocate) all other legal heirs of the deceased were present. It was further responded that present applicant though he was served with the notice chose to remain absent.
17. ' In response to the ground with regard to the ownership of Plot No,B-29, Block No,1, Gulistan-e- Jauhar, Karachi by virtue of family settlement, it has been asserted that the applicant has failed to produce any document in support of his such plea. It was reaffirmed that all the properties mentioned in the schedule to the petition were owned and purchased by the deceased father of the petitioner from his own funds and that the same are not only in the name of deceased father of the petitioner but all the original title documents thereof are in possession of the petitioner.
18. Furthermore the applicant through his life never had any financial resources to acquire these properties. He was always financed and looked after by the deceased father of the petitioner and now instead of being kind and fair to the wife and children of his deceased brother, out of sheer greed, has filed this frivolous application to create hurdles in the smooth distribution of the assets of the deceased. It has, also been contended that the applicant has concocted a false story to forestall the legitimate rights of the petitioner as well as other legal heirs of the deceased and that the applicant is a greedy person who has earlier given a threat to the petitioner that if he was not given a sum of Rs,3,00,000 (three million only) in addition to his share in the estate of deceased, he would now allow the smooth distribution of the assets of the deceased. In support, following case- law has been relied upon:--
(I) Rukhsana Kausar and another v. Additional District Judge, Khanewal and 11 others 2000 CLC 385,
(2) Fateh Muhammad v. Arshad Afzal 1999 M LD 1481, (3) Allah Nawaz Khan and 2 others v. Farida Fatima Khanum and 11 others 1999 M LD 2738 and (4) Messrs Commercial Textile Printers v.
19. Muhammad Yasin 2003 M LD 1772.
20. ' I have considered the arguments, advanced on behalf of both the parties, perused the record, gone through the case-law, cited on behalf of the petitioner and in view of what has been argued on behalf of the petitioner am of the considered view that this application moved by legal heir No,4 is only to drag the petitioner and other legal heirs of the deceased in litigation and liable to be dismissed for the reason that neither the applicant has submitted any plausible explanation for remaining slept over the matter for about one year nor he has filed any documentary proof in support of his contention that a family settlement was arrived at between the parties.
21. ' In view of what has been discussed above I am not inclined to allow this application which is dismissed.
22. C.M.A. No,221 of 2006 stands disposed of.