1. C.M.No. 9234 of 2005 . NADEEM AZHAR SIDDIQI, J.--- By this order I intend to dispose of application under Order VII Rule 11 CPC (CMA No. 9234 of 2005 filed by defendant No.1 on the ground that the value of the suit is below the pecuniary jurisdiction of this Court and the suit has to be transferred to the lower Court having jurisdiction. The other ground is that the defendant No.2 is not the legal heir of deceased and in his presence the suit for administration of property is not maintainable and be treated as ordinary suit.
2. The attorney of plaintiff No.2 has filed counter-affidavit to the above application and submits that the share of the plaintiffs in the properties in suit comes to over 50.00 million and this Court has jurisdiction to try the suit. He further submits that after the death of deceased all the properties and assets belonging to him were taken over by the defendant No.2 who is the husband of defendant No.1 and is in possession of two shops and a flat belonging to the deceased and under the orders of the Court depositing certain amounts towards the income of said shops.
3. Mr. Samiuddin Sami submits that in Para 11 of the plaint the plaintiffs have shown the value of the properties as more than Rs.6,00,000/- He submits that for the purpose of jurisdiction the plaintiffs have to value the to their shares and not on the basis of the value of the properties left by the deceased and since the value of the shares of the plaintiffs in the properties is less than Rs.
4. 6,00,000/- this Court has no jurisdiction. He further submits that a suit for administration of the property of deceased can be filed in between the legal heirs and a person who is not the legal heir cannot be joined as party to the suit. He also, submits that the preliminary decree is nullity for want of jurisdiction and was passed in a non-maintainable suit having no legal effect and is not binding.
5. He, relied upon the following reported cases:-
(1) The Chairman, Karachi Water and .Swerage Board and another v. S. Wazir Hyder and three others (1988 CLC 308)
(2) Suba Khan v. Rehmat Din and others (1980 CLC 589)
(3) Zahida Perveen and others v. Muhammad Saleem and another (2003 CLC 1245)
(4) Syed Mehdi Hussain Shah v. Mst. Shadoo Bibi and others (PLD 1962 SC 291)
(5) Mst. Ghazala Zakir v. Muhammad Khurshid and others (1997 CLC 167)
(6) Sabastian Antonio Texeira and others v. Rolele Minguel Texeira and others (AIR 1962 Bombay 4).
6. Mr. Waqar Muhammad Khan Lodhi, learned counsel for defendant No.1 contended that the preliminarily decree was already passed on 23.9.1999 and Nazir has submitted his report dated 25.2.2005. He submits that in 1999 when the suit was filed the pecuniary jurisdiction of High Court starts from Rs. 5,00,000/- and the suit was rightly filed and by increasing the jurisdiction of the District Courts the High Court do not loose its jurisdiction and the jurisdiction enjoys by the High Court is a special statutory jurisdiction and concurrent with the District Courts and since the suit was disposed of before the change in jurisdiction transfer of this case to District Court is not necessary. He further contended that since the defendant No.2 is in possession of certain properties of the deceased which he admitted before the official assignee and as such he is necessary party to the proceedings and by impleading him as party the nature of the suit is not changed. He 'further contended that in any case the plaint cannot be rejected on the ground urged by the defendant No.2. He relied upon the following cases:-
(1) Firdous Trading Corporation and others v. Japan Cotton & General Trading Co. Ltd. (PLD 1961 (W.P) Karachi 565)
(2) Gulfam and others v. Bibi Qudsia Begum (2003 CLC 1183)
(3) Secretary, Board of Revenue, Baluchistan, Quetta and Two others v. Abdullah and Two others (1999 MLD 2104)
7. Learned counsel for the plaintiffs is right that the plaint cannot be rejected on the basis of grounds urged before me. The High. Court enjoys special statutory jurisdiction in Civil suits and this jurisdiction is concurrent with the District Courts. In the case reported as OFFICE REFERENCE IN RESPECT OF CIVIL COURTS (SIND AMENDMENT)
8. ORDINANCE, 1970 (SIND ORDINANCE XIII OF 1970) (PLD 1981 Karachi 210) a Full Bench of this Court while examining the amendments made in W.P. Civil Courts Ordinance, 1962, by Civil Courts (Sindh Amendment Ordinance XIII of 1970) has held as under:- "Now, therefore, it is clear that so far as the District of Karachi is concerned suits or other matters exceeding Rs. 25,000 in value and up to Rs. 50,000 can be filed either in this Court or in the District Courts jurisdiction being concurrent."
9. PLD 1962 SC 291) THEIR Lordship of Supreme Court have held:- ------------------------------- While an administration suit is not a remedy for getting possession from those who claim the property in their possession in their on right and adversely to the deceased there does not appear to be any valid objection to their dispossession if they claim only as heirs or under a will from the decesased and their claim is negatived. The question as to whether a person is entitled to a share in the property of the deceased is a fit subject of decision in an administration suit and in fact learned counsel for the appellant does not contend to the contrary, his plea being the a defendant in an administration suit can raise a question as to whether the plaintiff or another defendant is entitled to a share but that the plaintiff cannot raise such a plea as to a defendant. We see no good reason for this distinction."
10. "14. Here, I would like to lay down a mark of caution that in a suit for administration where any party claims to be owner of a property which admittedly stood in the name of deceased at the time of his death then for determination of such claim a suit for administration is maintainable. I would also like to observe that Form 17 of the C.P.C. Provides that a suit for administration , accounts and partition is maintainable which impliedly suggests joinder of several causes of acticion From the above it is clear that for determination whether the property stood in the name of the deceased at the time of his death a suit for administration is not maintainable the plaint cannot be rejected at the same is to be treated a ordinary suit. The other aspect of the case is that by way of passing of the preliminary decree as far back as on 23.9.1999 the suit was disposed of. The order was passed in presence of defendant No.1 and 2 who had not raised such objection. The application filed by defendant No.1 at the face of it is frivolous and has been filed with the aim to delay the proceedings and to enjoy the properties of the deceased. I, therefore, dismissed the application under VII Rule 11 CPC with cost of Rs. 10,000/- to be deposited with the Nazir of this Court within seven days from the date of this order. The cost so deposited will be appropriated towards the High Court Employees Benevolent Fund subject to administrative approval of the Hon'ble Chief Justice.
11. Application for rejection of plaint was dismissed.