1. SYED SAEEDUDDIN NASIR, J.--- By this order I intend to dispose of C.M.A. No. 2167 of 2010 which is an application under Order VII, Rule 11 read with section 151, C.P.C., 1908. The main contention of the learned counsel for the defendants Nos.1 to 4 in this application is that the plaintiff as well as defendants Nos.5 and 6 had filed Suit No.944 of 1990, which was proceeded and was fixed for evidence after framing of issues, however the same was dismissed on 3-2-2000, therefore, in view of the fact that the suit earlier filed on the same cause of action and seeking same relief was dismissed as aforesaid, and the same was also the suit for administration of the property of the deceased, as such instant suit as filed is barred under Order IX, Rule 9, C.P.C. As well as on the principle of res judicata.
2. It is next contended that the present suit is barred under Article 123 of the Limitation Act, as being after, the lapse of prescribed time limit, and that the suit property i.e. Agricultural land owned by the deceased are situated in Bhiria City, District Naushero Feroz, which is beyond the Original Civil jurisdiction of this Court, where the Senior Civil Judge has exclusive jurisdiction to try such suit within its territorial limits as such the suit is otherwise barred under the law. In support of his arguments the learned counsel for defendants Nos.1 to 4 has placed reliance upon 1987 SCMR 527 and 1996 CLC 1273. In both the aforesaid case-law plaint of subsequent suit was rejected under Order VII, Rule 11, C.P.C. On the ground that subsequent suit on the same cause of action as earlier one, was not maintainable in as much as the earlier suits were dismissed under Rule 9 of Order IX of Code of Civil Procedure, 1908.
3. Learned counsel appearing for the plaintiff has vehemently opposed the instant application and has contended that the Suit No.944 of 1990 was not dismissed under Order IX, R.8, C.P.C., but the same was dismissed under Rule 3 of Order IX, C.P.C., 1908, therefore, under R.4 of Order IX of the C.P.C. The plaintiff can bring fresh suit in respect of the same cause of action. Learned counsel for the plaintiff has drawn the attention of the Court to Annexure 'B' of the plaint, which appears a page 31 of the file of present suit, which is an order dated 3-2-2000, which states as under.
4. "3-2-2000.
5. Mr. Ahmed Pirzada, Advocate for plaintiff. None present for defendant.
6. Mr. Ahmed Pirzada, has submitted a copy of the letter along with postal receipt No.1458 whereby he had informed the plaintiff about the date of hearing and also sought instructions. According to him nobody is contacted him so far and therefore he is not in a position to proceed with, the matter anymore. In the circumstances, the suit is dismissed.
7. Sd/- Judge"
8. Learned counsel for the plaintiff while referring to the aforesaid order submits that R.8,. O.IX contemplate procedure where defendant only appear however, by mere perusal of the aforesaid order dated 3-2-2000, it becomes crystal clear that the defendant did not appear before the Court on .The date of dismissal of Suit No.944 of 1999. The counsel for the plaintiff was in attendance before the Court who pleaded no instruction from the plaintiff.
9. It is next contended by learned counsel for the plaintiff that in view of the above the dismissal of the earlier suit falls within the meaning contemplated by Rule 3 of Order IX of the C.P.C. Of 1908, which enables the plaintiff to bring fresh suit on the same cause of action under R.4 of O.IX of the C.P.C.
10. The learned counsel for the plaintiff further states that the question of limitation does not arise in administration suits in as much as in suits for administration of the property of the deceased the cause of action for filing the suit accrues to the plaintiff from day to day and every day till such time as their due shares in the property of the deceased is not given to them.
11. In order to substantiate his argument, learned counsel for the plaintiff has relied on 2005 SCMR page 1447 wherein it is held that bar of Limitation is not applicable to right of inheritance, which does not extinguish by afflux of time.
12. It is next contended by the learned counsel for the plaintiff that as far as question of jurisdiction is concerned, since one of the property of the deceased listed at Sr. A in paragraph 4 of the plaint is situated in Karachi, therefore suit for administration for the entire suit of the deceased can be filed at Karachi including the properties which are situated beyond the Original Civil jurisdiction of this Court. In this regard learned counsel for the plaintiff relied upon Karachi AIR 1928 Madras 760, wherein it is held that the question of administration of the property of the deceased situated beyond the territorial jurisdiction of the Court can be decided by the Court. In this matter this Court appointed Commissioner in respect of property of the deceased situated beyond its jurisdiction.
13. After hearing learned counsel for the parties and appreciating the case-law cited by the learned counsel for the parties I have perused the documents available on the record of the case and have come to the conclusion that admittedly on the date of dismissal that the Suit No.944 of 1996 the defendant was not present before, the Court as per the diary sheet of the case dated 3-2-2000 the plaintiff was also not present before the Court and the counsel for the plaintiff pleaded no instructions, therefore, it can very easily be said that the dismissal of the Suit as aforesaid was not under R.8 of O. IX, C.P.C. Which only contemplates the scenario where the defendant only appears and the plaintiff does not appear, when the suit is called, and in such situation Court can proceed to dismiss the suit.
14. I am in agreement with the arguments extended by the learned counsel for the plaintiff that the earlier suit, as circumstances appear was dismissed under Order IX, R.3 of the C.P.C. Which admittedly enabled the plaintiff to bring fresh suit under Order IX, R. 4 of the C.P.C.
15. That as far as the point of limitation in Administration suit is concerned, I see no force in the arguments extended by the learned counsel for the defendants Nos.1 to 4. The learned counsel for the plaintiff has rightly pointed out that the right to file suit for administration of the property left behind by the deceased does not extinguish by afflux of time.
16. Turning now to the point of jurisdiction raised by the learned counsel for the defendants Nos.1 to 4 that this Court has no jurisdiction to try the instant suit inasmuch as most of the properties of the deceased mentioned at Sr. Nos.(b)(c)(d)(f)(g) in para 4 of the plaint are outside the jurisdiction of this Court. In this respect suffice it to say that this plea has been raised by the defendants 1 to 4 on account of wrong legal advice. The case-law cited by the learned counsel for the plaintiff i.e. 1928 Madras Page 760 supra, is very clear on the point of jurisdiction and states that the Court has jurisdiction to Administer the estate left behind by the deceased in an Administration Suit, which is situated beyond the jurisdiction of the Court. Moreover, I am further fortified on the point of jurisdiction in Administration suit by case of this Court namely; Yousuf Abbas and others v. Mst.
17. Lsmat Mustafa, reported in PLD 1968 Karachi page 480, wherein it is held that the question of Administration of the property left behind by the deceased, which were situated beyond the territorial jurisdiction of this Court and even outside Pakistan in the State of Behrain, can be decided by this Court in a suit for Administration of the estate/properties of the deceased filed in this Court.
18. In this matter this Court not only included those properties in Administration but also appointed Administrator in respect thereof.
19. In view of above I am of the considered view that the application filed by the defendants Nos.1 to 4 under Order VII, R.11, section 151, C.P.C. Is misconceived, which is consequently dismissed with no order as to costs.