AZIZ-UR-REHMAN, J.----By means of this High Court Appeal filed by the appellants on 18.08.2017, under section 3 of the Law Reforms Ordinance, 1972, read with Section 15 of Ordinance X of 1980 [Waqar Ahmed Siddiqui and others v. Mst. Shehnaz Parveen], have challenged the impugned order dated 24.07.2017, passed by the learned Single Judge of this Court in Suit No,1502/2015 [Waqar Ahmed Siddiqui and 3 others v. Shehnaz Parveen], whereby, the learned Single Judge while, allowing the application under section 152, C.P.C. bearing C.M.A. No,9428 of 2017. filed by the respondent herein, modified the judgment and decree dated 18.05.2017 and 24.05.2017, respectively.
2. Being relevant, the prayers sought by Respondent viz. Mrs. Shehnaz Parveen [stepsister of the appellants], in the Application under section 152, C.P.C. [C.M.A. No,9428/2017] read as follows: -
1. "It is prayed on behalf of the defendant above-named that this Hon'ble court may be pleased to pass order for making amendment in the Judgment and Decree assed by this Hon'ble Court on 6-5-2017 and announced on 18-5-2017 as under in the interest of justice and law: Last page of judgment and Decree left by deceased Mst. Nafeesa Siddiqui the expenses will be met from the assets left by deceased Mst. Nafeesa Siddiqui.
That in place of Nafeesa Siddiqui, name of Deceased Muhammad Ahmed Siddiqui shall be amended as who was father of plaintiffs and defendant and property in question is still in his name.
2. Distribute the sale price amongst all the plaintiffs.
That it would be distribute the sale price amongst all the plaintiffs and Defendants according to Muhammadan Law of inheritance.
[Underlining is ours] It is in the interest of law and justice."
3. The relevant facts of the case out of which this High Court Appeal has arisen arc that the Appellant No,1, filed a Petition under Section 278 of Succession Act, XXXIV of 1925 [SMA No,59 of 2005], for grant of a Letter of Administration in respect of properties and assets belonging to late Mst. Nafeesa Siddiqui wife of Late Muhammad Ahmed Siddiqui, who passed away at Karachi, on 04.07.1999.
4. Per averments made in SMA No,59 of 2005, Muhammad Ahmed Siddiqui from second marriage with Nafeesa Siddiqui has two [2] sons and two [2] daughters, namely, [i]. Waqar Ahmed Siddiqi, [ii]. Mst. Shaista Ahmed [iii]. Mst. Nadra Ahmed and [iv]. Riaz Ahmed Siddiqui and only one daughter viz. Mst. Shehnaz Parveen [Respondent herein], from his ex-wife. Mst. Shahnaz Parveen admittedly is a step-sister of the appellants. Perhaps, on account of some dispute arose between the father of the appellants and mother of Mst. Shehnaz Parveen, the mother of Respondent herein, was divorced and, thereafter, Muhammad Ahmed Siddiqui, contracted a second marriage with Mst. Nafeesa Siddiqui, from whom wedlock, the four [04] appellants herein were born.
5. Muhammad Ahmed Siddiqui, as averred, during his lifetime. on15.6.1970, verbally gifted out the immovable property bearing No,11-N, Block No,2, PECHS, Karachi, [hereinafter referred to as 'subject property], which property, as claimed by the sons and daughters is/was owned by Late Muhammad Ahmed Siddiqui, [who as stated was a Superintendent in Naval Headquarters, Karachi], to appellants' mother namely Mst. Nafeesa Siddiqui., It is worth to note that the name of Mst. Nafeesa Siddiqui as donee in the DECLARATION OF GIFT, made in 'confirmation' of verbal gift and reduced into writing on 15.11.1973, has been mentioned as Nafeesa Fatima daughter of [Late] Mr. Hashmat Ali. Being relevant, for ready reference, Declaration of Gift dated 15.11.1973, is reproduced herein-below:- Exh. '5/2'
DECLARATION OF GIFT In confirmation of my verbal declaration of fifteenth day of June 1970, I Mr. Mohd. Ahnzad Siddiqui son of Late Mr. Asghar Ali Supdt. Naval. Headquarters, Karachi adult, Muslim, do hereby affirm and state as follows ):- That on the fifteenth day of June, Nineteen Hundred and Seventy the said Mr. Muhammad Ahmad Siddiqui of my own free will and without any undue pressure, made by word of mouth a Gift of my House No,11-N Block No,2 P.E.C.H. Society, Karachi, to my wife, Mst. Nafis Fatima daughter of Late Mr. Hashmat Ali, and divested myself completely of all ownership and dominion over the subject of the gift.
That I handed over full and exclusive possession of the said property to the said Mst. Nafis Fatima, That I surrendered all interests and rights in the said property in favour of said Mst. Nafis Fatima without any condition or consideration and simultaneously she became responsible for all dues and Taxes in respect of the said property. That the said Mst. Nafis Fatima accepted the gift of the said property and assumed full physical possession thereof on the same date simultaneously. ,-,-,-,-,-,-,-,-,-,-,-,-, I Mst. Nafis Fatifna daughter of late Mr. Hushmat Ali resident of House No,4/6, Nazimabad Karachi hereby declare that my husband the said Mr. Mohd. Ahmad Siddiqui doner, Gifted away the said property in the presence of witnesses in my favour on 15th June, Nineteen hundred and seventy, and I accepted the gift and that he put me in possession of the said property on the said date, this 15th day of November, Nineteen hundred and seventy three. [Underlining is ours] Sd/- DONOR: (Mohd. Ahmad Siddiqui )
Sd/- DONEE:(MST. NAFIS FATIMA )
Witness No,1 Sd/- Witness No,2 Sd/- 6. This is no body's case that MST. NAFEESA FATIMA in whose favour the gift was made, is either not the 2nd wife of Late Muhammad Ahmed Siddiqui or otherwise, her father viz. Mr. Hashmat Ali, was/is not a father-in-law of Late Muhammad Ahmed Siddiqui, who admittedly is the father of the four [4] appellants and Respondent herein, viz. Shahnaz Parveen, [step-sister of the appellants].
The father of the appellants and Respondent undisputedly, died in Karachi, on 04.06.1977, but neither the appellants nor the respondent herein till date, filed any Petition for obtaining a Succession Certificate/Letter of Administration or otherwise, filed any suit for Administration of properties/assets, if any, left behind by Late Muhammad Ahmed Siddiqui. Besides, during the lifetime of late Muhammad Ahmed Siddiqui and late Mst. Nafeesa Fatima Siddiqui, no one has challenged the Gift in favour of Appellants' mother. Not only this, till date, Respondent herein,' has not challenged the said Gift by way of filing any suit for cancellation and/or declaration of the said document as bogus and/or otherwise, without any legal effect. The father of the Appellants and Respondent herein, admittedly, has died on 04.06.1977.
7. The 'subject property' it is significant to note, was not mutated in the name of Mst. Nafeesa Fatima in the record of P.E.C.H. Society, during the lifetime of Late Muhammad Ahmed Siddiqui though in this respect, an application, later on was filed on 11.07.1984, with Honorary Secretary P.E.C.H.S, Karachi. The application of Mst. Nafeesa Fatima dated 11.7.1984, being relevant is reproduced herein-below: Exh. '5/3'
To, The Honorary Secretary P.E. C.H. Society Karachi No,29 Sir, Most Respectfully, I beg to say that the house No, 11-N Block No, 2 P.E. C.H.S. is named of my husband named Mohd. Ahmad Siddiqi who has died in 1977 and he has given me a gift of his house in your life and I requested you under notice of your Society of 6, May 1984 published in Akhbar-e Jang. So please transfer my name Nails Fatima instead of my husband name Late Mohd Ahmad Siddiqi I shall be very thankful to you. (Underlining is ours)
Sd/- 11/7/84 Name :- Nafis Fatima Fathers name:-Hashmat Ali House No :- 11-N Block No,2 P.E.C.H.S. Karachi No.29
8. The SMA No,59/2005, filed by Appellant No,1 viz. Waqar Siddiqui under section 278 of the Succession Act, XXXIV of 1925, upon the death of Mst. Nafeesa Siddiqui on 04.07.1999 for grant of Letter of Administration in respect of properties and assets belonging to Late MST. NAFEESA SIDDIQUI wife of late Muhammad Ahmed Siddiqui, when came-up before the Court on 17.5.2005, of course, after fulfilling all the requisite formalities including publication in 'Daily Jang' dated 25.4.2005, then the following order was passed: - Dated: 17.5.2005 Mr. Shah Nawaz for the petitioners.
By this petition the petitioner seeks Letter of Administration with regard to the-estate of the deceased Nafeesa Siddiqui who died at Karachi on 4.7.1999. The petitioner claims that the house situated on Plot No, 11-N, Block-2, PECHS, Karachi, comprises of the estate of the deceased that was gifted to her by his late father Muhammad Ahmad Siddiqui. Admittedly the said property is still in the name of late Muhammad Ahmed Siddiqui. On query it has also been disclosed by the petitioner, who is also present in Court, that the name of his sister and daughter of late Muhammad Ahmed Siddiqui from his first wife is Shehnaz Parveen. Said Shahida Parveen is required to be joined in the present proceedings as the property is still in the name of the deceased father of the petitioner. The Petitioner undertakes to supply complete address and particulars of said Shehnaz Parveen in the office within one week. Notice be issued to Mst. Shehnaz Parveen after obtaining such particulars. [Underlining is ours] Adjourned.
Sd/- Judge
9. On service of notice issued to Mst. Shehnaz Parveen daughter of [Late] Muhammad Ahmed Siddiqui [Respondent herein], as per the aforesaid Order Mst. Shahnaz Perveen appeared before the Court on 23.11.2005 along with her counsel when, in her presence, the following order was passed: - 23.11.2005 Mr. Tariq Qureshi, Advocate for the Petitioner Mr. Zahid Qureshi, Advocate and the Objector Shahnaz Perveen, present in Court.
Objector Shahnaz Perveen has filed objections. She has challenged the gift deed dated 15.6.05, alleged to have been executed by Mohammad Ahmed Siddiqui, in favour of his then wife, Mst.
Nafees Fatima. The matter is to be decided on the basis of evidence to be recorded after providing an opportunity to the parties. Accordingly this petition is ordered to be converted into a suit for administration and numbered accordingly. [Underlining is ours] Mr. Zahid Siddiqui, Advocate undertakes to file w.s. within four weeks.
Sd/- Judge
10. On conversion of SMA No,59/2005 into a 'SUIT FOR ADMINISTRATION' the same was re-numbered as Suit No,1502/2005 [Waqar Ahmed Siddiqui and 3 others v. Shehnaz Perveen daughter of Late Muhammad Ahmed Siddiqui] and later on, as appears, plaintiffs were permitted to file 'fresh plaint' as per order dated 20.11.2006. For convenience purposes Order dated 20.11.2006, is reproduced herein below:-
20. 11 . 2006 Mr. Muhammad Habib Jalib, Advocate.
Mr. Zahid Ali Siddiqui, Advocate.
The CMA No,2667/06 has been filed under section 151, C.P.C. by the defendant for inclusion of plot bearing No, B-11, KDA Scheme 33, Super High Way Karachi, measuring 400 square yards in estate of deceased on the ground that the deceased Muhammad Ahmed Siddiqui got that plot booked in 1976 and paid Rs,4000/- in two instalments. On the other hand Mr. Habib Jalib learned counsel for the plaintiff submits that although an amount of Rs, 4000/- was paid only but later on Rs,79,400/- were paid by the plaintiff in 1980 and onward therefore that plot cannot be considered as the property of the deceased. To controvert the payment situation, Mr. Zahid Ali Siddiqui has submitted that entire amount has been paid from the funds of the deceased which were left by him.
After hearing and going through the material on record, it is being established that the plot in question was booked by deceased Muhammad Ahmed Siddiqui and atleast admittedly an amount of Rs,4000/- was paid by the deceased therefore, this plot may be considered in the estate of deceased but subject to the payment made by the parties keeping in view the relevant time and the value of the money at that time and further subject to the evidence which may come on record. In the circumstances this CMA I allowed to that extent.
2- Deferred.
3- This CMA No,8400/05 under section 6 Rule 17, C.P.C. is dismissed with the consent of learned counsel of the defendant that the plaintiff may file a plaint as after conversion of the SMA into Suit fresh pleadings were necessary and secondly on the ground that the CMA No,2667/06 has been allowed today, therefore, one more property is to be included in this dispute. Order accordingly.
The plaint may be filed within a period of 15 days with its advance copy to other side counsel.
[Underlining is ours] SD/- JUDGE
11. Pursuant to order dated 20.11.2006, the plaintiffs [appellants herein] filed their Amended PLAINT on 04.12.2006. On the record of suit for 'ADMINISTRATION' bearing Suit No,1502/2005 [Waqar Ahmed and 3 others v. Mst. Shehnaz Parveen], not only the defendant's [Respondent herein] written- statement originally filed on 21.02.2005, is available but also the Amended written-statement, filed on 26.01.2017, wherein, besides, the stand taken by the four [4] plaintiffs [Appellants herein], the adverse assertions made therein, have also been specifically denied/controverted. The prayers sought in the Amended Plaint filed on 04.12.2006, read as follows:-
(i) To grant Letters of Administration in favour of the plaintiffs in respect of the property specified at Sr No,1 in the schedule of property in question of Mst. Nafessa Siddiqi in accordance with their respective shares under the Islamic Law and direct the concerned secretary of the P.E.C.H.S., Karachi to transfer and mutate the suit property No,11-N, Block 2, P.E.C.H.S, Karachi in the names of plaintiffs being legal heirs of Mst. Nafeesa Siddiqi and make entry in this regard in the record of rights. [Underlining is ours]
(ii) To grant Letters of Administration in favour of the plaintiffs in respect of the property specified at Sr No,2 in the schedule of property in question of Mst. Nafessa Siddiqi in accordance with their respective shares under the Islamic law direct the concerned secretary of Ashraf Ali Memorial Cooperative Housing Society to transfer and mutate the said plot in the names of plaintiffs being legal heirs of Mst. Nafeesa Siddiqi.
(iii)To direct the defendant to deposit the cash of Rs,13,12500/= as the difference of the present market value of the flat bearing No,35, RC, 6/7 Mohan Lal Bhagwandas Building, Patel Road, Karachi as present market value of said flat is Rs,15,00,000/- (Fifteen lacs)- approximately and also deposit cash Rs,3,50,000/= as rent of 27 years of the said flat as well as the further amount expensed on the defendant's marriage to Nazir which will be kept by Nazir in his safe custody and amount should be distributed between the plaintiffs.
(iv)To direct the defendant to receive her 1/8 share out of Rs,4000/= which was deposited by the deceased father Muhammad Ahmed Siddiqi in 1975 and 1976 to Ashraf Ali Memorial Society as per Muhammadan Law which may be converted at present rate.
(v)Cost of the suit.
(vi)To grant any other relief or relieves which this Hon'ble Court deems fit and proper under the circumstances."
12. In the schedule of properties filed along with the Amended. Plaint filed on 04.12.2006, the details of three [3] immovable properties have been given as follows:
1. House on Plot No,11-N , measuring 200 sq. yds. In Block-2, situated at P.E.C.H., Society, Shahrah- e-Quaideen, Karachi.
2. Plot No,B-11, KDA Scheme 33, Ashraf Ali Memorial Society, Karachi.
3. Flat No,35, RC, 6/7 Mohan Lal Bhagwandas Building, Patel Road, Karachi.
13. On 02.04.2007, the Court out of the pleadings framed the following seven [7] issues: -
1. Whether deceased Muhammad Ahmed Siddiqui on the date of his death was the owner of the immovable properties i,e, House No,11- N, Block-2, PECHS, Karachi, Plot No,11-B, Ashraf Ali Memorial Housing Society, KDA Scheme 33, Karachi and Flat No,22, R-C, 6/7, Mohanlal Bhagwandas Building, Patel Road, Karachi? [Underlining is ours]
2. Whether at the time of death the deceased has any movable property?
3. Whether the installments of the plot bearing No,11-B, Ashraf All Memorial Housing Society, KDA Scheme No,33, Karachi, which was booked by the deceased with the payment of Rs,4000/- (Rupees four thousand only) were paid by the plaintiff to the tune of Rs,79,400/- (Rupees seventy nine thousand four hundred only)?
4. Whether the flat was sold by the plaintiffs and the consideration received by them was spent on the marriage of the defendant?
5. Whether the house located in PECHS was gifted by the deceased to his wife Mst. Nafeesa Siddiqui during his lifetime? [Underlining is ours]
6. Whether the defendant is entitled to her share in the properties left by the deceased?
7. What should the decree be?
14. Further, vide Order dated 02.04.2007, not only parties were directed to submit their list of witnesses and documents within one month w,e,f, 02.04.2007, but also then, a Commissioner was appointed for recording evidence of the parties at the cost of plaintiffs within four [4] months w,e,f, 07.03.2007. For one reason or the other however, evidence of parties could not be completely recorded by the Commissioner, appointed for the purpose of evidence of parties from time to time. Ultimately, Nazir of this Court, was appointed as Commissioner to record the remaining evidence. Finally, in terms of order dated 24.12.2013, the matter was ordered to be posted for arguments only.
15. Lastly, on 09.02.2017 when, the above suit for administration filed by the Appellant herein came- up before the Court, then arguments were heard and thereafter, on 18.05.2017, the Court while, answering Issues No,1 to 5 jointly, the plaintiff's suit was partly decreed to the extent of House No,11- N, Block-2, PECH Society, Karachi, and observation made in respect of another property i,e, Plot No,B- 1 , KDA Scheme No,33, Ashraf Ali Memorial Society, Karachi and final decree was also ordered to be prepared accordingly. Operative part of un-amended judgment i,e, Para 40 reads as follows: - "40. Keeping in view the above position, discussion and case law cited above, the suit of the plaintiffs is decreed to the extent of House No,11-N, Block No,2 PECHS Karachi and observation made in respect of property i,e, plot No,B-11 and direct the final decree be prepared accordingly.
Nazir of this Court who has already been appointed as Commissioner is to act as an Administrator of House No,11-N, Block No,2, PECHS Karachi, S.M.A. bearing No,59 of 2005 left by deceased Mst. Nafeesa Siddiqui. The expenses will be met from the assets left by deceased Mst.
Nafeesa Siddiqui. The property is not partition-able horizontally or vertically to sell the same and distribute the shares amongst the legal heirs of deceased Mst. Nafeesa. 1 therefore, pass decree as provided under Order 20 Rule 13 CPC read with Form-18 of Appendix-D to Schedule-1 of the Code of Civil Procedure and appoint Nazir of this Court as Receiver with all powers to auction the said property. The plaintiffs and defendant are allowed to participate in the same proceedings, distribute the sale price amongst all the plaintiffs according to Mohammadan Law of Inheritance.
The Nazir is allowed to withdraw Rs,25,000/- as fees out of the sale price. The Objections filed by the defendant to Nazir's Report are disposed of accordingly. [Underlining is ours] SD/06.05.2017 JUDGE Announced by me Sd/- 18/05/2017 (JUSTICE ZAFAR AHMED RAJPUT)
16.Accordingly, decree was prepared in terms of the operative part of the Judgment dated 24.05.2017. For ready reference the executable / operative part of decree dated 24.05.2017, originally passed in Suit No,1502 of 2005 [Waqar Ahmed Siddiqui and 3 others v. Shehnaz Perveen] is reproduced herein below: - "It is hereby ordered that the suit of the plaintiff be and is hereby decreed to the extent of House No, 11-N, Block No,2, PECHS, Karachi and observation made in respect of property Le. plot No,B-11 and direct the final decree be prepared accordingly. Nazir of this Court who has already been appointed as Commissioner is to act as an Administrator of House No,11-N, Block No,2, PECHS, Karachi, SMA bearing No,59 of 2005 left by deceased Mst. Nafeesa Ahmed Siddiqui. The expenses will be met from the assets left by deceased Mst. Nafeesa Siddiqui. The property is not partition- able horizontally or vertically to sell the same and distribute the shares amongst the legal heirs of deceased Mst. Nafeesa.
It is hereby further ordered that the suit of plaintiff is also decreed as provided under Order XX Rule 13, C.P.C. read with Form 18. of Appendix-D to Schedule-I of the Code of Civil Procedure and appoint Nazir of this Court as Receiver with all powers to auction the said property. The plaintiffs and defendant are allowed to participate in the same proceedings, distribute the sale price amongst all the plaintiffs according to Mohammadan Law of Inheritance. The Nazir is allowed to withdraw Rs,25,000/- as fees out of the sale price." [Underlining is ours] 17.The judgment and decree as seen were passed on 24.05.2017, but no one opted to come forward or otherwise, seemed aggrieved and dis-satisfied with the said judgment and decree passed by a Single Judge of this Court to file any appeal. The defendant [Respondent herein], however, chosen to file an Application under section 152 C.P.C. for AMENDMENT OF JUDGMENT AND DECREE bearing CMA No,9428 of 2017. On 09.06.2017 when, CMA No,9428/2017 being an APPLICATION under section 152, C.P.C., filed by the Respondent herein [Defendant in Suit No,1502/2005] came-up before the Court then while, granting urgent application, NOTICE on C.M.A. No,9428/2017, was issued to the plaintiffs as well as their counsel for 20.07.2017. On 20.07.2017 while, adjourning the matter for 24.07.2017, it was clarified to the plaintiff that no any further time, shall be granted / available to the plaintiffs for filing objections if any.
18. The plaintiff No,1 [Appellant No,1 herein], who is also special attorney of other plaintiffs [Appellants Nos, 2, 3 and 4], filed a STATEMENT on 21.7.2017, whereby, an adjournment was sought, on account of sickness and engaging a new counsel. The statement so filed on 21.07.2017 for ready reference is reproduced herein below: - In the High Court of Sindh at Karachi Suit for Administration 1502/2005 Waqar Siddigi.........Plaintiff No,1 and Attorney of other three STATEMENT I Wagar Siddigi son of Muhammad Ahmad Siddigi, a Canadian Citizen, do hereby state on oath as under that, I am fully conversant to the matter. I live in Canada and I arrived Pakistan for the case on 11th July, 2017. I have been acing health problems since then. Today I visited hospital to see the doctor and he advised me three days bed rest and he recommended several tests. I have been advised to take medicines and report to the doctor.
I therefore am not able to file objections on the application C.M.A. 9428/2017 dated 2/6/2017. The notice of the said application was delivered by the bailiff of the Court on the evening of July 17, 2017.
Due to sickness I am also not able to engage new counsel. I need time. Therefore, I seek adjournment till the summer vacation and after recovery the objections will be filed. [Underlining is ours] I am attaching a medical note/prescription of the doctor Regards, Karachi Dated 21/07/2017 SD/- Waqar Siddiqi Plaintiff (In Person)
19. On 24.07.2017, the request for adjournment on the basis of pleas/request made in the aforesaid statement filed on 21.07.2017, by the plaintiff No,1 [Appellant No,1 herein], was declined and the Court then proceeded with application under section 152, C.P.C. [C.M.A. No,9428/2017], filed by Defendant [Respondent herein], for Amendment of judgment and decree, dated 18.05.2017 and 24.05.2017 respectively passed in Suit No,1502/2005 [Waqar Ahmed. Siddiqui and 3 others v. Shehnaz Parveen] and consequently the same was allowed through the 'impugned order' dated 24.07.2017.
Para 4 of the impugned order dated 24.7.2017, being relevant is reproduced herein below:-
4. This application stands allowed. Consequently let the required correction be made in red ink in the relevant portion to the text of Paragraph No,40 (the concluding paragraph) of the Judgment as well as the corresponding paragraph(s) of the decree only, by crossing out and insertion (s) as follows and to be read accordingly.
(To remove any possible ambiguity only the existing text and the required are given below)
At Present: Left by deceased Mst. Nafeesa Siddiqui. The expenses will be met from the assets left by deceased Mst. Nafeesa Siddiqui. The property is not partition-able horizontally or vertically to sell the same and distribute the shares amongst the legal heirs of deceased Mst. Nafeesa. I therefore, pass decree as provided under Order )0C Rule 13, C.P.C. read with Form-18 of Appendix-D to Scheme-I of the Code of Civil Procedure and appoint Nazir of this Court as Receiver with all powers to auction the said property. The plaintiff's and defendant are allowed to participate in the same proceedings, distribute the sale price amongst all the plaintiffs according to Mohammadan Law of Inheritance. The Nazir is allowed to withdraw Rs,25,000/- as Fees out of the sale price. [Underlining is ours)
To: Left by late Mr. Muhammad Ahmed Siddiqui lastly standing in the name of Mst. Nafeesa Siddiqui, being in actual ownership of Mr. Muhammad Ahmed Siddiqui. The expenses shall be met from the sale of the said property, The property is not partition-able horizontally or vertically as such to sell the same and distribute the shares amongst the legal heirs of deceased Mst. Nafeesa all the legal heirs of the deceased Muhammad Ahmed Siddiqui i,e, the plaintiffs and the defendant No,1 . I therefore, pass decree as provided under Order XX Rule 13, C.P.C. read with Form-18 of Appendix-D to Scheme-I of the Code of Civil Procedure and appoint Nazir of this Court as. Receiver with all powers to auction the said property. The plaintiffs and defendant are allowed to participate in the same proceedings, the sale price to be distributed amongst all the Plaintiffs said parties, i,e, all the legal heirs of Late Mr. Muhammad Ahmed Siddiqui according to Mohammadan Law of Inheritance. The Nazir is allowed to withdraw Rs,25,000/- as Fees out of the sale price. [Underlining is ours] The application stands disposed of with no order as to costs."
20. On account of the aforesaid AMENDMENTS in the Judgment and Decree originally passed on 18.05.2017 and 24.05.2017 respectively, through the impugned order dated 24.7.2017, the appellants feeling aggrieved and dis-satisfied, have approached this Court by way of the instant High Court Appeal No,331/2017 [Waqar Ahmed Siddiqui and 3 others v. Shehnaz Parveen] inter alia for restoration of the original Judgment and Decree passed by this Court in a suit for administration bearing No,1502/2005 [Waqar Ahmed Siddiqui and 3 others v. Shehnaz Parveen], with prayers as follows:- "A]. To set aside the impugned order dated 24.07.2017 and dismiss the application under section 152, C.P.C. filed by the respondent.
B] To restore the judgment dated 18.05.2017 and decree dated 24.05.2017 passed earlier in the Suit No,1502/2005 being valid and legal as per law and justice.
C]. To call R&P of Suit No,1502/2005 from the respective branch of this Hon'ble Court.
DJ. To suspend the operation of impugned order dated 27.7.2017 till the disposal of this instant appeal.
El Any other relief(s) that this Hon'ble Court may deem fit and proper in the circumstances of this appeal.
F]. Cost of the appeal may also be awarded.
21. On 02.01.2018 when, the instant High Court Appeal came-up before the Division Bench of this Court, then the following order was passed: - "02.01.2018 Mr. Muniruddin advocate for the appellants Mr Zahid Hussain advocate for the Respondents Kamruddin Junejo, Nazir High Court of Sindh ------------------------------------------ The bone of contention between the parties is that the appellants claim that after judgment, some modification was made in the Judgment, whereas, learned counsel or the res ondent submits that it was merely a typing error that was rectified. This contention needs further examination by this Court in appeal. So far as role of Nazir is concerned, he is present and submits that original title documents have not been deposited so auction proceedings could not be commenced and in this regard he has already filed a reference in the suit for further orders which is pending. Let this matter be fixed for hearing on 10.01.2018 when it is already fixed. Both learned counsel agreed that since short point is involved, the matter may be decided at katcha peshi stage. Order accordingly. Till next date of hearing the Nazir shall not conduct auction proceedings. [Underlining is ours] SD/-JUDGE SD/-JUDGE"
22.Lastly, on 10.01.2018 when, again the above High Court Appeal came-up before us then we heard the appellants present in person and Mr. Zahid Siddiqui, learned counsel for the respondent and also perused the record with their assistance.
23.Mr. Waqar Ahmed Siddiqui [Appellant No,1], who is also attorney of the remaining appellants, contended that the impugned order dated 24.07.2017. passed by learned Single Judge of this Court on the APPLICATION under section 152, C.P.C. bearing C.M.A. No,9428/2017 besides, erroneous, perverse is against the law, as such, it is liable to be set aside otherwise, the Appellants shall be prejudiced seriously.
24.Per Appellants' stand the 'impugned order' dated 24.07.2017, is not only arbitrary but has also been passed against the well settlement principles of law that no one can be condemned unheard. The Appellants next contended that the learned Single Judge while, ignoring the statement and medical prescription/note for bed rest from Liaquat National Hospital hurriedly decided the Application under section 152, C.P.C. [C.M.A. No,9428 of 2017], filed by the Respondent herein, without giving an opportunity of hearing. While arguing the case, Appellants urged, that as the 'impugned order' dated 24.07.2017 besides, erroneous has been passed illegally by re-opening the entire case of contentious nature.
25. Per Appellants' assertions, the Judgment and decree originally passed on 18.05.2017 and 24.05.2017 respectively, have been passed after due application of judicial mind, as such, the same were/are not to pen to challenge/amendments on the Application under section 152, C.P.C., as the originally passed Judgment and decree, were based on sound legal grounds. The Respondent's application under section 152, C.P.C. was not only misconceived but also mis-leading. The Appellant No,1, next urged that the 'impugned order' dated 24.07.2017 passed by another Single Judge in Chamber in fact has been passed without due application of judicial mind. Further, the Court by invoking section 152, C.P.C., cannot go beyond the scope of section 152, C.P.C., which is meant only for correction of clerical or arithmetical omission or error in Judgment, Decree or Order arising therein from accidental slip or omission.
26. As against Mr. Zahid Siddiqui, learned counsel for the Respondent herein viz. Mst. Shehnaz Parveen contended that Respondent, as being an elder sister of Appellants, is one of the legal heirs of deceased Muhammad Ahmed Sidiqqui, who died in Karachi on 04.06.1977, is entitled to receive her share from the immovable property bearing House No,11-N measuring 200 sq.yds in Block-2, situated in P.E.C.H.S., Shahrah-e-Quaideen, Karachi which property as urged despite so-called GIFT in favour of mother of the Appellants is still standing in the name of late father Muhammad Ahmed Siddiqui. Per Mr. Zahid Siddiqui, the impugned order of 24.07.2017 passed on the Respondent's Application under section 152, C.P.C. [C.M.A. No,9428/2017], is thus proper and quite in accordance with law. According to Respondent's counsel, an opportunity, though was given to the Appellants but they failed and/or avoided to contest and satisfy the Court.
27. Mr. Zahid Siddiqui, learned counsel for Respondent [Defendant in Suit No,1502 of 2005], next contended that Appellants, in fact have accepted all the contents of judgment dated 18.05.2017 and decree dated 24.5.2017, passed by another Single Judge in Chamber of this Court otherwise, they would have preferred an appeal there against. According to Respondent's stand, per Para 32 of the judgment, the Appellants have badly failed to establish the genuineness of the Gift in favour of the Appellants' mother Nafeesa Siddiqui, so as to have avoided the gift as being not a NULL AND VOID document. Per learned counsel the burden of proof was upon the Appellants to prove the genuineness of the GIFT, as held in the case of Aurangzeb through LR' s and others v. Muhammad Jaffar and another [2007 SCM R 236]. The relevant portion upon which reliance has been placed by Mr. Zahid Siddiqui, Advocate reads as follows:- "9. ...It is a settled law that the transaction or sale or gift, that it is the duty of the beneficiary and heavy onus lay on the beneficiary to prove by convincing evidence satisfying the judicial conscience of the C01411 that the transaction shown to be a gift was executed,by the doner in favour of the donee."
28. Mr. Zahid Siddiqui, learned counsel for the Respondent viz. Shahnaz Perveen next urged that since, all the witnesses of the 'GIFT' have been chosen out of the family, as such, Exh. '5/2', is not a sufficient proof for to accept the 'GIFT DEED' as a valid GIFT otherwise, it will defeat the object and purpose of section 149 of the Muhammadan Law having been observed by the learned Single Judge in Chamber in Para 33 of the Judgment dated 18.5.2017 and Decree dated 24.05.2017, originally passed by another Single Judge of this Court in Chamber. Per Para 33 of the Judgment dated 18.5.2017, the plaintiffs [Appellants herein], have admitted in cross-examination that : a. "All the six maternal uncles were alive at the time of execution of alleged forged gift. " b. "It is correct that I have not filed affidavit of my relative in respect of gift deed." c. "It is correct that I have not produced my proof that fact of gift deed was disclosed to relatives." d. "It is correct that a short while ago I have stated that one maternal uncle was residing in our house when the gift deed was executed."
29. Besides, as urged by Mr. Zahid Siddiqui, in para 35 of the judgment dated 18.05.2017 and Decree dated 24.05.2017 respectively, it has been clearly concluded that the property in question i,e, House No,11-N, Block-2 PECHS, Karachi, was owned at the time of death by the deceased father. Per learned counsel, since, the Defendant [Respondent herein], is a daughter of the deceased viz. Muhammad Ahmed Siddiqui from his ex-wife, hence, she as being a step-sister of the Appellants is entitled to gel her share from the property in question, as per Sharia in a- Suit for 'Administration' filed by the Appellants for Administration of properties/assets left behind by the mother of Appellants. In this regard reference was made to the cases [i]. Muhammad Zahid v. Mst. Ghazala Zakir (PLD 2011 Kar 831 and [ii]. Sindh Industrial Trading Estates Ltd. through Secretary v.
Muhammad Ilyas and another (2005 SCM R 309] wherein, it was observed respectively as follows:- (i]. PLD 2011 KAR 83
13. We would therefore (subject to the test formulated in para 11 above] sum up the foregoing analysis in the form of the following propositions: a) when the question is whether a property forms part of the estate of a deceased and a determinatkm of this question involves a person who is a stranger to the estate, then question should be determined by means of separate proceedings; b) proposition (a) is subject to the qualification that if the question is also whether the stranger is a sharer in the estate then the matter comes within the scope of administration suit; when .a determination of the aforesaid question involves a person who is a sharer in the estate then the question comes within the scope of the administration suit, and this is so regardless of whether the sharer claims through or under the deceased (e.g. by way of a gift or sale from the latter) or in his own right; d) it is immaterial whether or not the property in question stood in the name of the deceased at the time of his death, and it is likewise immaterial whether any alienation was by way of a registered instrument or otherwise.
(ii]. 2005 SCMR 309 "In the matter pertaining to letters of administration the Court only determined the question about the assets left by the deceased and inherited by the legal heirs and in appropriate cases undertook to investigate adverse claim between the legal heirs in the said proceedings, but the same does not tantamount to confirming title on the legal heirs."
30. Mr. Zahid Siddiqui, learned counsel for the Respondent emphatically contended that the AMENDMENTS/CORRECTIONS through the 'impugned order' dated 24.07.2017, passed by the Hon'ble Single Judge of this Court passed on CMA No,9428 of 2017 i,e, [Application under section 152, C.P.C.], is a proper and valid order and as alleged does not suffer from any illegality.
31. As far as validity of GIFT is concerned, in this regard, the contents of Declaration of GIFT [Exh.
'5/2'] speak for itself. It is significant to note that under Muhammadan Law for a valid and binding Gift the fulfillment of 3 ingredients are essential i,e, [i]. Declaration of Gift by the Donor [ii].
Acceptance of Gift by the Donee and [iii]. Delivery of Possession of Corpus. Of course, a valid gift can be effected orally if, the aforesaid pre-requisites are complied with/fulfilled. For valid Gift a written instrument is not the requirement of Muslim Law or otherwise, under the Registration Act, 1908 a gift needs to be compulsorily registered. On the above aspect of the matter reliance can be placed on the case of Muhammad and 2 others v. Mst. Khalida Awan and another [2010 SCM R 3421 wherein, it was held as under:-- "6. Under the Muhammedan Law, a gift, in order. to be valid and binding upon the parties, must fulfill the following three conditions:-
(a) a declaration of gift by the donor;
(b) acceptance of gift by the donee; and
(c) delivery of possession of corpus.
On the fulfilment of the above three ingredients, a valid gift comes into existence. A valid gift can be effected orally, if the pre-requisites are complied with. Written instrument, is not the requirement under the Muslim Law nor is the same compulsorily-registerable under the Registration Act, 1908."
32. Regarding maintainability of the Application under section 152, C.P.C. [C.M.A. No,9428/2017], Mr. Zahid Siddiqui, learned counsel for Respondent [Defendant], forcefully contended that the Application under section 152, C.P.C., besides, being proper, the amendments sought thereby in the Judgment and decree dated 18.05.2017 and 24.05.2017 respectively are / were within the scope of section 152, C.P.C. Reliance in this regard was placed on the cases of [i]. Nazar Muhamamd and others v. Ghulam Mustafa and 3 others [2004 YLR 11991, wherein, it was observed as follows:
3. ....It is settled law that; for the purposes of correction of a decree-sheet, so as to bring it in line with the judgment, the Court has the powers even to suo motu make the correction, or an application in this behalf by the concerned party, can be moved at any time. There is absolutely no bar of limitation in this regard. Resultantly, even if the legal heirs of Mst. Raj Bibi had applied for the correction of the decree 'after the lapse of 12 years, yet the Court. without notice, as a matter of duty, being satisfied that the request is genuine and bona fide and the mistake in the decree is apparent, conspicuous and floating on the face of the record, could correct the decree without notice to the opposite side. In such situation, the rule of violation of hearing principles shall not be applicable." ...... "5. ...Therefore, in exercise of my revisional jurisdiction, I do not find this to be a fit case for interference, when it would vividly be an injustice 'to a person who, had got the decree in his favour, but the decree-sheet was incorrectly drawn by the Court; should be deprived of the fruits of the decree, as the principle that, no one should be prejudiced by the act of the Court, is squarely applicable to the case in hand." ............ 32.Heard.
33.The Appellants' case is that the originally passed Judgment and Decree dated 18.05.2017 and 24.05.2017 respectively, passed by a Single Judge of this Court in chamber could not have been amended in a manner as to completely alter/amend the Judgment and Decree originally passed, by another Single Judge of this Court in chamber, on the Respondent's [Defendant's] Application under section 152, C.P.C. and that too without hearing the Appellants. According to Appellants, the scope of section 152, C.P.C. is limited, as this section deals with correction of clerical and typographical mistakes that have been in-advertently occurred in the Judgment and Decree or Order and are apparent on the face of record. Subject to his exception, no Judgment and Decree or Order of a Court of law can be altered or modified under section 152, C.P.C. Any other type of correction/amendment can only be done through appeal or review in accordance with law.
Moreover, clerical or arithmetical error must be a result of a slip of pen or some mistake or omission on the part of the person preparing it.
34.Besides, reliance has been placed on the case of Messrs Al-Aziz Route Transport through Managing Partner v. Messrs Askari Leasing Limited and another [2009 YLR 373], wherein it was observed as follows: "Any clerical or arithmetical omission or error in the order can be corrected by invoking the jurisdiction under section 152 of C.P.C. and the same cannot be used to reopen the case. The specific intent cannot be corrected. The intention is very clear from the said order that the plaintiff has to pay the balance instalments after deducting 6% markup."
35.To reach a just and a fair conclusion, in our opinion, it would appropriate to reproduce herein, section 152, C.P.C. which reads as follows:- "Section 152: Amendment of judgments, decrees or orders Clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from any accidental slip or omission may at any time be corrected by the Court either of its own motion or on the application of any of the parties"
36.The scope of section 152, C.P.C. has been elaborately discussed in the case of Shaukat Ismail Charania v. Mrs. Shakeela Hayat Khan and others (2006 CLC 126], wherein it was observed as follows:-
23. Contention of Mr. Mamnoon, learned counsel for the defendant that it is the only clerical or arithmetical mistakes in judgments and decree or order that could be corrected, in the context of section 152, C. P.C. is half-truth. Whole truth appears to be that, the Court under section 152, C.P.C. is not only competent to correct clerical or Harithmetical mistake but may correct accidental slip or omission as well. Section 152, C.P.C. clearly defines the power of the Court to correct clerical or arithmetical mistake in the judgment, decree or order or errors on account of accidental slip or omission arising therefrom. Section 152, C.P.C. can be conveniently divided into two parts. First half of the section provides authority to correct "clerical or arithmetical mistake in the judgment, decree or order", other half after or provide authority to correct error arising thereon rom an accidental sli or omission. Use o word "or" indicates that, such powers to correct are not conjunctive but disjunctive and qualified. To correct clerical or arithmetical mistake, it means where some mistake either in calculation or numerical figures creeps in, which figures could be verified from the record, or where any 'party, property or fact has been incorrectly described or where some typographical error has creep in, Second half of the section 152 (ibid) contemplates "error arising thereon from any accidental slip or omission". Catchword in the phrase "accidental slip or omission" as used in section 152, C. P. C. is "accidental", it qualifies 'slips' and 'omissions'.
"Accidental" is defined in Chambers 20th Century Dictionary as "happening by chance". In Merriam Webster on line Dictionary, leis defined as "an event occurring by chance or unintentional; happening unexpectedly or by chance or happening without intent or through carelessness" it means "not deliberate". "Omission" is derived from root word "omit", it means "to leave out to fail" (Chambers 20th Century Dictionary). In Merriam Webster on line Dictionary omission is defined to mean, "something neglected or left undone, to leave out or leave unmentioned, to fail to perform". Thus, it could be said that "accidental slip or omission" as used in section 152 C.P.C. means 'to leave out or failure to mention something unintentionally'. Thus, it could be safely said that, it is only where, the slip or omission is accidental or unintentional it could be supplemented or added in exercise of jurisdiction conferred under section 152, C.P.C.
Such course is provided to foster cause of justice, to suppress mischief and to avoid multiplicity of proceedings. However, where slip or omission is intentional and deliberate, it could only be remedied or corrected by way of review if permissible or in appeal or revision as the case may be, as suggested by Mr. Mamnoon.
[Underlining is ours]
25. Thus, it could be seen that the Court do enjoy and could exercise, at any time jurisdiction, to supply the omission or slip provided it is accidental. Court may grant which party has sought or otherwise is found entitled to, the Court is bourn' to grant such relief. Even in cases, where a party on the facts of case is entitled to a relief but has omitted to pray for the same, then it is the duty of the Court to grant such relief Court would be justified, at any point in time to correct not only the clerical or arithmetical errors but also to correct accidental omission or slip that might have crept into the order, judgment or decree."
37. In the above case, the Decree prepared was not the true reflection of the Judgment of the Court. The Court while, allowing the application under section 152, C.P.C. directed the incorporation of reliefs of specific performance contained in the prayer clause of the plaint.
38. From the provision of section 152, C P.C., it-appears that the same are restricted/confined to correction of errors as mentioned therein and arising out from accidential slip or omission. Any other type of correction/amendment other than mentioned is section 152, C.P.C., cannot be corrected under the garb of section 152, C.P.C., rather resort can be made by way of review if, permissible or an appeal or revision, as the case may be, if the error is of contentious nature. On the above aspect of the matter reliance can be placed on the cases of [i]. Ishtiaq Ahmad and 2 others v. Bakhshaya and 7 others [1976 SCM R 420] and Baqar v. Muhammad Rafique and others [2003 SCM R 1401], wherein it was observed as follows:-- [i]. 1976 SCMR 420 "..........that this section permits the correction of clerical or arithmetical mistakes in judgments and decrees etc. or of error: arising from any accidental slip or omission, but does not authorise the Court to the supplement its judgments, decrees or orders by directions which require application of mind, and have the effect of taking away rights which may have otherwise accrued to one party or the other. It may be possible to achieve this result by way of review of the judgment, decree or order under question, but we, express no considered opinion on this point as it does not arise in this case. The High Court was, therefore right in thinking; that the omission to specify a time limit for depositing the pre-emption money was not one which could be supplied under section 152 of the Code.
[ii]. 2003 SCMR 1401 "There is a lot of difference between an arithmetic mistake or an error arising from accidental slip or omission, on the one hand and an omission arising out of contentious nature of dispute between the parties. Whenever the correction under section 152, C. P.C. is referable to a point which is contentious in nature between the parties, the provisions of section 152, C.P.C. cannot be invoked."
It has further been held that--: When a decision depends upon consideration of arguable questions of law, the construction of documents, the determination of rights in view of record, such determination cannot be made by a Court exercising jurisdiction under section 1.52, C.P.C." [Underlining is ours]
39. Significantly, if a lis is decided between the parties by a competent Court of law then, the Court which passed the Judgment and Decree becomes functus officio' and thus under law, cannot re-open the matter except under available provisions of law. Even, in such like situation, section 151, C.P.C., is of no help, as the inherent jurisdiction can only be exercised by a Court of law during pendency of the suit/lis and that too when no other appropriate provision of law/remedy is available. This being the reason, jurisdiction under section 151, C.P.C., is called an inherent jurisdiction of Court.
40.In the case in hand, resort to section 152, C.P.C., in our view, has been made erroneously, as the amendments sought in C.M.A. No,942 of 2017 were outside the scope of section 152, C.P.C. inter alia in view of Para 37 of the Judgment dated 24.07.2017, which read as follows:- Furthermore, preliminary decree as provided under Order XX Rule 13(1), C. P.C. was passed and final decree is to be ordered for taking accounts and inquiries. However, needless to add that if the defendant succeeds in proving her suit [will regarding House No,11-N, Block No,2, P.E.C.H.S Karachi, S.M.A. bearing No,59 of 2005], the parties shall be governed by such decree:"
41.Even otherwise, the Judgment and Decree as amended vide the impugned Order dated 24.07.2017, seems erroneous, as the Appellants herein [Plaintiffs], thereunder, have been deprived from to inherit the share of her deceased mother viz. Mst. Nafeesa Siddiqui who died on 04.07.1999 i,e, much after the death of Muhammad Ahmed Siddiqui on' 04.06.1977.
42.As far as the case laws cited by Mr. Zahid Siddiqui, learned counsel for Respondent herein [Defendant], regarding scope of section 152, C.P.C. are concerned, the same, keeping in view the facts and circumstances of the case are distinguishable as in the case in hand it was not a case of simple correction of typographical error.
43. In view of the foregoing discussion, we have reached the conclusion that the amendments sought by the Respondent [Defendant]. through Application section 152, C.P.C. [C.M.A. No,9428 of 2017] are/were of contentious nature, as such, the originally passed Judgment and Decree of 18.5.2017 and 24.5.2017 respectively, by Hon'ble Judge in chamber of this Court were not open to amendment[s] under the scope of section 152, C.P.C. The 'impugned order' dated 24.07.2017, as such, passed on C.M.A. No, 9428 of 2017 besides, being illegal is erroneous, as no alteration, modification or amendment of a kind to authorize the Court to supplement its judgment, decree or order which needs the application of mind or otherwise, have the effect of taking away the rights which accrue/accrued to one party or the other, can be made under section 152, C.P.C.
44. In the light of the above, we are of the opinion that the 'impugned order', dated 24.07.2017 besides being erroneous is of no legal effect thus hereby, set aside and consequently, the appeal is allowed. C.M.A. No,2708 of 2017 along with office objection also stand disposed of.