MAMOON RASHID SHEIKH, C.J. Through this revision petition filed under Section 115 of the CPC the petitioner has challenged the order, dated 04.07.2019, passed by the learned Civil Judge, Ist Class, Lahore, whereby respondents No.5 & 6's application under Order VI, Rule 15, of the CPC has been allowed.
2. The facts relevant for the present purposes are to the effect that, on 27.05.2016, the petitioner filed a suit for administration and partition of the immovable assets left by the parties' common ancestors, namely Haji Ghias Muhammad and Ruqqia Khanum. It was maintained that besides the property commonly known as 9-Lytton Road, Lahore, which comprises of Plots No.9, 10, 11 and 10-A, there were other properties and immovable assets left behind by the common ancestors of the parties, which required to be administered and to be partitioned. The suit kept on pending due to filing of various miscellaneous applications. Respondents No.5 and 6 instead of filing the written statement filed an application under Order VI, Rule 15 of the CPC, for deletion of plot No.10 from the list of the properties in question, on the ground that plot No.10 had been gifted by Haji Ghias Muhammad, to his son, namely Naeem Rashid (the predecessor-in-interest of respondents No.5 and 6) through a registered gift deed, bearing document No.7716, bahi No.1, Jild No.3761, registered with the Sub Registrar, Lahore on 10.07.1963. The petitioner resisted the application by denying respondents No.5 and 6's claim to the property and stating that Haji Ghias Muhammad had not made any gift of plot No.10 in favour of Naeem Rashid nor did he divest himself from the title of plot No.10 during his lifetime. It was further maintained that Haji Ghias Muhammad had been in exclusive possession of whole of the property commonly known as 9-Lytton Road, Lahore, till he died on 20.03.1996. It was further maintained that neither Naeem Rashid nor his legal heirs ever occupied plot No.10, therefore, the application was liable to be dismissed. The learned trial Court, however, through the impugned order, dated 04.07.2019, allowed the application by inter alia holding that:- "registered gift deed is neither challenged nor cancelled by any competent forum, so, in view of above said discussion, the petition mentioned at serial No.2 is accepted, and plaintiff is directed to file amended plaint after striking out property/plot No.10 from the plaint."
3. The learned counsel for the petitioner submits that the impugned order is not sustainable in the eye of the law because it falls beyond the scope of Rule 15 of Order VI of the CPC. Further submits that in presence of the reply of the petitioner whereby she had denied the factum of the gift and the existence of the gift deed, the passing of the impugned order was the result of illegal exercise of jurisdiction inasmuch as the acceptance of the application amounts to granting a decree to respondents No.5 and 6 without any trial.
4. Further submits that the learned trial Court has committed a jurisdictional error, in that, Section 8 of the Punjab Partition of Immovable Property Act, 2012, has been violated. The said Section makes it incumbent upon the Court to decide and determine the question of title in the immovable property in question and such a decision is to be deemed to be a decree in terms of the CPC.
5. Further submits that respondents No.5 and 6 have failed to file a written statement despite the passage of three (3) years from the filing of the suit. Contends that without filing a written statement and laying a claim over plot No.10 by respondents No.5 and 6, no order in respect of deletion of plot No.10 from the list of the properties in question could have been passed.
6. The learned counsel for respondents No.5 and 6 supports the impugned order. Submits that in absence of a challenge to the registered gift deed, dated 10.07.1963, in favour of Waseem Rashid, the claim of the petitioner and others to the effect that plot No.10 was part of the properties left by the ancestors of the parties was not maintainable.
7. Further submits that the denial by the petitioner in her reply to respondents No.5 and 6's application does not meet the requirement of the law, in that, separate proceedings were required to be initiated to challenge the registered gift deed.
8. Further submits that it is a suit for administration of property. Contends that in such a suit the question of title to property claimed by any heir in his own independent right could not be decided in an administration suit.
9. Further submits that the petitioner is estopped from bringing the instant petition as in pursuance of the impugned order the petitioner has already filed the amended plaint by striking out plot No.10 from the list of properties in question.
10. The learned counsel for respondent No.8 adopts the arguments of learned counsel for respondents No.5 and 6.
11. Respondent No.7 also adopts the arguments of the learned counsel for respondents No.5 and 6.
12. Relies on the judgments reported as "Mt. Shafi-ul-Nisa vs. Mt. Fazal-ul-Nisa" (A.I.R. (37) 1950 (East)
Punjab 276), "Syed Mehdi Hussain Shah vs. Shadoo Bibi and others" (PLD 1962 Supreme Court 291), "Muhammad Sarwar and 2 others vs. Abdul Lateef and another" (PLD 1978 Lahore 391), "Muhammad Younus Qureshi and 5 others vs. Mrs. Feroz Quraishi and 2 others" (1982 CLC 976), "Syed Mohsin Raza Bukhari and 4 others vs. Syed Azra Zenab Bukhari" (1993 CLC 31), "Mst. Ghazala Zakir vs. Muhammad Khurshid and 7 others" (1997 CLC 167), "Muhammad Amin vs. Muhammad Yasin and another through Legal Heirs" (PLD 2001 Lahore 242) and "Mrs. Bilquis Mohsin Butt and 3 others vs. Muhammad Mahmood Butt and 15 others" (2015 CLC 1333).
13. The learned counsel for the petitioner reiterates his earlier arguments and submits that there is no estoppel against law. Moreover, the amended plaints filed by the petitioner have been rejected by the learned trial Court on one ground or the other by maintaining that they were not filed as per the impugned order, dated 04.07.2019.
14. Heard. Record perused.
15. It is observed that Rule 15, of Order VI of the CPC provides that the Court may at any stage of the proceedings order to be struck out or amended any matter in any pleading, which may be unnecessary or scandalous or which may tend to prejudice, embarrass or delay the fair trial of the suit. Respondents No.5 and 6 have tried to make use of this provision of law for deletion of plot No.10 from the list of the properties in question by maintaining that plot No.10 was transferred to Naeem Rashid by way of a registered gift deed by Haji Ghias Muhammad, in the year 1963. The petitioner on the other hand through her reply to respondents No.5 and 6's application not only denied the factum of gift deed but also the existence of the gift deed. In such circumstances, I find that the learned trial Court erred in law in ordering deletion of plot No.10 from the list of properties in question without framing of issues and recording of evidence on this disputed question of fact.
16. Whilst making the above observation. I am mindful of the fact that the learned counsel for respondents No.5 and 6 and the learned counsel for respondent No.8 and respondent No.7 have maintained that since it is a suit for administration of property, therefore, the question of title of a property claimed by a legal heir cannot be determined within these proceedings. I am, however, not in agreement with the said argument for the simple reason that the petitioner's suit is not a suit for administration alone. It is also a suit for partition of property. The petitioner in the title of the suit as also in the body of the plaint has time and again prayed for partition of the properties in question. The Court under the law has to examine the pleadings as a whole and not in isolation. It is settled law that the Court can mold its relief according to the contents of the plaint.
17. The law governing partition of immovable property is the Punjab Partition of Immovable Property Act, 2012.
Section 8 of the Act is relevant for the present purposes. It provides as under:- "(1) When there is a dispute as to the title or share in the immovable property, the Court shall decide such question before proceeding further in the suit under this Act.
(2) The determination of a question of title or share of the immovable property by the Court under subsection (1) shall be deemed to be a decree in terms of the Code."
18. In view of the above explicit provision of law, in presence of a dispute as to the title in plot No.10, the learned trial Court was duty bound to first decide the said dispute by framing of issues and recordal of evidence, before proceeding further in the matter. The learned trial Court has, therefore, exercised its jurisdiction illegally and with material irregularity by ordering deletion of plot No.10 from the list of properties in question without going through the above exercise mandated by law.
19. As to the objection of estoppel raised by the respondents, suffice it to say that I am in agreement with the learned counsel for the petitioner that there is no estoppel against law. Moreover, his contention as to the rejection of the amended plaints by the learned trial Court is also borne out from the record. The respondents have been unable to establish otherwise. It is, therefore, held that the petitioner is within her rights to bring the instant petition.
20. It is further observed that even though the suit was filed in the year, 2016, respondents No.2 to 8 have not filed their written statements. The non-filing of written statements by the said defendants/respondents is such a lapse which can be taken note of in the exercise of the supervisory jurisdiction of this Court with the result that the defence of respondents No.2 to 8 can be struck of. However, in the best interest of the parties and to meet the ends of justice such an action is not proposed.
21. The impugned order, dated 04.07.2019, is accordingly set aside and the application under Order VI, Rule 15, of the CPC filed by respondents No.5 & 6 is hereby dismissed.
22. The parties are directed to appear before the learned trial Court on 17.04.2020, without further notice.
Respondents No.2 to 8 shall be given thirty (30) days' time from the said date to file their written statements raising therein all the legal and factual pleas which are available to them.
23. The learned trial Court shall then proceed to decide the suit expeditiously but no later than seven (7) months from the said date, under intimation to the Deputy Registrar (Judl.) of this Court.
24. The record of the case, which was requisitioned on the last date of hearing, be remitted forthwith to the learned trial Court.
There is no order as to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.