SHAHID BILAL HASSAN J. Succinctly, the present petitioners instituted a suit for administration of property of Talib Hussain alias Fateh Sher son of Umer Bukhsh, Thaheem by caste, resident of Fateh Pur by maintaining that he (Talib Hussain alias Fateh Sher) was sunni Muslim who died on 30.04.1997 leaving behind one Jindwadi (wife) and Nasira Hussain (daughter); that Mst. Nasira Hussain was his daughter from Mst. Taj Bibi because deceased Talib Hussain alias Fateh Sher had married Jindwadi and Taj Bibi; that late Talib Hussain alias Fateh Sher was owner of property in village Hassue Baleel, Fateh Pur Peerati, Tibba Gehli and urban property situated in Jhang Saddar; that defendant Nasira Hussain is in possession of the property and has been misappropriating the benefits; that gold ornaments weighing 20 tolas of deceased Talib Hussain alias Fateh Sher are also in possession of the said Nasira Hussain while other urban immovable property has also been inherited by the present petitioners/plaintiffs; therefore, the suit for administration of property of Talib Hussain and also for cancellation of mutation No.1917, 1920, 2574 and 2577 has been instituted.
The suit was contested by the defendants No.1 to 3 and 6 while submitting written statement wherein they controverted the averments of the plaint and further submitted that Talib Hussain alias Fateh Sher deceased was Asna Ashri Shia while allegedly deceased plaintiff Mst. Jindwadi was issueless wife of the deceased Talib Hussain alias Fateh Sher, therefore, she has been disinherited under Shia Law of inheritance; that animals owned by deceased were gifted by him (Talib Hussain) to defendant No.1 in the year 1995. It was also alleged that proceedings for the arbitration were also pending in the Civil Court, Jhang. A separate written statement was filed by defendant No.4 namely Sardaran Bibi and she prayed for her share having no objection if the suit is decreed. The defendants No.5, 7 and 8 also submitted their separate written statements.
The divergence in pleadings of the parties was summed up into issues on 22.01.1999 and evidence of the parties in pro and contra, oral as well as documentary, was recorded by the learned trial Court. On conclusion of trial, the suit of the deceased plaintiff Mst. Jindwadi was preliminary decreed vide judgment and decree dated 20.02.2016. The legal heirs of Nasira Hussain, being aggrieved preferred an appeal, which was accepted vide impugned judgment and decree dated 29.06.2016 and by setting aside the preliminary decreed dated 20.02.2016 ibid, dismissed suit of the petitioner(s); hence, the instant revision petition challenging the vires and legality of the impugned judgment and decree passed by the learned appellate Court.
2. Heard.
3. With respect to an administration suit no specific provision exists, however, the power to entertain an administration suit is given by section 9 of the Code of Civil Procedure, 1908 to the Civil Court, being a Court of plenary jurisdiction and competence of such suit is recognized in Order XX, Rule 13 of the Code of Civil Procedure, 1908. Both the above provisions of law are reproduced as under:- "9. Courts to try all Civil Suits unless barred. - The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred.
Explanation. - A suit in which the right to property or to an office is contested is a suit of a civil nature, notwithstanding that such right may depend entirely on the decision of questions as to religious rites or ceremonies.
Rule 13 of Order XX reads:- "13. Decree in administration suit. - (1) Where a suit is for an account of any property and for its due administration under the decree of the Court, the Court shall, before passing the final decree, pass a preliminary decree, ordering such accounts and inquiries to be taken and made, and giving such other directions as it thinks fit.
(2) In the administration by the Court of the property of any deceased person, if such property proves to be insufficient for the payment in full of his debts and liabilities, the same rules shall be observed as to the respective rights of secured and unsecured creditors and as to debts and liabilities provable, and as to the valuation of annuities and future and contingent liabilities respectively, as may be in force for the time being, within the local limits of the Court in which the administration suit is pending with respect to the estates of persons adjudged or declared insolvent; and all persons who in any such case would be entitled to be paid out of such property, may come in under the preliminary decree, and make such claims against the same as they may respectively be entitled to by virtue of this Code.
The above observation finds support from judgment of a Division Bench of this Court reported as Mahbub Alam v. Razia Begum and others (PLD 1949 Lahore 263), wherein it was held that:- "-------I have already pointed out that the forms given in Schedule I are not exhaustive, and to that argument I may add that since Order XX, rule 12(1) empowers the Court when passing a preliminary decree, to order such accounts and inquiries to be taken and made and to give "such other directions as it thinks fit", the Court would be at liberty to pass a decree in accordance with the circumstances of each case.
It seems to me, if I may say so with great respect, that it would be incorrect to rely too much on Order XX, rule 12 or the forms of plaints and decrees prescribed in the Frist Schedule of the Code of Civil Procedure for ascertaining the objects of an administration suit. Order XX, it will be noticed bears the title "Judgment and decree" and is devotee to the form in which judgments should be delivered and decree passed in particular cases. The forms, it has already been noticed, are not exhaustive, and rule 13 itself enables the Court to give any directions that it thinks fit.
"Administration" means management and disposal of an estate, whether it be that of a deceased person or of any other person. The power to entertain an administration suit is given not by Order XX, rule 13, but by section 9 of the Code, which provides that the Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature expecting suits of which their cognizance is either expressly or impliedly barred", and if a suit for the administration of an estate is not barred expressly or impliedly by any provision of law, it must be entertained. It would appear that an administration suit need not necessarily relate to the estate of a deceased person. This conclusion may be drawn from the language of sub-rule (1) of rule 13 of Order XX, which speaks of a suit "for an account of any property and for its due administration under the decree of the Court" without any reference to a deceased person, and the force of this language is brought out specifically in sub-rule (2) which makes a special provision for the "administration by the Court of the property of any deceased person".
Having observed above, now moving to the pleadings of the present case, it comes on surface that in the case under discussion both the parties have taken a different stance with regards to Religious School of thought, followed by the deceased Talib Hussain alias Fateh Sher, because the present petitioners claim that deceased Talib Hussain alias Fateh Sher was a Sunni Muslim whereas the defendants claim him to be Asna Ashri Shia; therefore, without deciding the said controversy, which goes to the root of the case, no determinative findings and decree can be passed, because under the administrative suit, the Court assumes the jurisdiction of an administrator, realizes the assets, discharge the debts and legacies, takes an account of the income of the property and distribute the assets amongst those entitled to it. It has been held in Shakeel Aijaz v. Mst. Shakeela Naseem and 8 others (2015 MLD 1360) that:- "The scope of Administrative suit and limitation (s) to grant relief(s) in such like suit in absence of any specific provision of law, make me of the view that it would always be material to examine the relief (s) sought and effect of such relief (s) against the parties (persons). At this stage, it would be conclusive to refer case law reported as PLD 2011 Karachi 281 wherein guideline to gauge the maintainability of the "Administrative suit has been detailed as:-
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 deceased, and a determination 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;
(c) when a determination of the aforesaid question involves a person who is a sharer in the estate then 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.
15. Hence, patently above criteria is in conformity to the fact that determination of maintainability shall be subject to the relief(s) and effect thereof. If the relief(s) sought effects upon a stranger it shall be beyond the scope of Administrative Suit and a separate suit shall be competent. To maintain a suit within capacity of "administrative suit against stranger it is necessary to show that "such stranger is a sharer . Thus, needful to say that although the scope of the "administrative suit was widened even to probe into title(s) but such was made subject to the condition that it would revolve round the "sharer only. This was with an object to avoid multiplicity of the lis but confining the scope to extent of "sharer was sufficient to establish that nature and character of the administrative suit is different from that of an ordinary civil suit (governed by Specific Relief Act). In an "administrative suit the final decree is to follow the result of an inquiry within meaning of Order XX, Rule 13, C.P.C. while in an ordinary suit the determination of rights and status is dependent upon a full fledged `trial .'
4. It is concluded that in 'administrative suit' only the admitted legal heirs of a deceased are to be impleaded and if right of a stranger who is not sharer are involved, the 'administrative suit' is not competent and such rights are to be determined through separate proceedings provided under law.
In judgment reported as Syed Mehdi Hussain Shah v. Mst. Shadoo Bibi and others (PLD 1962 Supreme Court 291), the Apex Court of the country while discussing the scope 'administrative suit' has invariably held that:- `In absence of any specific provision in the procedural law the question as to the matters to be determined and the parties to be impleaded in a suit depends on the relief that is to be granted in that suit. With respect to an administration suit no such specific provision exists though the competence of such a suit is recognized in Order XX of the Civil Procedure Code and in the forms of plaints and decrees contained in Appendices to that Code. In a suit for administration the relief to be granted is that the estate of the deceased is to be administered under the decree of Court.
This means that the Court will assume the functions of an administrator, it will realize the assets, will discharge the debts and legacies, will take an account of the income of the property and will distribute the assets amongst those entitled to it. That this is the relief to be granted appears also from form 41 in Appendix A, Schedule I to the Civil Procedure Code wherein is stated the form of the decree which is to be granted in such suit. It is clear that for distributing the estate of the deceased among those entitled to it the Court has to find out who the persons entitled are and therefore it will be proper to join in the suit all those persons who claim to be so entitled. According to Order I, rule 10, of the Civil Procedure Code any persons whose presence is "necessary in order to enable the Court effectively and completely to adjudicate upon and settle all questions involved in the suit" may be added as a party to the suit.
In the said judgment, it has further been held:- "While an administration suit is not a remedy for getting possession from those who claim the property in their possession in their own 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 deceased and their claim is negative. The question as to whether a person is entitled to a share in the property of the deceased is a fit subject to decision in an administration suit and in fact learned counsel for the appellant does not contend to the contrary, his plea being that 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.
5. While appreciating the ratio of the Mehdi Hussain Shah's case it can safely be held that, as observed above, before passing a determinative decree, rights of the parties are to be determined, especially when different stances as to Religious School of Thought of the deceased Talib Hussain alis Fateh Sher have been taken and in this view question of maintainability of the suit has to be considered and decided at first instance before proceeding further in the case.
6. In addition to the above, the pleadings of the parties have been gone through, the petitioners have also challenged the gift mutation No.2574 dated 05.12.1996 germane to property situated in Fateh Pur Peri, Tehsil Shorkot, District Jhang in favour of deceased Nasira Hussain and subsequent gift mutation No.2577 dated 30.12.1996 by Nasira Hussain (deceased) to defendants No.1 & 2 as well as gift mutation No.1917 dated 05.12.1996 regarding property in Mauza Tibba Gehli in favour Nasira Hussain (deceased) and subsequent mutation No.1920 dated 30.12.1996 in favour of defendants No.1 and 2, which have been controverted by the defendants, however, the learned trial Court did not frame any issue on this point and even no issue has emerged on record that which school of religious thought was followed by deceased Talib Hussain alias Fateh Sher and only following issues were framed:-
1. Whether the plaintiff is entitled to get the decree as prayed for in the plaint? OPP
2. Whether the plaintiff has no cause of action or locus standi to file the suit? OPD
3. Whether the plaintiff is estopped by his words and conduct to bring the instant suit? OPD
4. Whether the suit of the plaintiff is frivolous and vexatious and the defendants are entitled to get special costs under section 35-A? OPD
5. Relief.
The above issues are not according to the pleadings of the parties. It seems that the learned trial Court was not acquainted with the real myth of framing of issues, because the parties have to lead evidence keeping in mind the burden of proof placed upon their shoulders while formulating issues. The issues framed by the learned trial Court do not cover the real controversy, meaning thereby the provisions of Order XIV, Rule 1 of the Code of Civil Procedure, 1908 have been defiled.
Evidence is led after framing of issues. The stage of framing of issues is very important in trial of civil suit because at that stage the real controversy between the parties is summarized in the shape of issues and narrowing down the area of conflict and determination where the parties differ and then parties are required to lead evidence on said issues. The importance of framing correct issues can be seen from the fact that parties are required to prove issues and not pleadings as provided by Order XVIII, Rule 2, CPC. The Court is bound to give decision on each issue framed as required by Order XX, Rule 5, CPC. Therefore, the Courts while framing issues should pay special attention to Order XIV of CPC and give in depth consideration to the pleadings etc. for the simple reason that if proper issues are not framed, then entire further process will be meaningless, which will be wastage of time, energy and would further delay the final decision of the suit. In the present case, as observed supra, the learned Trial Court did not ponder upon the pleadings of the parties while framing issues and could not sum up the real controversy into issues; thus, further proceedings are of no use. In this regard reliance is placed on Muhammad Yousaf and others v.
Haji Murad Muhammad and others (PLD 2003 Supreme Court 184) wherein it has been held:- "The provisions as contained in Order XIV, Rule 5, C.P.C. were not kept in view and ignored completely by the learned trial Court while framing the issues as a result whereof controversy regarding removal of household articles could not be set as naught. There is no cavil to the proposition which was settled decades ago and still hold field "that where an issue, though in terms covering the main question in the cause, does not sufficiently direct the attention of the parties to the main questions of fact, necessary to be decided, and the parties may have been prevented from adducing evidence, or fresh issue may be directed to try the principal question of fact". (Olagappa v. Arbuthnot (1875) 14 BLR 115-142, 14/268, 316. "The duty of raising issues rests under the Code of Civil Procedure on the Court and it would be unsafe to presume from the failure of the Court to raise the necessary issues an attention of the defendant to admit the fact, which the plaintiff was bound to prove." (Ganou v. Shri Devsidhes War, 1902 AIR 26 Bom. 360-361).
Further reliance in this regard is placed on Mst. Rasheeda Bibi & others v. Mukhtar Ahmad & others (PLJ 2010 SC 530), wherein it has been held that:- "It is the duty of the Court to frame issues correctly primarily on pleadings of the parties, because the issues framed by the Court correctly reflect the controversies arising from the pleadings of the parties and the Court thus can render an effective judgment on the disputed facts and the party also know on what fact the evidence should be led.---------, that framing of a particular issue was not pressed by party affected is no ground for condoning failure to frame necessary issue and the mandate of Order XIV, Rule 1 CPC reveals that it is incumbent upon the Court to frame issues in the light of the controversies raised in the pleadings and after examination of the parties, if necessary. Issues of law and facts are to be illustrated clearly, to enable the parties to understand the points at issue to support their respective claims by recording evidence on all material points. It is the settled principle of law that "action or inaction" on the part of the Court cannot prejudice a party to litigation and the failure of Courts below to determine material issue amounted to exercise of jurisdiction illegally or with material irregularity.
The learned appellate Court has totally ignored this aspect of the case and without pondering upon the illegality and material irregularity committed by the learned trial Court, proceeded to pass the impugned judgment and decree.
7. For the foregoing reasons, the impugned judgment and decree dated 29.06.2016 handed down by the learned appellate Court and judgment and decree dated 20.02.2016 passed by the learned trial Court, are set aside and case is remanded to the learned trial Court with a direction to frame issues, keeping in view the above said observations by considering the pleadings of parties, especially with regards to maintainability of the suit, which will be decided at first instance, and thereafter decide the case afresh on merits in accordance with law. The adversaries are directed to appear before the learned District Judge, Jhang on 14.11.2022, who will further entrust the case to the learned trial Court.