MUHAMMAD SAJID MEHMOOD SETHI, J. This consolidated judgment shall dispose of instant writ petition along with following connected petition as common questions of law and facts are involved in these cases:- W.P. No.68837 of 2023 titled Rais Wazir Ahmed v. Women Ombudsperson Punjab, Lahore and others
2. Through these petitions, petitioners have assailed vires of decision dated 23.08.2023, passed by respondent No.1/Ombudsperson Punjab, whereby complaints under Section 4 of the Punjab Enforcement of Women's Property Rights Act, 2021 ("the Act of 2021"), filed by respondent No.3 and respondents Nos.4 to 6 were allowed.
3. Brief facts of the case are that late Rais Shabbir Ahmad was predecessor-in-interest of petitioners, respondents Nos.3, 7 & 8, whereas respondent No.4 is widow and respondents Nos.5 & 6 are daughters of Rais Alamgir Ahmad, pre-deceased son of said late Rais Shabbir Ahmad. Said Rais Shabbir Ahmad passed away on 02.04.2021 leaving behind several movable and immovable assets at Karachi, Rahim Yar Khan and Islamabad. Respondent No.3 (daughter) filed suit for administration, partition, income, mesne profits and permanent injunction before the High Court of Sindh at Karachi for properties situated at Karachi, Rahim Yar Khan and Islamabad, wherein an injunctive order was passed on 26.01.2022. Later on, respondent No.3 initiated proceedings before respondent No.1/Ombudsperson Punjab claiming only those properties falling in Mauza Sher Muhammad, Tehsil Sadiqabad. Respondents Nos.4 to 6 also filed a complaint before respondent No.1 claiming all the properties as inherited properties, which were mentioned in aforesaid suit, which was sine die adjourned vide order dated 01.09.2022 with the observation that The disputed property is yet to be partitioned and inheritance mutation is also to be sanctioned in favour of all legal heirs. Therefore, counsel for the complainant is suggested to get the inheritance mutation sanctioned in favour of the complainant and then approach this forum. Adjourned. Whereas one Nargis Fasih also filed a complaint before respondent No.1 against respondent No.3 and also filed civil suit at Tehsil Sadiqabad, Rahim Vat Khan and obtained status quo order. Likewise, respondent No.8, mother of petitioners and respondents Nos.3 and 7, also filed civil suit at Sadiqabad and obtained injunctive order as well qua the properties in question. Meanwhile, preliminary decree was passed in civil suit filed by respondent No.3 before Sindh High Court, which was assailed by the present petitioner through appeal before Division Bench, whereof the order of learned Single Judge was modified. Feeling discontent, petitioner as well as respondent No.8 assailed said order before the Supreme Court by way of filing civil petition, which was allowed with direction to Trial Court to determine the fact as to whether or not respondent No.4/widow of Rais Alamgir would inherit anything in the estate of late Rais Shabbir Ahmad or not, determine the shares of all the legal heirs and decide the matter pertaining to partition of properties in joint khata. In this backdrop, respondent No.1 allowed the complaints filed by respondents No.3 and respondents No.4 to 6, vide consolidated order dated 23.08.2023, while dismissing the complaint of said Nargis Fasih with direction to respondent No.2 to implement the order and submit compliance report. Hence, these petitions.
4. Learned counsel for petitioner submits that suit filed by respondent No.3 was pending before Sindh High Court prior to filing of complaint under Section 7 of the Act of 2021, out of which this petition is arising, hence, without request for termination of the proceedings before Sindh High Court the cognizance of the matter could not have been taken by learned Ombudsperson. He adds that even shares of the legal heirs of late Rais Shabbir Ahmad have yet not been determined as per direction of the Supreme Court vide order dated 04.05.2023, passed in Civil Petition No.410 of 2023, therefore impugned proceedings/decision, being in conflict with the applicable law as well as direction of the Supreme Court, are unsustainable. In support, he relied upon Ali Ahmad and 4 others v. Ombudsperson (Mohtasib) Punjab and 6 others (PLD 2023 Lahore 711).
5. On the other hand, learned counsel for respondents Nos.3 to 6 defends the impugned decision by contending that complaints filed by respondent No.3 and respondents Nos.4 to 6 were initiated before institution of any of the suits and Section 4 will be read with Section 11 of the Act of 2021. She argues that the suits of respondent No.8 (widow of late Rais Shabbir Ahmad) and Nargis Fasih were filed after institution of the complaints. She maintains that the suit pending before the Sindh High Court does not affect the impugned order for the reason that the properties in the suit before Sindh High Court and those before the Ombudsperson are altogether different. She further argues that the properties before the Supreme Court are not the subject matter of the impugned order, which is only dealing with the properties already in the name of respondents Nos.3 to 6, whereas the properties before Supreme Court deal with the inheritance of properties of late Rais Shabbir Ahmad, She adds that respondent No.8 has neither challenged the impugned order nor has she appeared before this Court as respondent. In support, she has referred to Mohsin Ali Khan v.
Federal Ombudsman Secretariat for Protection against Harassment of Women at the Workplace, Islamabad and another (2022 CLC 1955).
6. Arguments heard. Available record perused.
7. Record shows that the complaints were filed by Respondents Nos. 4 to 6 on 27.12.2021 and respondent No.3 on 29.03.2022. Both the complaints were filed before the institution of the suit by respondent No.8 (widow) on 15.06.2022 and Nargis Fasih on 26.10.2022. As regards the properties mentioned in the suit before Sindh High Court, the properties before the Ombudsperson were different. The suit before the Sindh High Court relates to partition and inheritance of properties of Rais Shabbir Ahmed Khan whereas the properties under the jurisdiction of the Ombudsperson in Punjab are properties already in the names of Respondents Nos. 3, 4. 5 & 6 as reflected in the report of the Revenue Officer. The same is reflected in the Record of Rights which shows the said respondents as exclusive owners of the proprieties.
The properties mentioned in impugned order are as under: i. Respondent No.3 property situated in Khewat No.6, Khatooni Nos. 13 to 16 - 777 Kanals and 4 Marlas, Muaza Shabbir Ahmed Abad, Tehsil Sadiqabad Khewat Nos.26, Khatooni No. 166 - 197 Kanals and 19 Marlas, Muaza Shabbir Ahmed Abad, Tehsil Sadiqabad Khewat No.12, Khatooni Nos.
28 to 31 - 120 Kanals, Muaza Shabbir Ahmed Abad, Tehsil Sadiqabad Khewat No. 11-3-2/11/3, Khatooni Nos: 4710 - 375 Kanals and 16 Marlas and 136 square feet, Muaza Sher Muhammad Tehsil Sadiq Abad ii. Respondent No.4- Khewat No.5 Khatoni Nos. 102- 97 Kanals and 11 Marlas, Shabbir Ahmed Abad, Tehsil Sadiqabad M. Respondent No.5 - Khewat No.5 Khatoni Nos. 102 269 Kanals and 2 Marlas, Shabbir Ahmed Abad, Tehsil Sadiqabad iv. Respondent No.6 - Khewat No.5 Khatoni Nos. 102- 269 Kanals and 2 Marlas, Shabbir Ahmed Abad, Tehsil Sadiqabad.
Likewise, the properties mentioned in the suit before Sindh High Court are as under:- i. House No.39-A, 11th South Street, Phase 2, DHA, Karachi measuring 2000 Sq. Ft. ii. Agricultural Property - 29 Acres (Tamleaked) Muaza Bhong Sadiqabad, Rahim Yar Khan. iii. Agricultural Property - 19 Acres (Tamleaked) Chak No.4/NP, Sanjarpur, Rahim Yar Khan, Sadiqabad. iv. Agricultural Property - 21 Acres (Tamleeked) Muaza Shabir Ahmedabad; Sadiqabad, Rahim Yar Khan Sadiqabad. v. Agricultural Property - 67 Acres (Tamleeked) Muaza Faiz Mani Abad, Sadiqabad, Rahim Yar Khan Sadiqabad. vi. Agricultural Property - 150 Acres (Tamleeked) Muaza Noorpur, Sadiqabad, Rahim Yar Khan, Sadiqabad; vii. Flat No.D-15,. Block-5, Kuldana Road Murree, Islamabad, Islamabad Urban. viii. Apartment No.6-D, Bhorbon Murree, Islamabad, Islamabad Rural. ix. House No.219, Street 21, Sector E17, Islamabad, Islamabad Urban measuring 800 Sq. Ft. x. 4/27 share in house (160 Marla) Zimindara Colony, Rahim Yar Khan.
It is clear from the above that the properties before the Sindh High Court and Ombudsperson, Punjab were different, therefore, Section 4 of the Act of 2021 will continue to apply. The complaint filed by Nargis Fasih was dismissed as the matter involved allegations of fraud and forgery, requiring recording of evidence which was beyond the domain of Ombudsperson, Punjab. The properties, subject matter of complaints of respondents Nos. 3 to 6, are situated within territorial jurisdiction of the Province of Punjab, thus, Ombudsperson, Punjab has rightly exercised the jurisdiction. It is also a matter of record that petitioners did not opt to submit their written reply to the complaints filed before Ombudsperson, Punjab despite having availed sufficient opportunities, however, despite this fact, respondent No. 1 sought for the report of Deputy Commissioner in the light of guidelines contained in the Act of 2021 in order to bring clarity, however, petitioners once again abstained from raising any objection upon the report of Deputy Commissioner, for which they have no plausible explanation and also did not bother to appear in response to notice issued by this Court. The stance of petitioners is that the Ombudsperson could not decide the matter under Section 4 of the Act of 2021 as suit filed by respondent No.8 was pending. Suffice it to say that respondent No.8 neither filed any appeal against the impugned decision nor raised any issue.
8. Needless to say that the procedure to deal with the complaint is provided under Section 4 of the Act of 2021, whereby the Ombudsperson on its own motion or on a complaint can initiate action in relation to the ownership or possession of a woman's property provided no proceedings are pending in a Court of law in respect of that property. The Ombudsperson shall make a preliminary assessm ent of the complaint and if it comes to the conclusion to further probe or investigation is required, the matter be referred to Deputy Commissioner concerned who after calling the record and issuing notice to the complainant or adversaries, shall conduct a summary inquiry and submit a report to the Ombudsperson, whereafter the Ombudsperson shall proceed with the matter and pass the order after conclusion of proceedings (Section 5). However, in depth inquiry, investigation, detailed recording of evidence or intricate adjudication is out of the domain of Ombudsperson and matter is required to be referred to Civil Court (Section 6). Section 7 provides concurrent jurisdiction to the Ombudsperson where proceedings in a Court of law are pending in relation to ownership or possession of any property claimed to be owned by a woman. Section 11 further extends the jurisdiction to the Ombudsperson by restricting the jurisdiction of Court or other authority to question the validity of any action taken, order made, or anything purported to have been done under the Act of 2021. Section 4 provides a different regime than Section 7 where a suit is pending.
The term 'pending' means that the proceedings have already been initiated/commenced prior to the filing of complaint under Section 4 of the Act. Once Section 4 is triggered, the bar under Section 11 becomes effective. Reference is made to Fajar Ali and others v. Mst Jamila and others (PLD 1969 Lahore 545), wherein it has been held that pending, means 'any action, in law, considered pending from time of its commencement.' In the instant case, regarding the properties which were subject matter of the complaint, no proceedings before any Court of law were pending, therefore, the Ombudsperson accurately exercised jurisdiction.
9. Learned counsel for petitioners has failed to point out any illegality or legal infirmity in the impugned decision, thus, no interference is warranted. The case law relied upon by learned counsel for petitioners, being distinguishable, is not applicable to the present case.
10. For what has been discussed above, these petitions, being devoid of any merits, are hereby dismissed with no order as to costs.