1. Facts as stated are that the Cawasji Asphandiar son of Asphendiar Parsi Zorastrian the predecessor-in-interest of parties to litigation being "Author of a Trust" executed an instrument of Trust on 14th October 1953, duly registered with Sub-Registrar of the Bombay (India). By means of said instrument he appointed four trustees to carry out the objects of the Trust. Later he died at Quetta on 8th November 1953. The petitioner was appointed to be sole executor as other trustees nominated in the instrument had denounced their right of probate in the High Court of Judicature of Bombay. In pursuance whereof a judicial order in Petition No, 616/57 was pronounced by the Court on 28th February 1958.
2. The petitioner on having attained the status of sole executor, took over the affairs of the Trust property and discharged his functions accordingly.
3. The respondent on 16th December 1986, moved an application under section 74 of the Trusts Act, 1882, before the District Judge, Quetta, praying that petitioner be removed from Trusteeship and in his place he be appointed as Trustee. The application was transferred to the file of Additional District Judge for disposal. The learned Judge who was seized with the matter ordered to issue process for petitioner on the address furnished by respondent. Admittedly he could not be served on the given address. Consequently a publication was made in the Local Newspaper. The learned trial Judge on 26th June 1987, passed order removing the petitioner from Trusteeshin and appointed the respondent as the new Trustee of property. The operative para. Of the order reads as under:-- "As there is none on behalf of the respondent to repudiate the allegation against him therefore I have no option but to accept the application. The respondent is removed from trusteeship. The applicant is appointed as trustee of the property of the deceased with the directions to act upon according to the mandates given in the will, he will look and administer the property with full care and true Inventory and credits and Exhibit the same in the Court within six months from the date hereof and also renders to this Court a true account thereof."
4. Although the respondent succeeded in obtaining an order behind the back of petitioner but despite of that he did not resist and accepted the same. Later on it occurred to petitioner that newly-appointed Trustee had violated the terms of the order dated 28-6-1987. Therefore to create a vacancy within the meaning of sections 70 and 71 of, the Trusts Act, 1882, an application was filed by him before the Additional District Judge-I, under sections 73 and 74 of Act. On the averments specified therein, with the prayer that to achieve the objects of the Trust, petitioners be substituted with the respondent as Trustee of the Trust property.
5. The respondent contested the application repudiating the claim of petitioner.
6. The learned Additional District Judge-I, Quetta, vide order dated 30th November 1992, rejected the application.
7. Mr. H. Shakeel Ahmed, Advocate argued on behalf of the petitioner that the learned Additional Judge has totally misunderstood the object of filing of application for the removal of the respondent on the grounds specified in the application. And the lower Court gathered the impression that application has been moved for setting aside the previous order dated 27-6-1987, within the parameters of Order 9, Rule 13, C.P.C.
8. On the other hand Mr. Khalid Hamayun the learned Advocate for respondent contended that the petitioner himself is not residing in Quetta, therefore, it would not be in the interest of justice, to appoint him as the Trustee replacing the respondent. He further stated that during the period of incumbency of the petitioner he totally failed to look after the interest of the Trust Property in a proper manner, as such the learned Additional District Judge on having taken into consideration the attending circumstances, directed, for the removal of petitioner from Trusteeship vide order dated 27-6-1987. As much, in the instant proceedings as well the Additional District Judge-I rightly refused to appoint the petitioner as Trustee vide impugned order.
9. I have heard the partiescounsel and with their assistance record so made available has also been perused carefully.
10. It would be worth to note that under section 70 of Trusts Act, 1882, the office of a Trustee would be deemed vacant either on account of his death or by his discharge from the office. Under section 71 of the Trusts Act certain conditions, have been enumerated on the happening of any one of them it would be deemed that the Trustee has been discharged from the Office. It includes a condition by appointment of a new Trustee in the place of the original one. The appointment of a new Trustee to create a vacancy, shall take place under section 73 of the Trusts Act, 1882. According to which when a Trustee disclaims or any Trustee either original or substituted, dies or is for a continuous period of six months absence from Pakistan or leaves Pakistan for the purpose of residing abroad or is declared as insolvent or desire to discharge from the Trust or refuses or becomes in the opinion of a principal Civil Court of original jurisdiction unfit or personally incapable to act in the Trust or accepts an inconsistent Trust, shall be replaced by a new Trustee.
11. Mr. Shakeel Ahmed, Advocate vehemently urged that since respondent admittedly is absent from Pakistan for the last six months and is permanently residing in "Fennayelvania", USA thus has become unfit personally to discharge the duties of a Trustee. Therefore, the application under section 74 of the Trusts Act was submitted for the appointment of the petitioner as new Trustee.
12. A perusal of the application submitted before the lower Court, reveals that same was not drafted properly mentioning the grounds on which it was claimed that petitioner be appointed as a new Trustee, and in an ambiguous terms it was claimed that he be appointed as new Trustee on the grounds that respondent had failed to furnish the account in pursuance of the order previously passed by the Additional District Judge. So much so learned Advocates who appeared for the parties respectively did not render proper assistance to the Court and the matter was argued considering to be an application under Order 9, Rule 13, C.P.C. Probably due to this reason learned lower Court was pursuaded to hold that unless the previous order operating against the petitioner is not set aside, relief cannot be granted to him. It is to be observed that while discharging judicial functions the Courts are supposed to decide the matters strictly in accordance to the pleadings of parties as well as the law available on the subject. As such it was an obligation upon the lower Court to keep in mind that under the Trusts Act, 1882, the order substituting a Trustee in previous proceedings shall not operate as bar for appointing of the new Trustee. The general survey of the Trusts Act, 1882, makes it clear that subject to availability of a vacancy which would fall vacant either, on the death of the Trustee, or on his discharged from the office, an application can be moved. Then it is the function of the Court to determine whether on account of disqualification of original Trustee in the terms of section 73 of the Trusts Act, a new Trustee can be appointed or not.
13. In the instant case the learned Additional District Judge also failed to notice the implications of Order 9, rule 13, C.P.C., which broadly deals in respect of setting aside of an ex parte decree passed under the provisions of Civil Procedure Code whereas order of the Court of appointing a Trustee is concerned that does not amount to passing of a decree. It is also to be borne in mind that under the Trusts Act a summary procedure has to be followed in the appointment of the new Trustee and if Trial Court feels that composite question of fact and law cannot be dealt with unless a regular suit is not instituted after following the procedure as has been contemplated in C.P.C., the Court may terminate the proceedings. So parties may approach the Civil Court.
14. As I am, inclinded to remand the case, therefore the contentions on merits of the case raised by the learned counsel of respondent are left to be determined by the trial Court.
15. Accordingly it is held that the learned lower Court has not exercised the authority of the law in accordance to provisions of the Trusts Act, 1882, and had misguided itself in forming the opinion that without setting aside the order dated 27-6-1987, the application was not competent.
16. In consequences of above discussion impugned order dated 30-11-1992, is hereby set aside case is remanded to the Additional District Judge-I, Quetta, for fresh decision in accordance to law. Parties are left to bear their own costs.
17. This constitute the reasons of my short order dated 5-7-1993.