Pakistan Case LawMUNAWAR HUSSAIN Versus MUHAMMAD ANWAR
This civil revision petition challenges the concurrent judgments of the trial and appellate courts, which declared the respondent as a legal heir of the deceased but denied consequential relief of partition and possession due to the non-joinder of other legal heirs. The core legal question was whether the trial court erred in refusing partition and possession solely on the ground of non-joinder of parties, rather than exercising its power to implead necessary parties to ensure an effective decree. The High Court held that the trial court possessed the authority under the Code of Civil Procedure 1908 to direct the impleadment of necessary parties to facilitate a complete adjudication. Consequently, the court modified the lower courts' decrees, granting the respondent the relief of partition and possession to the extent of his share. The petition was disposed of with the declaration that the respondent is entitled to partition and possession. The court established that a trial court should not deny consequential relief in a partition suit solely due to non-joinder but should instead exercise its powers to implead necessary parties to prevent multiplicity of litigation.
- Can a trial court deny the relief of partition and possession in a suit solely on the ground of non-joinder of other legal heirs?
- Does the High Court have the authority under Section 115 of the Code of Civil Procedure 1908 to grant consequential relief to avoid the remand of a case and prevent multiplicity of litigation?
- Is a trial court empowered to direct the impleadment of necessary parties under Order I Rule 10 of the Code of Civil Procedure 1908 to ensure an effective decree?
MUHAMMAD AAMIR NAWAZ RANA, J.--- The petitioner/defendant No.1 has called in question judgment and decree dated 27.05.2022 passed by the trial Court, whereby the suit filed by the respondent No.1/plaintiff was partly decreed. The petitioner/defendant No.1 has also called-in-question judgment and decree dated 27.05.2023 passed by the Appellate Court, whereby the appeal filed by the petitioner/defendant No.1 was dismissed.
2.Relevant facts for disposal of the instant Civil Revision Petition are; the respondent No.1/plaintiff had filed a suit for declaration, partition, possession, cancellation of mutation entries, mense profit and permanent injunction before the trial Court and had asserted that he is successor-in-interest of late Ghulam Muhammad, who had three sons namely Ghulam Sarwar, Ghulam Nabi and Muhammad Akbar Raisani, whereas the petitioner/defendant No.1 is his brother. The respondent No.1/plaintiff stated in his suit that he was illegally deprived from his lawful Shari share and through illegal mutation entry No.295, the petitioner/defendant No.1 mutated the share in his name. The respondent No.1/plaintiff further stated in his suit that the petitioner/defendant No.1 had illegally expelled him from the joint property i.e. house. With these assertions, respondent No.1/plaintiff had made the following prayer in his suit:
A. Declaring that the plaintiff and defendant No.1 being sons and legal heirs of late Ghulam Sarwar, are equal shareholders in the suit properties to the extent of share of their late father.
B. Directing the defendant No.1 to pay mense profit to the plaintiff in the amount of rents.
C. Directing the defendant No.3 to partition the share of late Ghulam Sarwar between the plaintiff and defendant No.1 as per their sharai shares according to sharai FATWA.
D. Directing the defendant No.1 to handover the share of plaintiff in the suit properties.
E. By way of permanent injunction the defendant No.1 be restrained from alienating, transferring or creating third party interest in the suit properties.
F. Directing the defendant No.3 to cancel the mutation No.295 whereby 320 sq.ft. of suit property was transferred upon the name of defendant No.1 and same be entered in the name of plaintiff and defendant No.1 as cosharers.
G. Any other relief, which this Hon'ble Court deems fit and proper in the circumstances, may also be awarded in favour of plaintiffs.
H. All cost of the suit.
3.The suit was contested by the petitioner/defendant No.1; out of the divergent pleadings of the parties, the trial Court framed the following issues:
1. Whether plaintiff has no locus standi to file instant suit and no cause of action has accrued to plaintiff against the defendants and the suit is not maintainable under Order VII rule 11, C.P.C.?
2. Whether plaintiff and defendant No.1, being legal heirs of late Ghulam Sarwar, are equal shareholders in the suit property?
3. Whether defendant No.1 has failed to pay mense profit to plaintiff in the amount of rent?
4.Whether plaintiff is entitled for the relief claimed for?
5.Relief?
4. After framing of issues, the parties were directed to produce evidence in support of their respective contentions. Record transpires that the respondent No.1/plaintiff produced three (03) witnesses and recorded his own statement, whereas the petitioner/defendant No.1 produced five (05) witnesses and recorded his own statement.
5. On conclusion of the trial and after hearing learned counsel for the parties, the trial Court, vide impugned judgment and decree dated 27.05.2022, partly decreed the suit in favour of respondent No.1/plaintiff in the following terms:
"the suit is partly decreed and it is declared that the plaintiff Muhammad Anwar is son and the legal heir of the late Ghulam Sarwar and co-inheritors in the suit property consisting of eleven (11) shops and one house situated in Ward No. 5 Arbab Ghulam Ali Road, Tehsil City District Quetta, near Central High School Quetta. No order as to cost."
6.The appeal filed by the petitioner/defendant No.1 remained unsuccessful, as the Appellate Court, vide impugned judgment and decree dated 27.05.2023 dismissed the appeal; both the above-referred judgments and decrees passed by the fora below have been impugned by the petitioner/defendant No.1 in this Civil Revision Petition.
7.Learned counsel for the petitioner/defendant No.1, at the very outset, contended that the judgment and decree passed by the trial Court, which was upheld by the Appellate Court, is not sustainable under the law. Per learned counsel, the fora below committed non-reading and mis-reading of evidence produced by the parties. Per learned counsel, the judgment and decree passed by the trial Court cannot be implemented as the trial Court has just declared the respondent No.1/plaintiff as the legal heir of late Ghulam Sarwar, whereas the remaining reliefs of partition and possession have been denied. Per learned counsel, since the said judgment and decree has not been assailed by the respondent No.1/plaintiff before Appellate forum, therefore, to that extent, the matter has attained finality. Per learned counsel, merely on the basis of simple declaration, without consequential relief, the respondent No.1/plaintiff cannot claim any right over the suit property.
8.Learned counsel for respondent No.1/plaintiff, while controverting the contentions of learned counsel for the petitioner/defendant No.1, contented that the trial Court has declared the respondent No.1/plaintiff as the legal heir of late Ghulam Sarwar. Per learned counsel, though consequential relief was denied, but since the reasoning given by the trial Court was not in accordance with law, therefore, this Court, in its revisional jurisdiction, can pass the appropriate orders.
9.I have heard learned counsel for the parties and have perused the record with their able assistance. The petitioner/defendant No.1 had denied in his written statement that the respondent No.1/plaintiff is in fact legal heir of late Ghulam Sarwar, rather the petitioner/defendant No.1 took plea that late Ghulam Sarwar had in fact adopted the respondent No.1/plaintiff as well as one daughter namely Suriya, therefore, the respondent No.1/plaintiff cannot claim any legal/Shari right in the legacy left by late Ghulam Sarwar. The trial Court and Appellate Court have thoroughly examined this issue and have concurrently decided in favour of the respondent No.1/plaintiff that he is the son of late Ghulam Sarwar and that the plea taken by the petitioner/defendant No.1 in this context has no substance owing to the fact that certain other mutation entries, particularly, mutation entry No.231 (Exp/3-A) is in the name of respondent No.1/plaintiff as well as in the name of legal heirs of late Ghulam Sarwar. It is an admitted feature of the case that the said mutation entry was never assailed by the petitioner/defendant No.1 before any forum, therefore, the fora below have rightly decided that the respondent No.1/plaintiff is in fact the legal heir of late Ghulam Sarwar.
10.Reverting to the second argument of learned counsel for petitioner/defendant No.1 that since consequential relief of partition and possession was not granted by the trial Court to the respondent No.1/plaintiff, therefore, the respondent No.1/plaintiff cannot claim any right over the suit property on the basis of impugned judgments and decrees. It reveals that though, in his suit, the respondent No.1/plaintiff had prayed for declaration, partition, possession and permanent injunction but the trial Court declined the relief of partition and possession. For the facility of reference, the relevant excerpt of the impugned judgment and decree, passed by the trial Court (upheld by the Appellate Court) is reproduced:
26. In this case, the plaintiff has sought relief of declaration of his status as legal heir of the late Ghulam Sarwar as well as right as to the suit property; recovery of mense profit and partition of the suit property. Admittedly, the suit property belonged to the Ghulam Sarwar as well as his brother namely Ghulam Nabi, as asserted by the plaintiff in the paragraph 3 of the plaint and conceded by the defendant 1 in the paragraph 3 of the written statement. Neither all the legal heirs of the late Ghulam Sarwar nor his brother (co-owner) Ghulam Nabi have been impleaded in this suit, which suffers from non-joinder of the parties to some extent. However, it is settled position of law that no suit shall fail by reason of misjoinder and Court may in every suit deal with the matter in controversy so far as the rights and interest of the parties actually before it. Reference may be made to the case of Syed Ain Ullah v. Dilber and others, reported in 2013 MLD 708 Baluchistan and case titled as Muhammad Younas Sheikh v. Corex Enterprises and another, reported in 2007 MLD 508 Karachi). Therefore, apart from the relief of declaration of the status of the plaintiff being legal heir of the late Ghulam Sarwar and his right as to the property left by him in his legacy; the effective decree cannot be passed determining rights of the parties or making an order of partition, in absence of all shareholders namely the legal heirs of the late Ghulam Sarwar as well as the late Ghulam Nabi; therefore, the plaintiff appears to be entitled for the relief of declaration of his status and right as to the suit property. It is, however, clarified that this judgment will not operate as res judicata in case suit parties file suit for partition and rendition of account in respect of the suit property. Consequently, the suit is partly decreed and it is declared that the plaintiff Muhammad Anwar is son and the legal heir of the late Ghulam Sarwar and co-inheritors in the suit property consisting of eleven (11) shops and one house situated in Ward No. 5 Arbab Ghulam Ali Road, Tehsil City District Quetta, near Central High School Quetta. Decree sheet by drawn accordingly .
11.The trial Court declined the relief of partition and possession to the respondent No.1/plaintiff on the sole ground that since there were other legal heirs of late Ghulam Sarwar who were not party in the suit, therefore, the effective decree cannot be passed determining rights of the parties or making an order of partition. The trial Court has committed error while refusing relief of partition and possession to the respondent No.1/plaintiff on the sole ground of non-joinder of the parties. The trial Court had jurisdiction under Order I Rule 10, C.P.C. to direct for impleadment of the necessary parties for the purpose of passing an effective decree. Since the respondent No.1/plaintiff had established through solid documentary evidence his ownership in the suit property being legal heir of late Ghulam Sarwar, therefore, the respondent No.1/plaintiff was entitled for the relief of partition and possession.
12.Now here the question arises that whether just for the sake of impleadment, the matter can be remanded to the trial Court which would definitely result into prolong exercise and multiplicity of litigation, or while exercising jurisdiction under section 115, C.P.C. necessary relief be granted? Section 115, C.P.C. confers an exceptional and necessary power intended to secure effective exercise of the High Courts superintending and visitorial powers of correction, unhindered by technicalities. The High Court can interfere in such a scenario to curb multiplicity of proceedings and unnecessary delay. Considering all the attending circumstances of the case, the trial Court should have passed the decree in favour of the respondent No.1/plaintiff to the extent of consequential relief of partition and possession as well being the legal heir of late Ghulam Sarwar.
For the foregoing reasons, the impugned judgments and decrees passed by the trial Court and Appellate Court are modified and it is declared that the respondent No.1/plaintiff is also entitled for the relief of partition and possession of the suit property to the extent of his share being the legal heir of late Ghulam Sarwar.
The petition stands disposed of in the above terms. Office is directed to prepare decree sheet accordingly.
JK/5/Bal. Order accordingly.
Judges on this bench
- Muhammad Aamir Nawaz Rana106 judgments