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Petitioner: MOINUDDIN PARACHA and 6 others VS Respondent: SIRAJUDDIN PARACHA and 23 others
Court Name: Sindh High Court Judge(s): Muhammad Hussain Adil Khatri Title: MOINUDDIN PARACHA and 6 others vs SIRAJUDDIN PARACHA and 23 others Case No.: Suit No, 132 of 1992 Date of Judgment:1993-04-18 Reported As: 1993 CLC 1606 Result: Order accordingly
Judgment ORDER ' This order will dispose of CMA No,681/92, filed by the plaintiffs for appointment of receiver for the suit property and CMA No,1939/92, filed by defendants Nos,1 to 8 and 10 to 12 under Order VII, Rule 11, C.P.C. For rejection of the plaint (hereinafter referred to as the said defendants). 2. The dispute in the suit pertains to property, bearing No,2-11-B, Nazimabad No,2, commonly known as Azecm Market, Karachi (hereinafter referred to as the "suit property"). 3. Briefly the case as reflected in the plaint is that late Mahboob Bux, who died on 26-3-1965, owned 50% share in the suit property which devolved on plaintiff No,1, defendants Nos,1 and 15 and Aziz Bux as his sons, defendants Nos,14, 16 and 17, daughters, Mst. Zainab Khanum, widow and Mst. Quraishunnisa, mother. The remaining 50% share was owned by one Muhammad Naeem which was purchased by plaintiff No,1 and defendant No,1 on 30-10-1969 in equal shares. Aziz Bux died on 16-9-1975, leaving behind Mst.Zainab Khanam, the mother, defendant No,18, widow, defendant No,19, son and defendants Nos,20 to 24, daughteRs, ' The share inherited by Mst. Quraishunnisa was purchased by Mst. Zainab Khanam, who gifted her entire share in the suit property to plaintiff No,6 on 1-7-1990. ' It is the case of the plaintiffs that the property was jointly managed and accounts were being jointly operated by, the parties to the suit through their representatives, plaintiffs Nos,1 and 2 on the one and defendants Nos,1 and 2 on the other hand. Defendants Nos,1 and 2, attempted to oust plaintiffs Nos,1 and 2 from the management of the suit property. The plaintiffs Nos,1 and 2, therefore, filed Suit No,373/1985 in this Court for declaration and permanent injunction. In the said suit by order 'dated 5-6-1985, the aforesaid defendants were restrained from receiving any rent or changing the tenancy of the shops situated in the suit property without the consent and approval
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of plaintiffs Nos,1 and 2. In spite of the said order defendnats Nos,1 and 2 in collusion with defendants Nos,5 and 6 started recovering rent from the tenants in the name of latter two defendants who are daughters of defendants Nos,1 and 3. ' It the case of the plaintiffs that they are entitled to the rendition of accounts from November, 1984 and so also for partition of the property by metes and bounds. Accordingly the suit has been filed for the said purposes. ' Alongwith the suit, as stated above, the plaintiffs have filed an application for appointment of Receiver and defendant No,1 for himself and on behalf of the said defendants has filed counter- affidavit in which he has not denied that 50 paisa share in the suit property was owned by late Mahboob Bux which devolved on his successors, as stated in the Plaint. He has, however, taken the stand that the remaining 50 paisa share owned by Muhammad Naeem was purchased by him alone for himself and on behalf of his family members, namely, his wife, sons and daughteRs, ' It is then stated by him that out of the 50 paisa share, the share of 25 paisas was purchased by him for himself and his family members in the name of plaintiff No,1, who is benamidar and the said defendants are the real owneRs, According to him the entire sale consideration was paid by him and no consideration was paid by plaintiff No,1 towards the purchase of the said 25 paisas share. According to the said defendants, plaintiff No,1 under the directions and instructions of defendant No,1 made benami gift of 20 paisas share out of the said 25 paisas in favour of his wife Mst. Anisa Begum, plaintiff No,2 herein. Under further instructions of defendant No,1, plaintiff No,2 made benami gift out of 20 paisas standing in her name to plaintiffs Nos3 to 7. Thus it is the case of the said defendants that the plaintiffs are not the real owneRs, It is stated that the physical possession of the property has always remained with defendant No,1 and was not delivered to the donees as they were only benamidar. The gifts, according to him, therefore, are not valid. He claims that the original sale-deed was initiatlly in his possession and was later on deposited by him in United Bank Ltd. He has made reference to the gift made by defendant No,15 Muhammad Sualeheen Paracha of the share inherited by him from late Mahboob Bux to Master Nooruddin Paracha, defendant No,10, through his mother Mst. Yasmin Begum, who took over the actual physical possession of the said share. As stated in the counter-affidavit, the plaintiffs owned only 6.44 paisa share which was inherited by plaintiff No,1 from late Mahboob Bux. Denying the gift made by Mst. Zainab Khanam in favour of plaintiff No,6 on 1-7-1990, it is stated that the share of Mst. Quraishunnisa inherited by her from her son Mahboob Bux was purchased by defendant No,1 in the name of Mst. Zainab Khanam and entire sale consideration was paid by him and thus his mother Mst. Zainab Khanam is also a benamidar for him and on his behalf. It is further claimed that the shares inherited by Mst. Zainab Khanam from her husband and son late Aziz Bux were gifted by her to defendant No,1 on 1-7-1991. It is stated that the actual and physical possession of the said share gifted to him was handed over to him by Mst. Zainab Khanam and he had taken over the possession. Similarly, Mst. Zainab Khanam had gifted to him her shares in all other properties. He has denied that the property was being managed jointly as disclosed by the plaintiffs. It is the case of defendant No,1 that the accounts were not being jointly operated but he was operating the accounts. He has denied the rights and interests claimed by the plaintiffs in the suit property except the share inherited by plaintiff No,1. Plaintiffs Nos,1 to 7, as stated above, are described by defendant No,1 only as benamidars whereas he claims himself to be the real owner of the property. According to the said defendants, the plaintiffs are not entitled to partition of the property as only meagre share of 6.44 paisas is owned by them. ' The plaintiffs in reply to the counter-affidavit filed affidavit-inrejoinder in which they denied the allegations made in the counter-affidavit and reiterated the case as set up in the plaint. Alongwith the aforesaid affidavit in rejoinder they filed a bunch of documents and, therefore, the said defendants were allowed to file their further affidavit-in-Mply to the affidavitin-rejoinder, which has
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been done. Plaintiff No,1 has filed his further counter-affidavit in reply to the further affidavit of defendant No,1. ' In so far as application under Order VII, Rule 11, C.P.C. Is concerned, the plaintiffs have filed their counter-affidavit through plaintiff No,1 which is followed by affidavit-in-rejoinder filed on behalf of the said defendants. Defendant No,15 has filed his counter-affidavit in reply to the application for appointment of Receiver in which he has supported such appointment. The remaining defendants have not come forward to oppose the appointment of Receiver. ' CMA No, 1939/1992:--It would be appropriate to first dispose of the above application. ' As arleady stated the above application has been filed by the said defendants for rejection of the plaint under Order VII, Rule 11, C.P.C.. ' The learned Advocate for the said defendants contended that the suit is bad for misjoinder of plaintiffs as well as defendants and that such joinder of the parties is bound to embarrass the trial of the suit. The above submissions are based on Order I, Rules 2 and 3 of the Code of Civil Procedure (hereinafter to be referred to as the "Code"). ' It was submitted that the plaintiffs have acquired specific shares in different modes, that is by purchase, inheritance and gift and therefore the respective plaintiffs can sue for reliefs regarding their respective shares acquired in different modes, independently by separate suits, each acquisition being separate and independent transaction and therefore, they cannot sue jointly as plaintiffs as the relief on the basis of each acquisition is to be sought separately and so also all the defendants cannot be sued jointly. ' It is further contended that the right to sue has not arisen to the plaintiffs against the defendants jointly in respect of the same act or transaction or series of acts or transactions and as also different questions of law and fact would require to be investigated with regard to each of the acquisitions and enforceability of each of such rights against the defendants would be based on different considerations. ' The learned counsel has relied on the following authorities in support of his above contentions:-- (i) Anukul Chandran Chakrawarti v. Province of Bengal and others (AIR 1947 Cal. 374). ' In the above-reported case a suit was filed against 155 defendants. Against some of the defendants declaration was sought and against others the suit was for possession. The defendants, who were termed as trespassers, were independently in possession of separate portions of land. It was found that the defendants could be divided into three separate groups by virtue of the nature of case against each of the groups. The Court put the plaintiffs to election as to against which one of the three groups, they would proceed in the suit. ' Under the abvoe circumstances it has been observed that where different portions of an estate are in possession of different persons, interest of each of whom is opposed to that of the others, the person interested in the estate cannot ordinarily join all such parsons in possession in one suit unless they are in possession by virture of the same transaction or the same series of transactions. ' It is then observed:-- "It is now will-settled that having regard to the provisions of Order I,rule 2 when common questions of law and fact are involved a suit impleading several defendants will not be multifarious only because the plaintiffs causes of action against the several defendants, he has joined, are different." (ii) In Kanhaiyalal v. Keshodas (AIR 1961 Madhya Pradesh 46) it is observed that the following two conditions must be satisfied before two or more defendants can be joined in the same suit. (a) A right to relief against them arises in respect of the same act of transaction or series of acts or transactions and (b) if separate suits were instituted against the defendants any common question of law or fact would arise. ' Both these conditions must exist together. There must be some nexus or common link. This condition is not fulfilled if the case against each defendant is entirely distinct and separate, in its
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subject-matter from that of the other defendants. ' The aforesaid requisite conditions for joining the two defendants in one suit were not found to exist in the facts of the reported case. The plaintiff in the suit had purchased the suit house in which two defendants were residing as tenants in separate portions and the suit for eviction was filed against both the defendants claiming different reliefs againt each of them, i,e, in repsect of different portions held by them independently, at different rates of rent. It was found by the Court that the causes of action against both the defendants were quite different as each of the defendants was in possession of separate portion and, therefore, it was held that the case against each of the defendants was entirely distinct and separate in its subject-matter. (iii) Kamal Kant Gopalgi v. Madhavji (AIR 1935 Bombay 345). In the said case reliefs for recovery of money due under promissory note and money due on account of debt, were sought jointly. The distinction was drawn between a suit on the promissory note and a suit on the debt. It was held that the aforesaid two claims cannot be joined together because a suit on a promissory note is necessarily to be filed against the executing party only and the coparceners cannot be joined in the suit although the debt might be binding on the estate. It was observed that if the debt and the promissory note are simultaneous and constitute one transaction then there will be no separate cause of action in respect of the debt. The rule laid down in the above authority is hot in any manner relevant to the case in hand. ' The facts of this case, seen in juxtaposition of the above case-law, I do not find any substance in the submissions of the learned counsel for the said defendants. In this case neither the defendants are in possession of different portions of the property in suit, nor the suit against each defendant is entirely distinct and separate, in its subject-matter from the other defendants. Although the plaintiffs and so also the defendants have acquired their specific shares in the property in dispute by different modes, such rights have been acquired by them in respect of one and the same subject-matter. The parties are joint co-owners of the property in the suit which is one and single entity. Each one of them has share in each millimeter. It is immaterial that they have acquired undivided shares in different modes-inheritance, gift and purchase. It would have been different, if each or some of the plaintiffs, instead of acquiring joint shares had acquired separate shares in respect of specific divided and separate portions in the property. ' By the present suit the plaintiffs seek partition of the property so that their entire share is separated from that of the defendants by metes and bounds. Such relief will not be feasible if sought by a particular plaintiff on the basis of acquisition of a particular share in a particular mode, as this will lead to multiplicity of litigation. Since the property is jointly owned by the parties, the suit could not have been filed choosing particular defendant or defendants on the basis of the mode of acquisition of the shares therein. If one were to put all the plaintiffs or some or one of them to election or election of some or one of the defendants, it woud create only ridiculous situation. ' The underlying object of the provisions as contained under Order I, Rules 2 and 3 is to avoid multifariousness. Looking at the present dispute in the light of the rule laid down in the authorities relied upon by the learned Advocate for the defendants, it cannot be said that common questions of law or facts have not arisen inter se the plaintiffs and the defendants. It also cannot be said that no nexus or common link exists in respect of the shares acquired in different modes by the plaintiffs, individually or collectively. On the contrary in my humbly assessment of the dispute the plaintiffs had to be joined together for seeking their relief and so also join the defendants together for the said purpose. All the plaintiffs and so also all the defendants are co-owners of the property and as such all of them are necessary parties. If any of them is dropped, the suit will be rendered bad for non-joinder of necessary party. ' No doubt, that the Court has to assess and determine the legality of each of the acquisitions pleaded by the plaintiffs and possibility cannot be ruled out that each of the defendants may raise
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different pleas with regard to separate acquisition by the plaintiffs but merely for such reason, the suit cannot be said to be multifarious. The argument raised by the learned counsel for the defendants overlooks the provisions of Order I, Rule 4 which specifically provides that judgment may be given, without any amendment, for such one or more of the plaintiffs as may be found to be entitled to relief, for such relief as he or they may be entitled to against such one or more of the defendants as may be found liable according to their respective liabilities. ' Again Order I, Rule 5 specifically provides that it shall not be necessary that every defendant shall be interested as to all the reliefs claimed in the suit against him. Similarly Order I, Rule 6 provides that where plaintiff is in doubt as to the defendant from whom he is entitled to obtain redress, he may join two more defendants and the question as to which of the defendants is liable and to what extent, may be determined as between all parties. ' As already observed above, all the plaintiffs and defendants are proper and necessary parties for final adjudication of the dispute raised, as all of them jointly own the property in dispute and the redress by way of partition cannot be granted in absence of any plaintiff or defendant arrayed in the suit. ' It was next contended that the suit is barred under Order II, Rule 2, C.P.C. It was argued that earlier plaintiffs Nos,1 and 2 had filed Suit No,373/1985 in respect of the same property wherein the relief with regard to partition was not claimed and the plaintiffs having relinquished the relief with regard to partition, the claim was barred under the said provisions. It was submitted that the cause of action in both the suits is the same, that is the alleged exclusion of the plaintiffs from the management of the property. ' The above submission is without any substance and deserves to be overruled for the reason that the previous suit is not between the same parties. The previous suit was filed by plaintiffs Nos,1 and 2 herein, against defendants Nos,1 and 2 alone. Plaintiffs Nos,3 to 6 and so also defendants Nos,3 to 23 are not parties in the said suit. ' It is established law that no decree can be granted for partition of property unless all the joint owners are party in the suit. Therefore, in the earlier suit, the Court would not be competent to partition the suit property in absence of plaintiffs Nos,3 to 6 and defendants Nos,3 to 23. ' It was pointed out at the Bar that apart from the suit property the parties are also owners of other properties which are subject-matter of Suit No,373/1985. All the owners of the properties have been ordered to be joined as parties in the said suit and the plaintiffs Nos,1 and 2 herein, who have filed the above suit, have been directed to file amended memo. Of plaint. Be that as it may, in so far as the present suit is concerned, it cannot be said to have been rendered as incompetent because of the above fact. At the most it would be for the parties to request for joint trial of both the suits if they think it proper. ' It may further be pointed out that plaintiff No,6 acquired share in the property by way of gift on 1- 7-1990. The suit for partition can be instituted by any co-owner at any time so long as his right in the property subsists, even in E absence of any wrongful act on the part of the defendant. Therefore, the bar under Order II, rule 2 of the Code is not attracted in the facts and circumstances of this case. ' In Rama Swami Mudalia and others v. Allagathi Ali (AIR 1929 Mad. 96), it was held that Order II, Rule 2 would have no application where the parties to the suits are not the same. Reference may also be made to Muhammad Azam v. Pakistan Employees' Cooperative Housing Society,Karachi and 4 others (PLD 1985 Kar. 481) and M.K. Abbasi v. United Bank Limited (1983 CLC 482). ' It was lastly contended that the suit, in so far as it pertains to accounts, is barred under Articles 88, 89 and 106 of the Limitation Act. The first Article relates to a suit against factor for an account, the 'second one by principal against his agent and the last one to suit for an account and the share of the profits of a dissolved partnership. None of the said Articles is attracted to the present case. The
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learned counsel for the plaintiffs submitted that the Article applicable under the circumstances is residuary Article 120 which provides limitation of six years when the right to sue accrues. In the present suit according to the plaint the right to sue accrued in the year 1984 and the accounts have been claimed from the year 1984. It may be observed that the defendants are liable to account for the rents and other amounts received by them from day to day and since the case of the plaintiffs is that the defendants are continuously realising the rent amount, the suit cannot be said to be barred by time in respect of all the sums that have been realised by the defendants continuously from 1984 till today. This submission can be considered properly only at the time of final disposal of the suit. The present suit is also for partition of property. It is settled law that in suits for partition, administration or of the like nature which do not necessarily arise out of any wrongful act on the part of the defendant, the right to sue accrues day to day so long as the right in property subsists as already has been observed hereinabove. Rerence may be made to the case of Sarakhi Abdul Rahiman Taragan and another v. Mohidin Pathammul Bivi and another (XXXII Indian Cases 83). ' It is also settled law that the plaint in the suit cannot be rejected partly if it is found barred by law only again some of the defendants or if some of the plaintiffs are found not entitled to enforce the relief. Such pleas are to be decided at the trial. It is well-settled law that for rejection of the plaint, the Court has to confine itself to the contents of the plaint, taking them to be true and correct, and cannot look into the pleadings of the other side. It was also contended by the learned counsel for the said defendants that, the proceedings of this suit are liable to be stayed as Suit No,168/1979, filed by Mst. Amtul Rauf for administration, rendition of account and partition of various properties owned by the parties is pending before this Court. The learned Advocate for the plaintiffs urged that the above suit is not between the same parties. Some of the plaintiffs and defendants in the present suit are not parties in the said suit and some of the defendants in the said suit are not parties in the present suit. Section 10 of the Code comes into operation only when the matter in issue is also directly and substantially in issue in the previously instituted suit between the same parties. Stand taken by the learned counsel for the plaintiffs as stated above was not controverted by the learned counsel for the said defendants. Apart from above the previous suit being for administration of properties of the deceased Mahboob Bux, it cannot be said that issue involved in this suit like the purchase of share of third party is directly and substantially in issue in the said suit. The above plea is, therefore, overruled. ' C.M.A. No, 1939/1992 is, therefore, dismissed. CMA No, 681/1992.-- The plaintiffs have claimed joint ownership and management of the property whereas the said defendants have denied the ownership of the property to the extent claimed by the plaintiffs and have only conceded to such share to plaintiff No,1 as was inherited by him. It is, thereforce, to be first seen whether the plaintiffs are prima facie owners of the shares as claimed by them and they have been managing the property alongwith the said defendants. The learned Advocate for the plaintiffs in his arguments has mainly relied upon the documents filed alongwith the plaint and the affidavit in rejoinder. ' The case of defendant No,1 is that he is the real owner of the entire share purchased from Muhammad Nacem, out of which 25 paisas share was purchased by him in the name of plaintiff No,1 who is only an ostensible owner and benamidar for him and his family membeRs, So also it is his case that the gift of 20 paisas share in the property by plaintiff No,1 in favour of plaintiff No,2 and further gift by plaintiff No,2 to plaintiffs Nos,3 to 7 were made under his directions and are benami in nature. Similarly it is claimed by him that his mother Mst. Zainab Khanam was not the real purchaser of the share of Mst. Quraishunnisa but it was purchased by him in the name of his mother and has termed the gift made by Mst. Zainab Khanam, in favour of plaintiffs as invalid.
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' The property was being jointly managed by plaintiff No,1 and defendant No,1. The rental income of the suit property was being deposited in current Accounts Nos,540 and 825 of United Bank Ltd. With its Inverarity Road Branch and Current Accounts Nos,4801 and 4802 with National Bank of Pakistan, Saddar Branch, Karachi. The fact that the bank accounts were being maintained by both the parties jointly, shows that the property was being jointly managed by both the sides. The plaintiffs have produced four letters, two dated 1-6-1982 and the other two dated 2-6-1982, informing the above bankers that thenceforth the accounts were to be joinity operated by plaintiff No,1 and his wife plaintiff No,2 and defendant No,1 and his son Rafiuddin, defendant No,2. They have also produced copy of letter dated 14-4-1986,…
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