2007 PLP 1451 (MLD)

IQBAL HAMEEDUR REHMAN, J.

Brief facts succinctly required for the adjudication of this civil revision are that one late Mst. Imtiaz Begum, who was the mother of the deceased Mst. Raheela Arjumand, widow of respondent No.3, filed a suit for declaration and permanent injunction, stating that Mst. Raheela Arjumand daughter of Kh. Fazal Rasool has been serving in the Education Department Government of the Punjab, Lahore, as a Secondary School Teacher. She died on 7-8-2003 when she was working as a Headmistress in Govt. Shah Din Middle School Hamad Colony Sher Shah Road, Shadbagh, Lahore. Respondent No.3 Kishwar Qadoos Pal/defendant No.3 is husband of Mst. Raheela Arjumand while petitioner No. 1, Kh. Mukhtar Rasool/ defendant No.4 and petitioner No.2 Kh. Ijaz Rasool/defendant No.5 are her brothers and Mst. Ghazala Qayyum petitioner No.3/defendant No.7, Mst. Shaheen Anwar petitioner No.4/defendant No.9, Mst. Rukhsana Khawaja petitioner No.5/defendant No.9 and Mst. Bushra petitioner No.6/defenndat No.10 are her real sisters. While joining the duties late daughter Mst. Rahcela Arjumand, nominated late Mst. Imtiaz Begum plaintiff to receive family pension, gratuity, general provident fund, group insurance, outstanding and other benefits payable under the law at her death. The said nomination was made as a mother of late Govt. Employee, as per Civil Services Punjab' Rules. After the death of Mst. Raheela Arjumand, the plaintiff Mst. Imtiaz Begum filed a number of applications to respondent No.2, Deputy Directress presently D.O. Directorate of Education. Lahore Division Lahore but she refused to release .all the benefits to the petitioner Mst. Imtiaz Begum, resultantly she riled a suit for declaration and permanent injunction claiming therein that since she was nominee of Mst. Raheela Arjumand, therefore, was entitled to pension and other service benefits. Respondents Nos. 1 to 3 contested the suit by filing written statements on the grounds that the suit .was pre-mature, without any cause of action and the status of the nominee was also disputed and that respondent No.3 was entitled to the benefits claimed by the plaintiff Mst. Imtiaz Begum.

2. It was during the pendency of the suit that respondent No.3 Kishawar Qadoos Pal filed an application under Order VII rule 11, C.P.C. for refection of the plaint. During the pendency of the said suit the plaintiff Mst. Imtiaz Begum expired. The petitioners filed an application, praying that legal heirs of the plaintiff Mst. Imtiaz Begum may be impleaded as plaintiffs in the suit. The learned Civil Judge 1st Class, Lahore, vide order, dated 19-9-2005 while deciding the above said applications dismissed the suit of the plaintiff Mst. Imtiaz, Begum, with the following observations:-- "It is settled law that a nominee cannot have the assets of the deceased. A nominee is merely to collect the assets and distribute them among the legal heirs. Where a nominee is also one of the legal heirs, he can retain his share only and the rest is to be distributed. In the case in hand, deceased plaintiff set up her claim against all the other legal heirs. She claimed her exclusive right to the assets of the deceased. By such; she excluded defendants Nos.4 to 10 also. Now the plaintiff has expired. Although defendants Nos.4 to 10 are sons and daughters of the deceased yet plaintiff had no title to the whole of the assets of Mst. Raheela Arjumand. Her share was only being mother 2nd now upon her death, it also stands transferred to the defendants Nos.4 to

10. In this perspective of the matter, to allow the defendants Nos. 4 to 10 to be impleaded in the plaint will be a futile. exercise. No exclusive rights to the whole of the assets of the deceased Mst. Raheela Arjumand can either be granted the Mst. Imtiaz Begum or defendants Nos.4 to

10. As a result of the above discussion, assets of the deceased are now to be distributed among her husband defendant No.3 and her brothers and sisters defendants Nos. 4 to 10." Against the said order, respondent No.3 filed an appeal which was accepted by the learned Additional District Judge, Lahore, vide order, dated 4-11-2006 and the order of the learned trial Court, dated 19-9-2005 was set aside, directing the concerned authorities to work out benefits in accordance with prevalent rules regarding determination of pension, gratuity, Provident Fund, Benevolent Fund and any other benefit which was due to her if she should have been alive to receive herself, these emoluments. The learned Additional District Judge in his order observed as under:-- "The declaration was pre-mature and if she was desirous of to prefer any claim she should have 1'ilcd petition before the concerned authority

It is strange to observe that when the declaration was only to determine the status of nominee claimed by the plaintiff Imtiaz Begum who died during the pendency of trial of the declaratory suit in this respect then the observation recorded by the learned trial Court was not warranted by law

The learned counsel for the appellant produced the Punjab Provident Rules regarding determination of due benefits to be received by respondent/defendant No.3 husband of Mst. Raheela Arjumand but it is to be decided by the department as they arc supposed to be fully conversant with the prevalent Rules to this effect. The claimant Imtiaz Begum who had claimed during her life time her sole entitlement as nominated nominee is in no way a hurdle to decide the case for the benefits to be given to deceased/husband etc. This 'very contention of the learned counsel for the petitioners/appellants has some substance that the husband does come in the term of family." Against the said order, dated 4-11-2006, the petitioners have filed this civil revision.

3. It is contended by learned counsel for the petitioners that although the learned trial Court had neither framed any issue nor recorded airy evidence. yet the suit was dismissed and the learned trial Court had not rejected the plaint and even in those circumstances, the petitions stood satisfied with the observations of the trial Court and they chose not to file any appeal but respondent No.3 filed an appeal which was accepted by the learned appellate Court vide order, dated 4-11-2006. That both the Courts below have not disposed of the lis in a legal way, when the parties were at variance both on law and 'facts the Courts below are left with no option but to frame issues and direct the parties to produce evidence in support of their pleas and render the judgment on merits or in the alternative, the plaint could be rejected under the provisions of Order VII rule 11, C.P.C.; that these were the only two options, one was to reject the plaint wider Order VII rule 11, C.P.C. and the other was to frame issues and decide the suit on merits after recording of their evidence but the same has not been done in the instant case and the findings in the instant case do not meet with the mandatory procedure laid down under the law, therefore, these cannot sustain in the eyes of law; that there were controversies (i) whether the deceased Mst. Imtiaz Begum mother of Mst. Raheela Arjumand was a nominee or not'? (ii) what would be the effect if she was proved to be nominee? and (iii) whether if she was alive and not having been able to prove herself as nominee, was she entitled to inherit according to Sharia and if she has died, whether her legal heirs were entitled to it and keeping these factors, it was needed for framing of issues so that the matter could be properly adjudicated and finally decided on merits; that the petitioners were satisfied to some extent with the observations of the learned trial Court as some relict' had been granted but when the appellate Court came to the conclusion otherwise, the petitioners constrained to file this petition; that the learned appellate Court had absolutely no option except to remand the case to the learned trial Court to proceed according to the law either to frame issues and call upon the parties to produce their evidence before the trial Court and the same be decided on merits or the suit was to be rejected as not being competent; that the ,judgment of the learned lower appellate Court is highly unusual and totally illegal as the mode of disposal of the lis with the learned appellate Court failed to render any verdict; that in the observations of the learned appellate Court it is stated that "nominee is in no way a hurdle to decide the case for the benefits to be given to deceased husband etc". and the petitioners can be said to have fallen in the category of etc., as such the findings of the learned appellate Court cannot sustain and it had given complete authority, to respondents Nos. 1 and 2 to determine and decide the case on merits as such the judgment of the learned appellate Court cannot sustain and the same be set aside and the case be remanded to the learned trial Court by restoring the suit of the petitioners and the same be decided on merits after framing of issues and recording of evidence.

4. On the other hand, learned counsel for the respondents contended that the matter comes within the circumference of special law and the special law is applicable and the same is to prevail in the matter; that after the death of the plaintiff Mst. Imtiaz Begum, the suit had abated; that benevolent fund cannot be said to be inherited property of a Government servant and in this respect reliance is placed upon Federal Government v. Public at large (PLD 1991 SC 731), wherein it has been held that:-- Reliance is also placed upon Punjab General Provident Fund Rules, 1978 and according to the said rules, the definition of family means:-- "in the case of a female subscriber, the husband and children of a subscriber, and the widow or widows and children of a deceased son of a subscriber. " As such the mother cannot be appointed as a nominee as she does not fall within the definition of the family. Reliance is also placed upon proviso to rule 1.7 of the said Rules, which is as under:-- "if at the time of making the nomination the subscriber has a family the nomination shall not be in favour of any persons other than members of his family." That payment to be made on the death of subscriber is prescribed under rule 1.34 of the said Rules, which is as under:-- "(i) When the subscribed leaves a family:-- (a) If a nomination made by the subscriber in accordance with the provisions of rule 1.7 in favour of a member or members of his family subsists, the amount standing to this credit in the Fund or the part thereof to which the nomination relates shall become payable to his nominee or nominees in the proportion specified in the .nomination; (b) If no such nomination in favour of a member or members of the family of the subscriber subsists, or if such nomination relates only to a part of the amount standing to his credit in the Fund, the whole amount or the part thereof to which the nomination does not relate, as the case may be, shall, notwithstanding any nomination purporting to be in favour of any person or persons other than a member or members of his family, become payable to the members of his family in equal shares." Accordingly, only the family members, as defined under the rules are entitled to receive the payment and no other person is entitled; that the rules are exhaustive and the authorities arc fully competent, as such the findings of the learned appellate Court are fully justifiable and no illegality or irregularity and jurisdictional error has been committed; that the suit was pre-mature and the plaintiff, Mst. Imtiaz Begum should have first approached the respondent Nos. 1 and 2; that actually the petitioners have not approached this Court with clean hands and have made factual concealments from the Court; that there is no nomination in the naive of Mst. Imtiaz Begum available on the record of the department that the observations of the learned Civil Judge 1st Class, Lahore, cannot sustain and the suit should Dave been dismissed and in these circumstances, the learned appellate Court rightly accepted the appeal of the respondent and no illegality or irregularity has been committed.

5. I have heard learned counsel for the parties and perused the impugned orders.

6. Admittedly, in the suit no issues were framed and no evidence was recorded. The pleadings of the parties were at variance. The deceased Mst. Raheela Arjumand died issueless. Her assets were to be devolved upon her legal heirs according to Sharia. Accordingly, respondent No.3 and other legal heirs were entitled to their respective shares in the inheritance in accordance with law, as has been observed in the impugned judgments. Further live controversies were to be decided by the learned trial Court on the questions (i) whether the deceased Mst. Imtiaz Begum mother of Mst. Raheela Arjumand was a nominee or not'? (ii) what would be the effect if she was proved to be a nominee'? and (iii) whether if she was alive and not having been able to prove herself as a nominee, was she entitled to inherit according to Sharia and if she has died, whether her legal heirs were .entitled to it. These facts- called for the framing of issues so that the matter could have been adjudicated and finally decided on merits. As such the findings of the learned trial Court do not meet with the mandatory requirements of law and procedure and, therefore, the same cannot sustain. Although it appears from the perusal of the observations of the learned appellate Court that the appellate Court had given authority to respondents Nos. 1 and 2 to decide the matter, yet the matter purely falls within the domain of the Civil Court to adjudicate and pronounce proper verdict on merits after following the mandatory procedure envisaged by law. Learned counsel for the respondents has relied upon the rules and the special laws which cover the applicability of all the benefits claimed by the plaintiff and the said implications of the law can only be adjudicated upon and determined by the Civil Court and not by the authorities, therefore, the blanket cover given by the verdict of the appellate Court to the authority cannot be maintained.

7. In view of the above perspective, this revision petition is accepted, impugned orders are set aside and the case is remanded back to the learned trial Court to decide the suit of the petitioners/plaintiffs which shall be deemed to be pending before it, on merits after framing of the issues and recording of the evidence. The parties are directed to appear before the learned Civil Judge 1st Class, Lahore on 15-6-2007, who shall expeditiously decide the matter. No order as to costs. S.A.K./M-348/L Case remanded.