P L D 1979 Quetta 35 (PLP)

This appeal under section 299 of the Succession Act, 1925 read with section 96 of the Code of Civil Procedure (hereinafter referred to as C. P. C.) assails the order of the Senior Civil Judge, 1st Class, Quetta with the powers of District Judge. Quetta made on 11th October, 1977 dismissing the ‑appellant's application for the grant of letter of administration.

2. The short facts forming the background of this case are that Mst. Lachhmi Bai who allegedly possessed some immovable property in Quetta and some movable property in Mastung died in the year 1966 at Mastung. After her death her adopted son, the appellant herein, filed an application for the grant of letter of administration on the ground that by dint of a will dated 5th May, 1966 executed in his favour by the deceased, he was entitled to the issuance of a letter of administration in respect of the property which has adequately been described in the application as well as in, the imugned order.

3. A notice was published in a Newspaper inviting objections, if any, by any member of the public. in General to the issuance of the certificate applied for and persuant thereto only the second respondent came forward on 15th December, 1972 with the prayer that he may be impleaded as a necessary party to the case on the ground that the deceased was living with him at the time of her death and that he was also her general attorney. The application was allowed; whereafter he filed his reply to the main application and Inter alia pleaded that the will alleged to have been executed in favour of the appellant was in-genuine and also that late Mst. Lachhmi Bai had left no movable or immovable property at Quetta at the time of her death and therefore, the Court had no jurisdiction in the matter. Upon the pleadings of the parties the lower Court framed the necessary issues to adjudicate the case both on preliminary points as well as on merits But he gave his findings only on the following two issues which were concerned with the point of jurisdiction :‑ "(1) Whether this Court has no jurisdiction to entertain this application ? (2) Whether the deceased bad left any property at Quetta at the time of her death ? On the basis of the evidence led before it, the lower Court dismissed the application for want of jurisdiction holding that the deceased had left no property at Quetta at the time of her death ; hence this appeal.

4. The only contention raised by Mr. Hanafi is that under the provisions of Order VII, rule 1.0, C. P. C. the lower Court should have returned the application to the appellant for presentation to the proper Court once it was of the view that it had no jurisdiction in the matter and the impugned order to the extent of dismissal of the application was illegal. He further pointed out that if the applicant was required to file a fresh application in the Court having jurisdiction in the matter, the same would obviously be barred by time with the result that his case will ultimately stand dismissed on a technical ground only. On the other hand Mr. Azizullah Memon the learned counsel for 2nd respondent urged firstly that Order VII, rule 10, C. P. C. was only applicable to the plaints and not to the applications including one for the grant of letter of administration and secondly that once the point of jurisdiction was contested by an applicant/plaintiff and the Court reached the conclusion that it had no jurisdiction in the matter, the only result that could legally follow was dismissal of the plaint/application and not its return. In short he meant that the question of the return of the plaint/application would only arise in such a case where the plaintiff/ applicant, did not contest the question of jurisdiction and conceded to the objection or the Court itself returned the plaint/application at the initial stage and as in this case the Court made a probe into the question by taking evidence etc. therefore it was legally bound to dismiss the application which it rightly did.

5. I would like to dispose of the objection with regard to the applica bility of Order VII, rule 10, C. P. C. to the application first. In this connection a reference to section 141, C. P. C. would be relevant. It reads as under :‑ "Miscellaneous proceedings.‑The procedure provided in this Code in regard to suits shall be followed, as far as it can be made applicable, in proceedings, in any Court of Civil jurisdiction." It is an admitted fact that the Court of the Senior Civil Judge 1st Class with the powers of the District Judge under the Succession Act was a civil Court and the proceedings were strictly of civil nature. It is also an undisputed fact that for all practical purposes a Court seized of jurisdiction in a matter covered by the Succession Act would follow the entire procedure laid down in the C. P. C. as far as possible. In such circumstances, the applicability of Order VII, rule 10, C. P. C. can not be excluded only on the' ground that in this provision of law only the word plaint has been used I am therefore of the view that by virtue of section 141, C. P. C. reproduced above, the procedure applicable to the plaints would govern such application also. Mr. Memon relied upon the case of Gupleshwar Missir v. Ghaturanand Missir and others (A I R 1950 Pat. 309) wherein with reference to an application under Order XXXIII, rule 7 of C. P. C. seeking leave to sue as pauper, it was held that such application unless granted shall not be covered by Order VII. rule 10, C. P. C. The facts of this case do not apply in all the fours to the facts and circumstances of the present case. However as far as the observation that the word plaint did not include an application are concerned I respectfully disagree to the views taken in this case. But I wish to make it clear that: all applications may not be covered by Order VII, rule 10, C. P. C. but it would certainly be applicable to applications which are governed by the e procedure of C. P. C. and require a trial in somewhat similar manner as is required in case of trial of a case based on a plaint. On the other point that once a party contested the question of jurisdiction and after the trial of the case if the Court reached the conclusion that it had no jurisdiction in the matter the only result that should legally follow would be dismissal of the case and not the return of the plaint, I was referred the case of Sharram Singh v. Saddhu Singh (A I R 1928 Lah. 484) in which it was held that Order VII, rule 10, C. P. C. was not applicable to cases where a Court originally had jurisdiction to try a suit but at the time of passing decree discovered that it was incompetent to pass the decree for the reason of its pecuniary jurisdiction. This case is also not very relevant for our purposes. In Ahmed Shah v. Messrs Grindlay & Company Ltd. (A I R 1944 Sind 98) the question that came up for consideration was as to what was the proper stage for the test of jurisdiction and it was held that a plaint should be subjected to this test at the time of institution and that at a later stage if it was found that the plaintiff was not entitled to the relief claimed, the plaint should not have been returned. The other cases placed before me in this connection were. Goverdhandas Vishindas v. Mt. Rijhfbai and others (A I R 1930 Sind 252), Magia Hagria v. Sakes and others (A I R 1944 Nag. 331). In these case also the same view was taken as in the earlier cases. However the point of distinction between these cases and the case in hand is that in these cases the point of jurisdiction was not separately determined and the cases were tried on merits also and it was at the stage of passing a decree that the Courts discovered that they had no jurisdiction for one or the other reason. It is the main reason why it was held that the test of jurisdiction by the Courts was relevant at the initial stage but once the case was tried on merits and lack of jurisdiction was noticed, the question of return of the plaint did not arise. In the instant case the decision was not given on merits and the application was only disposed of upon the consideration of the evidence led on the point of jurisdiction alone. Accordingly these cases stand on different footings and if the application in this case is refs ed to be returned and it is insisted that a fresh application should be moved by the appellant that application would obviously be barred by limitation and adoption of such procedure would mean to deprive the petitioner of the relief to which he could be found entitled by a competent Court if the case was tried on merits. It is never the intention of law that an aggrieved party should be shut up on technical grounds. On the other hand it has always been the view o the Courts in this country that as far as possible cases should be decided on merits. In this view of the matter I am inclined to hold that by virtue of section 141, C. P. C. the application made in this case was covered b the word plaint used in Order VII, rule 10, C. P. C. and that as the case had not been tried and decided on merits, the lower Court should have returned the plaint for presentation to the Court having jurisdiction in the case which is this Court in respect of cases emanating from Kalat Division in view of the decision of the Full Bench of this Court in Jia Ram v. Mst.i Kundana Wanti and others (P L D 1978 Quetta 91).

7. Mr. Hanafi in support of his contention that once a Court reached the conclusion that it had no jurisdiction to try the case was legally bound to return the plaint for presentation to the competent Court instead of dismissing it referred me to the case of Abdul Wahid Khan v. Ghulam Nabi (P L D 1953 Bal. 1). Although this case was decided by the Judicial Commissioner, Baluchistan but I feel that the principle enunciated therein is worthy of credence. In this case it was held that if a suit was not maintainable in the Court of Small Causes where it had been instituted the Court should have returned it as required by Order VII, rule 10, C. P. C. instead of dismissing it. The other most important case in this connection is that of Akram v. Zakria Khan and others (P L D 1962 Pesh. 7). In this case Mr. Justice S. Anwarul Haq (as be then was) held as under :‑ "Once the Court had come to the conclusion that it has no jurisdiction to entertain the suit, then the Order VII, rule 10 of the Civil Procedure Code, 1908 entitles it to return the plaint, and the Court whose jurisdiction bad been barred, need not go into the further question whether a suit or only an application would lie in another Court. The proper order to make in such a case is to return the plaint to the plaintiff under the provisions of Order VII, rule 10, C. P. C. and not to dismiss the suit." The principle enuncisated in this case applies on all fours to the facts and circumstances of the instant case. In this case although the Senior Civil Judge, Quetta recorded evidence on all the issues but decided the question of jurisdiction alone on the ground that in view of the evidence it was manifest that the deceased had left no property at Quetta at the time of her death and therefore he had no jurisdiction in the matter. But he erred only in this much that instead of ordering the return of the application for presentation to the proper Court, he dismissed it. For the foregoing reasons I allow the appeal, set aside the impugned order dated 11th October, 1977 to the extent of its concluding paragraph and direct that the application in question should be returned to the appellant for presentation to this Court for decision on merits. In the circumstances of the case there shall be no order as to costs. S. A. H. Appeal allowed.