P L D 2008 Karachi 109 (PLP)

NADEEM AZHAR SIDDIQUI, J.

By this application (C.M.A.No.9881 of 2007) the Defendant No.1 has prayed for recalling of order dated 23-1n-9.007 by which the Defendant No.1 was directed to produce his evidence. The learned counsel for Defendant No.1 submits that the order was passed without hearing him and that since the plaintiffs have filed the suit the burden is upon them to prove that at the time of death the deceased Zahida Begum has left any property inherited by the parties to the suit. The learned counsel has referred to Order XVIII, Rule 1, C.P.C. and submits that plaintiffs have right to begun. He relied upon the reported case of Fasihur Rehman Alvi v. Inamur Rehman Alvi PLD 1993 Kar.

33. On the other hand the learned counsel for the plaintiffs submits that the application is in the nature of review and not maintainable being time barred and that the burden to prove the issues is upon Defendant No.1 therefore he has the right to begun. The learned counsel also referred to Order XVIII, Rule 1, C.P.C. The issues in this case were framed on 10-4-2007 and thereafter the case was fixed for evidence on several occasion and only on 23-10-2007 in absence of the learned counsel for Defendant No.1 the order was passed. Before 23-10-2007 this controversy was never raised. The Defendant No.1 has invoked section 151, C.P.C. No specific period of limitation is provided for filing an application under section 151, C.P.C. Under section 151, C.P.C. court is empowered to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of Court. It is an accepted principle of law that an act of Court should not prejudice any one. The order has been passed in the absence of learned counsel for Defendant No.1 and his explanation in the affidavit has gone unrebutted. The Court before passing the order has not afforded any opportunity to the Defendant No.1 to submit his case before it. The Court possesses inherent power to rectify such mistake, as an act of Court should not prejudice anyone. In views of the above the order dated 23-10-2007 is recalled. However, this controversy will be decided after hearing the learned counsel for the parties. By this application (C.M.A. No.9993 of 2007) the Defendant No.1 has prayed for framing of additional issues. The learned counsel for Defendant No.1 submits that the plaintiff has filed suit for administration and partition of the property of the deceased and no such issues has been framed. He submits that the issues sought to be framed are very material for the proper adjudication of the case on merits. The learned counsel for the plaintiffs has opposed the said application and submits that issues were framed on 10-4-2007 and thereafter at the request of the learned counsel for Defendant No.1 additional issues were framed on 28-8-2007. He 'submits that the only object of Defendant No.1 is to delay the proceedings and to deprive the other legal heirs of the deceased from their share in the property. The plaintiffs have filed the suit for administration and partition of the property allegedly left by deceased Mst. Zahida Begum. The issues were framed on 10-4-2007 and additional issues were framed on 28-8-2007. No issue with regard to the controversy in the suit has been framed. In absence of issues it appears that the claim of the plaintiffs that the deceased has left the property has been admitted. The learned counsel for the plaintiffs has referred to para.2 of the plaint and submits that in para.2.2 of the written statement the Defendant No.1 has admitted the claim of the plaintiffs and framing of issues are not necessary. I have gone through the averments of the paras referred by the learned counsel for the plaintiffs. The Defendant No.1 in para. 2.2 of his written statement submit as under:-- 2.2.) The initial ownership of the suit property by answering defendant's deceased mother is not denied. It is vehemently denied that at the time of answering defendant's mother death she left behind the suit property as her estate. From the above it is clear that the Defendant No.1 has not admitted that at the time of death the deceased has left any property. The issues can be amended at any stage of the suit. In this matter till to date no evidence has been recorded and if at this stage additional issues are framed no prejudice will be caused to anyone and both the parties will get full opportunity to prove their respective case. The learned counsel for the Defendant No.1 is correct that no issues with regard to the main controversy in the suit has been framed. The main controversy between the parties is whether at the time of death deceased Mst. Zahida Begum has left any property or not. In view of the above this application is allowed as prayed and the following additional issues have been framed:-- (1) Whether at the time of her death deceased Mst. Zahida Begum has left any property capable of administration and partition? (2) Whether the plaintiffs and Defendant No.2 are entitled to any share in the property in question? If yes to what extent? (3) Whether Muhammad Farhad is the lawful general attorney of Defendant No.2? After framing of the above issues the issues in the suit are as under:-- (1) Whether at the time of her death deceased Mst. Zahida Begum has left any property capable of administration and partition? (2) Whether the plaintiffs and Defendant .No.2 are entitled to any share in the property in question? If yes to what extent? (3) Whether the suit property was ever gifted by the deceased Mst. Zahida Begum to defendant? (4) Whether the alleged gift Deed dated 14-3-1983 is forged/manipulated and is liable to be cancelled? (5) Whether the plaintiff has received a sum of Rs.25,000 from the Defendant No.1 in consideration of his share and of the other plaintiffs. If yes what is its effect? (6) Whether the plaintiffs were restrained from entering into the suit property by the defendant? (7) Whether Muhammad Farhad is the lawful general attorney of defendant No.2? (8) To what relief the plaintiffs are entitled? The application is disposed of as above. Office is directed to fix this case for evidence according to roster. M.H./M-171/K Order accordingly.