P L D 2014 Sindh 541 (PLP)

ZAFAR AHMED RAJPUT, J:- This High Court Appeal is directed against the order dated 1-10-2012, passed by the Single Judge of this Court in S.M.A No. 207 of 2008, whereby application (C.M.A. No.730 of 2012) under section 151, C.P.C., filed by the appellant/petitioner for seeking amendment in the said Succession Petition, was dismissed.

2. Briefly stated, the facts of the case are that the appellant had filed S.M.A. No. 207 of 2008, under section 278 of the Succession Act, 1925 for grant of Letter of Administration in respect of the estate of his deceased father, Muhammad Ayub, who died at Karachi on 8-11-1987 leaving behind him the surviving legal heirs, as mentioned in the paragraph No.4 of the said S.M.A. On 26-11-2008 the S.M.A. was allowed subject to rules, however, the appellant could not arrange the security and meanwhile two of the legal heirs of deceased. Muhammad Ayub, namely, Mrs. Nargis Bano (daughter) and Muhammad Anis (son) also died on 18-9-2009 and 27-2-2011, respectively. Mrs. Nargis Bano was survived by a husband and two daughters. The residue from the, share as would have been received by Mrs. Nargis Bano, therefore, is to be inherited by her brothers and the sisters. Likewise, Muhammad Anis was survived by a widow with the result his brothers and sisters who are already included among the legal heirs of deceased Muhammad Ayub became entitled to the share as would have been received by Muhammad Anis.

3. Under the said circumstances, the appellant filed C.M.A. No.730 of 2012, under section 151, C.P.C. praying therein to allow him to amend the Succession Petition by impleading three legal heirs of deceased Mrs. Nargis Bano and widow of deceased Muhammad Anis amongst the list of legal heirs of deceased Muhammad Ayub. The said application was dismissed by the learned Single Judge of this Court vide Order dated 1-10-2012 on the ground that application for amendment in pleadings in a disposed of matter was not maintainable and the learned Single Judge left it open for the legal heirs of deceased Mrs. Nargis Bano and Muhammad Anis to apply afresh for Succession Certificate/Letter of Administration for the debts and securities belong to them. It is the order against that this High Court Appeal has been filed.

4. With the above background, while appointing M/s. Mushtaq A. Memon, Advocate and Khawaja Shams-ul-Islam, Advocate as Amicus Curiae, the legal issue requiring consideration in the present High Court Appeal was noted by this Court in the Order dated 26-2-2014, as follows: "In this case a legal issue has been raised that whether after grant of application for letter of administration/succession certificate a subsequent application could be filed for impleading legal heirs or a new application for letter of administration on fresh cause of action is required to be filed".

5. Heard the learned counsel for the appellant, learned Amicus Curiae, and perused the material available on record.

6. Mr. Syed Masroor Ahmed Alvi, the learned counsel for the appellant has inter alia contended that the learned Single Judge of this Court, while rejecting the application of appellant for amendment in Succession Petition, did not consider the fact that the Letter of Administration cannot be issued in the name of deceased. He further contended that the order for grant of Letter of Administration was/is a formal order and since Letter of Administration was not issued, Succession Petition was/is deemed to be pending; therefore, the application filed by the appellant for amendment of Succession Petition was maintainable and liable to be allowed.

7. Mr. Mushtaq A. Memon Advocate, the learned Amicus Curiae, interpreting section 376 of the Succession Act, 1925 and Rule 400 of Sindh Chief Court Rules (0.S.) and referring the case of Miss Soonabai Hormusji Patel v. Mr. Dhunjishaw Hormusji Patel (PLD 1993 Karachi 619) has maintained that the principle of liberal construction as would advance the cause of justice can similarly be applied to the present case. He has further maintained that the difficulty seems to have been invited by the appellant himself by filing an application for amendment of pleadings and the learned Single Judge appears to have rightly held that an application for amendment of pleadings could not be maintained in a disposed of matter. However, applying the principal of advancement of justice and alleviation of technical rigours, the said application can be treated as motion for invocation of section 376 of the Succession Act, 1925 and the discretionary power of the Court be exercised to extend the grant of the share as would have been inherited by Mrs. Nargis Bano and Muhammad Anis out of the original estate of deceased Muharruuad Ayub. In this regard, the learned Amiens Curiae has relied upon the case of Mst. Baigan v. Abdul Hakeem and another (1982 SCMR 673) and Jane Margrete William v. Abdul Hamid Mian (1994 SCMR 1555) whereby it was held that mentioning of wrong provision can always be corrected by the Court of Law.

8. Mr. Khawaja Shams-ul-Islam Advocate, the learned Amicus Curiae has also supported the contentions of Mr. Mushtaq A. Memon, Advocate.

9. At the outset, it is necessary to mention that the jurisdiction for grant of Letter of Administration is exercised under Succession Act, 1925, read with Chapter XXII of the Sindh Chief Court Rules (0.S.) Indeed, there does not appear any direct provision as could answer the difficulty which is faced by the appellant. However, the Court is not divested of the power to meet like situation, once discretion is invoked by devoting itself to the cause of advancement of justice. The provision contained in Section 376 of the Succession Act, 1925 and Rule 400 of the Sindh Chief Court Rules (O.S.) permit relaxation of the letter of law instead of applying stringent and literal interpretation of the said provisions. For the sake of convenience, the provisions of Section 376 of the Succession Act, 1925 and Rule 400 of the Sindh Chief Court Rules (0.S.) are reproduced as under:

376. Extension of certificate.--(1) A District Judge may, on the, application of the holder of a certificate under this Part, extend executive, the 'victim.' would be the 'public trust' and the much needed "good governance".

10. This Court is of the firm view that the Notification of 3-7-2009 issued by the Provincial Government-would not apply to AMC, as the provisions of N.-W.F.P. Ordinance No. X of 2008 and N.-W.F.P. Act No. IV of 2008 had revived the Ordinance of 1978. In view of the clear provision of the statutory enactment, the subordinate legislation in the form of the Notification of 3-7-2009 would not be legally applicable to AMC.

11. Before parting with the judgment, this Court was informed that the affairs of AMC have been governed and orders and actions have been taken under Ordinance of 2002 since the Notification of 2-7-2009. What is strange to note is that this was despite the fact that the Ordinance of 1978 was revived by. N.W.F.P. Ordinance No. IV of 2008. These actions and orders need to be protected and preserved, unless dealt with otherwise in accordance with law, on the principles of 'closed and past transactions'. Reliance may be placed on Tika lqbal Muhammad Khan's case (PLD 2008 SC 615), Zafar Ali Shah's case (PLD 2000 SC 869), Col. (R) Syed Mukhtar Hussain v. Chairman, Federal Land Commission, Islamabad and 3 others (2004 CLC 1019), Naheed Fatima v. Syed Amir Azam Rizvi and others (PLD 1987 Karachi 670) and Muhammad Afzal v. Province of Sindh and others (2000 YLR 1395).

12. Accordingly, for the reasons stated hereinabove, this Court accepts the present petition in terms that; I. Ayub Medical College (Board of Governors) Ordinance, 1978 stands revived; II Notification of 3-7-2009 shall have no legal application to AMC; III The actions taken and order passed in regulating and carrying on the affairs and management of AMC since 2-7-2009 under Ordinance of 2002 stand protected under the principle of 'past and closed transactions', unless the same are varied, set aside or altered in accordance with law; IV The respondents in particular the Provincial Government are directed to take all steps to ensure the constitution and functioning of the Board of Governors of AMC, as provided under Ordinance of 1978 and the Regulations of 1980. MH/282/P Order accordingly.