P L D 2017 Sindh 486 (PLP)

SALAHUDDIN PANHWAR, J.--At the outset, learned counsel for Petitioner contends that due to objections filed by Objector, the captioned SMA was converted in a suit for administration vide order dated 18.11.2015 however order dated 20.11.2015 shows that SMA was dismissed with observation that legal heirs may file suit for administration and partition of the properties of different deceased persons, if so advised. I have perused both orders. Order dated 18.11.2015 is reproduced hereunder:- "Since objection has been filed, this SMA is converted into a suit for administration." as well as order dated 20.11.2015 is reproduced hereunder: "This S.M.A. was filed on 13.03.2013 and the learned counsel for petitioner has not been able to fully comply with the office objections. There are three different deceased persons whose different estates are claimed to be inherited by the petitioner and others, which are not supposed to be distributed among persons claiming to be the legal heirs of three different deceased persons, as there could be some other legal heirs of those deceased persons. In view of above factual position, this S.M.A. is not maintainable and dismissal of this S.M.A. would not operate res judicata. The legal heirs may file suit for administration and partition of the properties of different deceased persons, if so advised. With these observations this S.M.A. is dismissed." It is settled principle of law that when caveat is filed in SMA, normal course is to convert it in suit for administration and that course was adopted in view of Chief Court Rule 413, therefore, prima facie order dated 18.11.2015 was legal and in accordance with procedure. Since, by first order dated 18.11.2015 the instant SMA stood converted into a 'suit' hence it was no more a `SMA' therefore, dismissal of the SMA (a thing not legally existing) cannot be legally ordered. In addition to this, dismissal of the SMA on 20.11.2015 (i.e after conversion thereof into a suit) for failure of some compliance, ordered on 13.3.2013, seems to be result of lost sight of the order dated 18.11.2015 which finds support from claim of counsel for petitioner that she was not present at such occasion. I may also add that once the Court competently ordered conversion of proceedings from SMA to administrative suit then a direction in former proceedings shall loose its value and weight and things shall proceed as per procedure, provided for later (converted) ) proceedings. I would add that a suit for administration legally cannot be dismissed simply for reason that there may also be some other legal heirs, not made party in suit, because inquiry in that regard can competently be done within scope of administrative suit. Thus, it purely seems to be an inadvertent mistake of court which per settled law should not result in prejudicing any body. Further, the order dated 18.11.2015 holds the field hence if at time of order dated 20.11.2015 i.e. dismissal of SMA would have been pointed out , this (order dated 20.11.2015) would not have been passed. A bona fide inadvertent mistake even of Court can always be corrected/ratified by exercising powers, provided by Section 114, C.P.C. coupled with inherent jurisdiction within meaning of Section 151, C.P.C. which is meant for the ends of justice or to prevent abuse of the process of the Court. Accordingly, order dated 20.11.2015 is hereby set aside and position, as was ordered vide order dated 18.11.2015 is restored. Office shall assign the number as Suit for Administration and fix the same with notice to all the parties. In view of above, listed applications are disposed of. MH/Q-6/Sindh Order accordingly.