2025 PLP 232 (CLC)

In this Constitutional Petition, the Petitioners have impugned the Orders dated 20.10.2016 and 10.04.2017, passed in S.M.A No. 199 of 2015 and S.M.A No. 200 of 2015, respectively. The learned Single Judge of this Court amalgamated both S.M.As into a single suit on the premise that the properties and contestants are identical. The petitioners filed review applications against this Order, which were subsequently dismissed by the learned Single Judge of this Court as per the Order dated 10.4.2017. Consequently, both these orders are being challenged in this constitutional petition.

2. The petitioners' counsel argues that the learned Single Judge erroneously treated the SMAs as an administrative suit, despite the term 'regular suit' being defined under Section 295 of the Succcession Act. Counsel contends that the impugned orders contravene the law and, thus, can be entertained and adjudicated under the writ petition. Furthermore, the counsel submits that the matter pertains to the right of inheritance, thus amounting to a violation of fundamental rights, making the writ petition maintainable.

3. We have heard the learned Counsel for the Petitioner and have perused the record with his assistance.

4. The primary argument put forth by the learned counsel for the petitioner is that both the S.M.A should be regarded as a regular suit rather than an administrative suit. We find ourselves in disagreement with this contention of the learned counsel. The learned Single Judge of this Court, while adjudicating the Review Applications of the Petitioners filed against the Order dated 20.10.2016, observed that the court order under review, dated 24.10.2016, identifies the parties involved: the petitioner applying for a Letter of Administration is the plaintiff, and those objecting to the grant are the defendants. The Order stipulates that it will manifest in the form of a suit for the "Administration of the properties" of the deceased, in accordance with Order XX of the Civil Procedure Code 1908. The court has meticulously adhered to all the prerequisites of Section 295 of the Succession Act of 1925. The counsel's insistence on the insertion of the word "regular" before "suit" in Section 295 to recall/review the expression that "these SMAs are converted into a suit for administration/partition of the properties of the deceased" is misconceived. The Civil Procedure Code provides for a plethora of regular suits in diverse categories for various situations. When legal heirs of a deceased person contest their share in the deceased's property, any one of the legal heirs can initiate a suit for "administration" of the properties or file an application under Section 278 of the Succession Act, 1925 for a grant of "Letter of Administration" for the properties. In Section 295 of the Succession Act, 1925, if there is "contention", the proceedings should be transmuted into a "regular suit" as closely as possible according to the Code of Civil Procedure, 1908. A regular suit arising from the proceedings of a "Letter of Administration" can only be converted into a "suit for administration" of the property of any "deceased person".

5. The petitioners have erroneously impleaded a Single Judge of this Court as a respondent in the extant writ petition. Pursuant to Article 199 of the Constitution, writs may be issued to an entity discharging functions in connection with the affairs of the Federation, Province, or a local authority within the territorial jurisdiction of the High Court. Nonetheless, the designation 'person' employed in Article 199(1) does not encompass a High Court or other authorities/institutions delineated in Article 199(5). Consequently, a writ is legally untenable against the Order passed by the Single Judge of this Court under the purview of Article 199 of the Constitution.

6. It is unequivocally established that the Petitioners refrained from contesting the impugned Orders dated 20.10.2016 and 10.04.2017, which consequently attained finality. Furthermore, the Petitioners did not avail themselves of the alternate remedy of appeal, which was at their disposal. The record reveals that the Petitioners initiated two J.Ms. bearing Nos. 35 and 36 of 2019. However, both these J.Ms. were dismissed, albeit with the provision that both the defendants and plaintiff would retain the competency to raise any objection after the completion of proceedings under the preliminary decree.

7. In light of the aforementioned circumstances and discussions, we are inclined to conclude that the instant petition is not maintainable. This conclusion is further reinforced by the fact that the petition also suffers from laches, which the petitioner did not adequately and appropriately explain in the petition. Consequently, this petition is dismissed in limine. SA/T-12/Sindh Petition dismissed.