Aftab ur Rehman Awan VS Public at-Large

JUDGMENT SHEET

IN THE ISLAMABAD HIGH COURT, ISLAMABAD

JUDICIAL DEPARTMENT

C.M.A.No.171 of 2022 Aftab-ur-Rehman Awan Vs.

Public at Large.

Dates of Hearing: 26.05.2023, 19.09.2023 and 16.11.2023. Appellant by: M/s Waleed Saeed Sheikh and M. Hassan Malik, Advocates.

Mr. Fiaz Ahmed Anjum Jandran, Advocate , Amicus Curiae.

MIANGUL HASSAN AURANGZEB, J:- Through the instant appeal under Section 299 of the Succession Act, 1925 (“the 1925 Act”), the appellant, Aftab-ur-Rehman Awan, impugns order dated 09.12.2022, passed by the Court of the learned Civil Judge, Islamabad, whereby appellant’s application under Section 278 of the 1925 Act for issuance of letter of administration was returned by invoking the provisions of Order VII, Rule 10 C.P.C.

2.On 07.07.2022, the legal heirs of late Fazal-ur-Rehman Awan filed an application under Section 278 of the 1925 Act seeking the issuance of a letter of administration with respect to the properties listed in paragraph-2 of the said application. All the said properties are situated in Dubai, United Arab Emirates.

3.The application was filed against the Public at Large. After the issuance of notice through proclamation in the newspaper, ex-parte proceedings commenced on 30.07.2022. The learned Civil Court vide order dated 09.12.2022 returned the appellant’s said application by invoking the provisions of Order VII Rule 10 C.P.C. on the sole ground that since the properties with respect to which the letter of administration had been sought were beyond the territorial jurisdiction of the said Court. The said order has been assailed by the appellant in the instant appeal.

4.Learned counsel for the appellant submitted that the appellant had made an effort for the properties in Dubai to be transferred to all the legal heirs of late Fazal-ur-Rehman Awan but Courts in Dubai had required them to obtain a letter of administration from Pakistan; and that since the appellant and other legal heirs of late Fazal-ur-Rehman reside in Pakistan, the learned Civil Court had the jurisdiction to issue a letter of administration.

5.This Court had vide order dated 16.05.2023 appointed Mr. Fiaz Ahmed Anjum Jandran, Advocate as an Amicus Curiae in the matter. He submitted a well prepared brief on the case. His conclusion was that the Courts in Pakistan would have jurisdiction with respect to the property situated in Pakistan but not with respect to the property situated abroad.

6.A matter similar in nature to the case at hand was dealt with by the Hon’ble High Court of Sindh in the judgment reported as PLD 2019 Sindh 130. In the said case, the question before the High Court was whether it could pass an order for letter of administration and succession certificate in a non-contentious matter for properties of the deceased (domiciled in Pakistan and having a Pakistani passport and CNIC) located in the United Kingdom and the United Arab Emirates. It was held inter alia that in view of the provisions of the Foreign Judgments (Reciprocal Enforcement) Act, 1933, Pakistan Act, 1990 and the Reciprocal Enforcement of Judgments (Pakistan) Order, 1958, which are English Statutes read with Notification (SRO208(I)/2007) dated 06.03.2007, notifying arrangement of the reciprocity, recognition and enforcement of judicial decisions with United Arab Emirates Civil Procedure Code, Federal Law No.(11) of 1992, proceedings in the nature of succession could be initiated in any one of the said jurisdictions where the properties were situated and orders in such proceedings were enforceable in the other foreign jurisdiction. It was also held that if such Statutes did not exist in the United Kingdom and United Arab Emirates, then Courts in Pakistan would have no jurisdiction in respect of the properties situated in such territory. In the said report, due regard has been made to the law laid down by the Hon’ble Supreme Court in the cases reported as PLD 2016 SC 174 and PLD 1968 Karachi 480, but the said judgments have been distinguished.

7.As regards the case of Rana Muhammad Hanif Khan (Deceased) through LRs Vs. Saddiq Khan through LRs (2022 SCMR 852), the same was a contentious matter pertaining to the recovery of compensation / damages with respect to the property located in the United States of America. There are no Statutes or arrangements of reciprocity, between Pakistan and the United States of America in the nature of ones existing between Pakistan and United Arab Emirates.

8.Since I find myself in agreement with the law laid down by the Hon’ble High Court of Sindh in the case reported as PLD 2019 Sindh

130 and since the proceedings before the learned Civil Court were not contentious in nature, the instant appeal is allowed and the matter is remanded to the learned Civil Court for a decision afresh. It will be for the appellant to produce the relevant Statutes and notifications showing the arrangements of reciprocity between Pakistan and United Arab Emirates before the learned Civil Court.

(MIANGUL HASSAN AURANGZEB)

JUDGE

Announced in an open Court on 17.11.2023

JUDGE

Sanaullah