RAFAT MALIK JAMAL (Appellant) VS MUNAWAR MALIK JAMAL & ORS (Defendant)

ORDER SHEET

IN THE HIGH COURT OF SINDH AT KARACHI

Suit No.1405/1998

Date Order with signature of Judge

Defendant No.4 Shaukat Jamal is present in person.

Mr. Talha Kamal, advocate for the Defendant No.7.

Mr. Muhammad Vawda, advocate for the Defendant No.9 & 10. Mr. Iftikharul Hasan, advocate for CDGK.

Mr. Danial Bux, advocate holding brief for Mr. Rehman Aziz Malik, advocate for the Interveners.

NAZAR AKBAR J.- This order will govern the disposal of an application (CMA No.3761/2015) for review of order dated 13.02.2015 passed on CMA No.2003 of 2015.

2.In fact this suit is pending since 1998. This is a disposed of suit for administration of the estate of the deceased. The entire properties have already been ordered to be sold through Court. At present the controversy is between the Plaintiff and the intervenors who had filed an application bearing CMA No.11416/2008. Intervener’s application was allowed on 10.2.2014 but in High Court Appeal No.62/2014 the said order was modified on 15.4.2014 when the Hon’ble Division Bench of this Court remanded the case to the Single Bench “to decide the issue of status of the Interveners whether they are legal heirs or not” by recording of evidence of the contestants within six months. However, parties are playing blame game against each other and failed to get the issue decided within the timeframe given by the Honourable Division Bench in HCA No.62 of 2014. Ultimately after more than six month this case was fixed before me and to ensure expeditious disposal of the issue in terms of orders in HCA No.62 of 2014 by order orders 13.2.2015 I appointed commissioner for

recording evidence on the sole issue between the Plaintiff and the intervener.

3.The order sought to be reviewed was passed on the application of Interveners (CMA No.2003/2015) in continuation of the order in HCA No.62/2014 as there is no other controversy left in the suit. This application appears to have been filed precisely to frustrate the order passed in High Court Appeal No.62/2014 dated 15.4.2014 and the order under review dated 13.2.2015. Till date no evidence has been recorded, and the learned counsel admits that it was partly due to the pendency of this review application and partly on account of adjournments sought by the parties. It is settled law that issues can be resettled by Court even after recording of evidence and just before final order. It could be done suo- moto by the Court in terms of Order XIV Rule 5 CPC or on the request of the parties. The provisions of Orders XIV Rule 5 CPC reads as follows:-

5.Power to amend, and strike out, issues. (1) The Court may at any time before passing a decree amend the issue or frame additional issues on such terms as it thinks fit, and all such amendments or additional issues as may be necessary for determining the matters in controversy between the parties shall be so made or framed.

(2)The Court may also, at any time before passing a decree, strike out any issues that appear to it to be wrongly framed or introduced.

4.The purpose of above provisions of CPC is to ensure that recording of evidence of the parties should not be postponed on the pretext of any issue, according to either party, was properly framed, left out to be framed or not properly framed by the Court. I may add, the counsel when filed this application (CMA No.3761/2015) was not sure that whether the order

dated 13.2.2015 under review contained typographical error or it was result of overlooking certain facts on the face of the record. Nor he has shown what prejudice has been caused to his client for which the review was necessitated. The provisions of review of an order under section 114 CPC or Order XLVII Rule 1 CPC and the provisions of section 151 CPC for correction of clerical or arithmetical mistakes in the order cannot be invoked simultaneously.

5.In view of the above legal and factual position, the failure of the applicant to record evidence on the pretext of pendency of review application was a calculated move to delay the decision on merit on the sole issue “whether the Interveners are legal heirs or not”. In the face of law quoted above, an application like the one in hand in a case pending since 1998, I can express my feelings by borrowing a famous expression from Shakespeare and modify it to read “delay, thy name is advocacy”.

6.In view of the above facts and circumstances, this application is dismissed with cost of Rs.10,000/- to be deposited in favour of Sindh High Court Bar Library within two weeks.

JUDGE

SM