Sayed Tayyab Ali V. Sayeda Nusrat Jahan and 12 others,
Bench: Muhammad Noor Meskanzai
📝 AI Summary — Plain-Language Overview
This case involved a family dispute over inherited property. Sayeda Nusrat Jahan filed a lawsuit for partition, accounting, and injunction, claiming she was the legal daughter and heir of her late father, Sayed Mahboob Ali Naqvi, entitled to a share in his assets. The defendant, Sayed Tayyab Ali, disputed this, arguing she was only an adopted daughter and thus not entitled to inherit.
During the case, Nusrat Jahan asked the trial court to issue a preliminary order granting her possession of the property and mesne profits (compensation for use of the property). The trial court rejected that request but, with the consent of both parties' lawyers, ordered Tayyab Ali to furnish security of Rs. 10,00,000 based on estimated rental income from the property. Tayyab Ali later asked the court to reduce this amount, but that request was also denied, prompting him to challenge the order in the High Court.
The Balochistan High Court dismissed his petition for two main reasons. First, since the original order was appealable under the procedural rules, a revision petition was not the correct legal remedy. Second, because Tayyab Ali had agreed to the surety arrangement in court, he was legally estopped from later challenging its validity—he could not accept the order's terms while only disputing the amount, then try to have it thrown out entirely. The court found no illegality or unfairness in the trial court's decision and dismissed the case with costs.
This case highlights the legal principle that a party cannot "approbate and reprobate"
یہ مقدمہ ایک خاندانی تنازع سے متعلق تھا جو ورثے میں ملنے والی جائیداد پر اٹھ کھڑا ہوا تھا۔ سیدہ نصرت جہاں نے تقسیم جائیداد، حساب کتاب اور حکمِ امتناعی کے لیے دعویٰ دائر کیا، جس میں انہوں نے یہ موقف اختیار کیا کہ وہ اپنے مرحوم والد سید محبوب علی نقوی کی حقیقی بیٹی اور وارث ہیں اور اس بنا پر ان کے اثاثوں میں حصہ پانے کی حقدار ہیں۔ مدعا علیہ سید طیب علی نے اس دعوے کی تردید کی اور کہا کہ نصرت جہاں محض گود لی ہوئی بیٹی ہیں، لہٰذا وہ وراثت کی حقدار نہیں ہیں۔
مقدمے کی سماعت کے دوران نصرت جہاں نے ٹرائل کورٹ سے استدعا کی کہ ایک عبوری حکم کے ذریعے انہیں جائیداد کا قبضہ اور اس کے استعمال کے عوض معاوضہ (میسنی پرافٹس) دلوایا جائے۔ ٹرائل کورٹ نے یہ درخواست مسترد کر دی، تاہم دونوں فریقین کے وکلاء کی رضامندی سے عدالت نے طیب علی کو حکم دیا کہ وہ جائیداد سے متوقع کر
Generated from the full judgment text below — not a substitute for reading the actual opinion.
2014 C L C 92
[Balochistan]
Before Muhammad Noor Meskanzai, J
Sayed TAYAB ALI ----Petitioner
Versus
Sayeda NUSRAT JAHAN and 12 others ----Respondents
Civil Revision No.324 of 2012, decided on 26th July, 2013.
(a) Civil Procedure Code (V of 1908) ---
----O. XXXVIII, R. 1, O. XX, R. 12 & S.151 ---Qanun -e-Shahadat (10 of 1984), Art. 115 --- Partition Act (IV of 1893), S. 4 ---Suit for partition ---Application for preliminary decree for possession and mesne profits ---Furnishing of surety ---Estoppel ---Inherent powers of court --- Plaintiff filed suit for partition wherein she moved an application for preliminary decree for possession and mesne profits which was dismissed however, Trial Court directed defendant to furnish surety amount ---Defendant filed application for reduction of the same which was dismissed ---Validity ---Impugned order was passed with the consent of parties ---Defendant was estopped to challenge the validity of said order on the principle of estoppel ---Defendant while filing application for reduction of surety amount was satisfied with the nature of order but was aggrieved of the quantum of surety amount ---Defendant could not be allowed to approbate and reprobate ---No misexercise of jurisdiction nor any illegality, irregularity, perversit y or infirmity was found in the impugned order ---Revision was dismissed in circumstances.
(b) Civil Procedure Code (V of 1908) ---
----S. 115 ---Revision ---Competency ---Order passed on application under S.151, C.P.C. was appealable and revision was not competent.
Zahid Malik for Petitioner.
Nemo for Respondents.
Date of hearing: 20th June, 2013.
JUDGMENT
MUHAMMAD NOOR MESKANZAI, J. --- Instant revision petition is directed against the order dated 6 -9-2012 passed by the Senior Civil Judge -I, Quetta whereby, the application under Order XX, Rule 12, C.P.C. filed by petitioner was rejected.
2. The brief facts relevant for the disposal of instant petition are that the respondent No.1 instituted a suit for partition, rendition of accounts and permanent injunction against the petitioner and private respondents in the Court of Senior Civil Judge -I, Quetta. It was averred in the plaint that she being a real daughter/legal heir of the late Sayed Mahboob Ali Naqvi is also entitled for the share in the assets of her late father. The petitioner and private respondents by way of filing written statement contested the suit. According to the petitioner the respondent No.1 is an adopted daughter of Sayed Mahboob Ali Naqvi, therefore, she is not entitled for the relief claimed for. During the pendency of suit, respondent No.1 filed an application under Order XX, Rule 12, C.P.C. for passing a preliminary d ecree to the extent of possession and msene profit. The trial Court vide order dated 6 -9-2012 rejected the application filed by the respondent No.1, however, directed the petitioner to furnish surety in sum of Rs.10,00,000/ - in view of Order XXXVIII, Rule 1, C.P.C. The petitioner feeling aggrieved with the order filed an application under section 151, C.P.C. for reduction of the surety amount, which was rejected by the trial Court vide order dated 22 -10-2012. Hence, instant application.
3. Learned counsel for the petitioner states that the order passed by the trial Court is contrary to the norms of natural justice. It was further maintained that the lower court has failed to appreciate facts of the case in its true perspective. The impugned order is harsh and does not commensurate with the rents per annum of the disputed property. It was further stated that the relationship of respondent No.1 with the petitioner is disputed and according to the petitioner she is adopted child, besides, the application for r eduction of surety was not considered in accordance with law.
4. I have considered the contentions so put forth by the learned counsel for the petitioner and have perused the case minutely. The perusal of record reveals that the respondents despite servi ce remained absent, therefore, they were proceeded against ex parte vide order dated 21st December, 2012. The grievance of the petitioner does not appear to be plausible and justifiable for a couple of reasons. Firstly, the order impugned is an appealable as contemplated by Order XLIII, Rule 1, C.P.C. clause -(q) and since no appeal has been filed; therefore, revision is not competent. Secondly, the order dated 6th September, 2012 has been passed by the Senior Civil Judge -I, Quetta with consent of parties. F or the sake of convenience the operative portion of such order is reproduced hereinbelow: ---
"Thus, with the consent of learned counsel for the parties, it is for the interest of justice, let the defendant No.1 may be asked for furnishing security/suret y in view of Order XXXVIII, Rule 1, C.P.C. to the extent of income earned from the rented shops on monthly basis, which calculated about Rs.10,00,000/ - per year. Therefore, the defendant No.1 is directed to furnish surety of Rs.10,00,000/ - on the next date of hearing."
5. Since the petitioner has consented for the passing of impugned order, therefore, he is estopped to challenge the validity of the order on the principle of estoppel contained in Article 115 of Qanun -e-Shahadat Order, 1984. Thirdly, the pe titioner while filing application for reduction of surety felt satisfied with the nature of the order but remained aggrieved of the quantum of surety, whereas in the instant revision petition the petitioner has requested for setting aside of the impugned o rder. So, the petitioner cannot be allowed to approbate and reprobate. There is no misexercise of jurisdiction nor any illegality, irregularity, perversity or infirmity is found in the order impugned; thus, finding no merits in the petition, the same is di smissed with cost.
AG/81/Bal. Revision dismissed.