KARACHI, Jan 14: The Sindh High Court has declared a suit ab initio and rejected its plaint through which the plaintiff had sought cancellation of the deed of appointment of the trustees of the Islamic Education Trust.

The judgment was delivered by Justice Shabbir Ahmed of the SHC in suit No 333/1992 of Begum Hafeezunnisa Qureshi (Plaintiff) Vs Shaikh Mohammed (Defendant).

Through CMA No 7168/2001, one of the defendants, represented by Khalid Javed Khan, advocate, had sought rejection of the plaint in terms of Order 7 Rule 11 of CPC on the grounds, inter alia, that suit seeking relief without the consent of the advocate-general (AG) in terms of section 92 of CPC was barred. The suit was also barred Under Order 2 Rule 2 of CPC.

The plaintiffs, represented by Aziz Malik, advocate, had filed the suit for cancellation, permanent injunction and damages with following reliefs:-

i) Cancellation of the deed of appointment of trustees dated 8. 10. 1990 and registered at No 362 with sub-registrar T. Division III, Karachi, and directing the defendants to surrender the same in court for cancellation and to cancel the same and to direct the recording of cancellation in the record of sub- registrar.

ii) A permanent injunction restraining the defendants from representing themselves to be the trustees of the Islamic Education Trust and making any claim or recoveries or entering into transaction, contract or dealings on the basis of such representation.

iii) Compensation and or damages in the sum of Rs5,000,000 to be paid by the defendants to the plaintiffs as trustees of the Trust.

iv) Rs3,192,000 or such sum as the court might decide and pay for wrongful recovery and gain made by the defendants.

v) Interest/markup at the rate of 20 per cent per annum from the date of suit till payment.

(1) Abdul Rahman, (2) Mohammed Husain, (3) Arif Bhai Olla, (4) Abdul Hameed Sufi and (5) Ms Mumtaz formed a trust by registered deed on 4. 5. 1958, known as the “Islamic Education Trust.”

The case as put forth by the plaintiff was that the defendant No 1 had falsely represented himself as son of the late A. M. Qureshi to take wrongful advantage of the name, standing, status, and reputation of the late A. M. Qureshi. With ulterior motives and to make wrongful gain, it was alleged that on the death of A. M. Qureshi, he got fraudulent deed of appointment of new trustees, registered on 8. 10. 1990, wherein the defendant Nos 1 and 2 fraudulently represented that they were trustees and wrongfully purported to appoint the defendant Nos 3 to 5 as trustees.

The grounds raised and conversed before Justice Ahmed by the defendants’ counsel precisely was that the suit as framed was barred for want of necessary permission U/S 92 of CPC.

Rule 11 of Order 7 CPC enjoins upon the court to reject the plaint under the circumstances which had been enumerated therein.

Justice Ahmed observed that the principles involved were twofold: in the first place, it contemplated that a stillborn suit should be properly buried at its inception, secondly, it gave the plaintiff a chance to retrace his steps at the earliest possible, so that, if permissible under law, he might find a properly-constituted suit.

He noted that it appeared from the language of Rule 11 of Order 7 that it required that an incompetent suit should be laid to rest at the earliest moment so that no further time was wasted over what had been bound to collapse as not being permitted by law.

He also made a distinction between public and private trusts and held that from bare reading of the aims and objectives of the Trust, it could not be said to be a private trust as the beneficiaries were not specific individuals but the general public or class thereof.

He therefore held that the “Islamic Education Trust” was a public trust for public purposes.

In order to appreciate the legal points involved, he reproduced section 92 of CPC which contemplated for filing of suit, in the nature envisaged by section 92 (1) to obtain a decree for any one or more of the reliefs enumerated in clauses (a) to (h) by the AG or two or more persons having interest in the Trust with the consent in writing of the AG.

He also dealt with the objection raised by the plaintiffs’ counsel about the maintainability of the application.