' MIAN SAQIB NISAR, J.---On 14-7-2005, the respondent-Bank brought a suit before the Banking Court against one Ch. Muhammad Tufail Khan as a sole defendant for the recovery of "finance" availed by him. Notices were issued to the defendant through all three modes and as per report of the Process Server dated 3-8-2005, the defendant was dead. This fact was brought to the notice of the Court as per the noting of the Ahmad on the order-sheet for the next date of hearing i,e, 12-9- 2005. Upon the above, without moving any formal application. Seeking permission of the court to bring the legal representatives of the deceased defendant on the record, the respondent-Bank on 29-9-2005 filed an amended plaint arraying the appellants as the L.Rs, in place of the original defendant accordingly, notices were issued to the L.Rs, as required by the law.
2. Out of the added L.Rs, defendants Nos.1, 2, 4, 5, 6 and 7 were reported not living on the given address, while defendant No,3 was reported to have refused to accept the service. In the above circumstances, as there was no leave application on behalf of the legal representatives of the defendant, resultantly the learned Banking Court on 21-2-2006 was pleased to pass a decree in favour of the respondent-Bank and against the appellants. The appellants attaining knowledge of the decree moved an application under section 12 of the Financial Institutions (Recovery of Finances), Ordinance 2001 for setting aside the ex parte decree, which has been dismissed summarily vide impugned order dated 20-7-2006.
3. Learned counsel for the appellants contends that the suit against a sole dead person was nullity in the eyes of law and the defect could not be cured by bringing on record the legal representatives. It is further submitted that all the proceedings in such a suit and the orders passed therein including the decree dated 21-2-2006 are void and without jurisdiction and should have been set aside by the learned court below upon the application of the appellants. To support his arguments that the suit is nullity against the dead person, learned counsel has placed reliance upon the judgment reported as Rampratab 13rijmohandas and others v. Gavrishankar Kashiram AIR 1924 Born.
109.
4. Learned counsel for the respondent-Bank, however, states that at the time of the institution of the suit, the plaintiff-Bank was unaware about the death of the defendant Ch. Muhammad Tufail Khan, the moment this fact was learnt, it is the Court which directed that the suit should be amended by adding the L.Rs, of the deceased. It is thus argued that the defect if any in the institution of the suit stood cured under the order of the Court and, therefore, the principle that the act of the Court shall not cause any prejudice to a party to the litigation, shall apply in the matter; the decree thus passed in favour of the respondent-Bank cannot be set aside.
5. Heard. We have examined the record of the Banking Court and are not able to find any order through which, the respondent-Bank was either directed or permitted by the Court to add the legal representatives of the deceased defendant, therefore, the argument of the respondent's counsel, that the act of the Court should not prejudice the litigants, is irrelevant to the present case, rather the respondent has added the L.Rs, without a valid permission of the Court and such unauthorized addition of the L.Rs, may have the effect upon the valid institution of the suit against the appellants.
Anyhow, without much dilating upon the above plea, we find that the more important question involved in the case is:-- "What is the legal position and the effect of a suit which has been filed against a sole defendant, who was dead at the time of institution thereof ? Whether the defect about the institution of the suit can be cured by bringing on record the legal representatives of the sole deceased defendant?"
In answer to the first part of the question, it may be held that according to the settled law, any suit or the legal proceedings, instituted against a dead person are nullity in law and in this behalf, we are fortified by the judgment of the Honourable Supreme Court, reported as Hafiz Brothers (Pvt.)
Ltd. And others v. Messrs Pakistan Industrial Credit and Investment Corporation Ltd. 2001 SCM R 1, which declares as follows:-- "There is no cavil with the proposition that the institution of legal proceedings against dead person is of no avail to the concerned litigant. The learned High Court rightly came to the conclusion that the suit of PICIC against deceased-Mst. Inayat Begum was incompetent and, therefore, nullity in law."
6. Coming to the second part of the above question, in Roop Chand v. Sardar Khan and others AIR 1928 Lah. 359, it is held "where a suit is brought against a number of defendants, one of whom happens to be dead at the time of the suit, the Court ought not to dismiss the suit against the other defendants but should strike off the name of the former under 0. I,R.10 and proceed against the other defendants".
' In Firm Pala Ma70Tarain Mal (through Munshi Ram) v. Fauja Singh AIR 1926 Lahore 153, similar view has been expressed.
' In Nabi Bakhsh v. Malik Muhammad Akram, Settlement Commissioner and others PLD 1969 Lahore 880, a writ petition in which one out of the two respondents was dead at the time of the filing of the petitioner, it was held that "petitioner was competent to add to the cause title names of the legal heirs of deceased respondent".
7. However, the proposition, before us is not pertaining to a case where there were more defendants than one and one out of them was dead at the time of the institution of the suit, rather, if the L.Rs, of the sole dead defendant could also be brought on the record and the same suit could be continued against them. The learned counsel for the respondent has failed to cite any law to support, if it could be so done and the defect could be cured by bringing on record the L.Rs, of the deceased defendant.' However, we are guided to answer the above question by a judgment of the Lahore High Court reported as Malik Bashir Ahmad Khan and another v. Qasim Ali and 12 others PLD 2003 Lahore 615 in which, the above question came under consideration and one of us (Mian Saqib Nisar), came to the conclusion in the following words:-- "I have heard the learned counsel for the parties. Obviously, if a suit has been filed against the only defendant, who was dead at the time of the institution, such suit shall be still born, nonexistent, and a nullity in the eyes of law, therefore, it could not be merely defective and thus, could not be revived by impleading the legal heirs of the deceased defendants. The plaintiff, in such a situation, subject to law, may have the option to bring a fresh suit against the heirs on the basis of the same cause of action. But this rule shall not be applicable in a case, where the suit has been instituted against more than one defendants, and one of them was dead at the relevant time. The suit shall not be nullity in totality, but would be validly instituted against the living defendants, however, it would be defective qua the deceased party, which defect shall be curable by the plaintiff, bringing on record the heirs of the deceased defendant."
8. Thus, in our view, in the cases pertaining to a sole defendant, who was dead at the time of institution of the suit, the law has been correctly laid down in the latest judgment of the Lahore High Court quoted above and we are constrained to hold that the suit filed against a sole defendant, who at the time of the institution of the suit was dead, was non-existent, still born and nullity. It was not merely a defect, which could be removed/cured by impleading the legal heirs of the deceased defendant, rather such suit could not be further proceeded and has to be dismissed by the court as having never been validly instituted. In the given situation, the only option left for the plaintiff of the case is to institute a fresh suit against the legal heirs/representatives of the deceased defendant if the cause of action survives against them and they, are the legal representatives of the deceased within the meaning of section 2(11) of C.P.C., obviously subject to all the limitations and defences available to the L.Rs, under the law.
9. As such a suit is non-existent and still born suit, even if the legal heirs have been impleaded under the order of the Court, such order or any subsequent order passed even after the addition of the legal heirs shall be void and without jurisdiction, this shall include the decree as well, therefore, when the appellants moved an application under section 12 of the Financial Institution (Recovery of Finances) Ordinance, 2001, bringing the above facts to the notice of the Court, it was the duty of the Court to have set aside the judgment and decree as being void, rather than disallowing the application of the appellant. Resultantly, the impugned order passed by the Banking Court is not legally tenable, which is hereby set .Aside with the consequences that the application of the appellants under section 12 of the Financial Institution (Recovery of Finances) Ordinance 2001, is accepted and the suit of the respondent-bank is dismissed.