1. ' RAFIULLAH SULTANI, J.--- This revision petition is directed against the order of Senior Civil Judge, Mirpur, dated 2-3-2006, whereby the application for dismissal of suit by the petitioners was rejected and application by non-petitioners Nos.2 and 3 for correction and amendment in title of the suit was accepted, hence this revision.
2. ' Brief facts of the case are that non-petitioner No,1, Haji Muhammad Adrees (late), instituted a declaratory suit against the petitioners and other in the Court of District Judge, Mirpur pertaining to Plot No,16-B, measuring 2 Kanals, situated at Mirpur. Defendants filed the written statement on 6-5- 2004 and contested the suit. The learned District Judge framed issues on 22-7-2004 and heard the parties on Issue No,2, accepted the objections and returned the plain for filing the same in the Court of competent jurisdiction under Order VII, rule 10 of C.P.C. On 29-11-2004. Non-petitioners filed an appeal before High Court against the order of District Judge, Mirpur dated 29-11-2004, whereby the appeal was dismissed on 16-9-2005. During pendency of appeal in High Court, Haji Muhammad Adrees died and his legal representatives were impleaded in the High Court. After the dismissal of appeal from the High Court, non-petitioners instituted the same suit in the Court of Senior Civil Judge, Mirpur on 27-9-2005. An application for dismissal of suit has been moved by the petitioners on 26-10-2005 and another application has been moved by the non-petitioners for correction and amendment in the title of the suit. Both the applications moved by the parties were decided by the trial Court through consolidated order, dated 2-3-2006. The application moved by the petitioners for dismissal of suit was rejected whereas application for correction and amendment in title of the suit was accepted.
3. ' The learned counsel for the petitioners argued that impugned order of Senior Civil Judge, Mirpur is not according to law. The trial Court wrongly rejected the application of petitioners for dismissal of suit. He further argued that same plaint was presented before Senior Civil Judge, Mirpur without correcting the name of the Court. He further argued that Haji Muhammad Adrees- was sole plaintiff and he was not alive, when the plaint was presented before proper Court on 27-9-2005. He further argued that the suit was instituted by dead plaintiff in the Court of Senior Civil Judge, Mirpur while the application for injunction has been moved by his legal representatives, He also argued that according to C.P.C. No suit can be filed on behalf of a dead person. He further contended that after the death of sole plaintiff, (Haji Muhammad Adrees) his counsel was not legally empowered to file the suit and his Vakalatnama was no more existing in the eye of law. He also argued that same suit was not maintainable according to law. He cited case-laws in his favour 2004 SCR 467, PLD 1998 Kar. 250, PLD 1981 Kar. 277, AIR 1929 PC 103, AIR 1943 Cal. 450, AIR 1933 Mad. 454, AIR 1927 Cal.
4. 880 and PLJ 1980 SC 1997.
5. ' The learned counsel for the non-petitioners argued that legal representatives of Haji Muhammad Adrees were impleaded during pendency of the appeal in High Court. The High Court has given its decision on appeal on 16-9-2005 and legal representatives of Haji Muhammad Adrees (late) were party in that judgment, due to this reason there was no need to move fresh application according to law. He further argued that District Judge has returned the plaint to present the same before proper Court under Order VII, rule 10. He further argued that he has adopted one of the modes which have been mentioned in Order VII, rule 10 and legally he has presented the same suit before the Court of Senior Civil Judge, Mirpur. The trial Court has committed no error in accepting their application and rejecting the application of the petitioners. He argued that impugned order of the trial Court dated 2-3-2006 does not require interference. He further argued that revision has been filed against the non-petitioner. Haji Muhammad Adrees who has died; due to this reason the same is not maintainable and liable to be dismissed. He cited case-laws in his favour 1969 SCMR 257, PLD 1981 Lah. 451, PLD 1995 Pesh. 86 and PLD 1981 Kar.
6. 277.
7. ' I have heard the learned counsel for the parties and gone through the record carefully.
8. ' The plaint was instituted before District Judge, Mirpur on 3-1-2004 and the same was returned on 29-11-2004 with direction to institute in proper Court under Order VII, rule 10 of C.P.C. The same plaint was instituted before Senior Civil Judge, Mirpur on 27-9-2005. Either it was according to law or not? Here I reproduce Order VII, rule 10 of C.P.C.:-- "Return of plaint.--- (1) The plaint, shall at any stage of the suit be returned to be presented to the Court in which the suit should have been instituted.
(2) Procedure on returning plaint.--- On returning a plaint the Judge shall endorse thereon the date of its presentation and return, the name of the party presenting it, and a brief statement of the reasons for returning it."
9. Now it is clear that provisions of Order VII, rule 10 are mandatory and, when the Court has no jurisdiction to hear the suit, it is under a compulsion to return the plaint for presentation before the Court of competent jurisdiction. After a plaint is returned to plaintiff under Order VII, rule 10, he may adopt any of these courses:--
(i) He may challenge the order returning the plaint for presentation to proper Court by filing an appeal against such order or;
(ii) He may present the same plaint after its return to him to a Court having jurisdiction in the matter or;
(iii) He may amend the plaint by giving up a part of relief or by reducing the valuation so as to make it cognizable by the Court, who returned the plaint and then present the same to the same Court or amend the plaint and present it before a Court having, jurisdiction in the matter or;
(iv) He may file a fresh suit in the Court having jurisdiction in the matter.
10. ' Therefore, the objection raised by the learned counsel for the petitioners that the same plaint was presented before proper Court after returning by District Judge, Mirpur has no force because returned plaint was public document and has to be presented as such before the forum to which it is returned. Such suit can neither be amended nor withheld by the party concerned.
11. ' This view gets support from case-law titled Sardaraz Khan and others v. Amir Ullah Khan and others reported in PLD 1995 Pesh.
86. Now it is sufficient to say that no illegality is committed by the learned counsel for the plaintiff to present the same plaint before proper Court.
12. ' Another objection which was raised by the learned counsel for the petitioner that according to Civil Procedure Code no suit can be filed on behalf of a dead person or against a dead person. It is correct that no suit can be filed on behalf of a dead person, I am fully agree with this proposition of law, but in this case situation is different and this principle of law is not applicable on this case, because both the learned counsel for the parties are agree on this point that when the suit was instituted before the District Judge, Mirpur on 3-1-2004 and was returned to plaintiff to present in proper Court on 29-11-2004, Haji Muhammad Adrees plaintiff was alive. After that an appeal was filed before High Court against the order of District Judge, Mirpur on 8-12-2004, at that time Haji Muhammad Idrees was alive and he died on14-2-2005, when the proceeding was pending before High Court and the High Court decided the appeal on 16-9-2005, and Haji Muhammad Adrees was substituted by his legal representatives, which is clear from the judgment of High Court which is on file of the trial Court at page 22. There is no quarrel between the parties on this point that legal representatives of Haji Muhammad Adrees (late) were not on the record before High Court. When situation arises this type when legal representatives of deceased person were brought on record in proceeding before Superior Court would dispense with necessity of filing any fresh application for impleading them before trial Court. As it was held in case titled Mir Ghulam Abbas and others v.
13. Hashim and others:-- (1969 SCMR 257-258)
14. "0. XXII, Rr.3 & 4---Appeal against an interlocutory order pending proceeding in suit---Plaintiff appellant dying during pendency of appeal and legal representatives brought on record--- Substitution in such appeal would be substitution for purposes of suit as well---No fresh application, before trial Court, to bring legal representatives of deceased party on record of suit, necessary."
15. As it was held in1990 CLC (AJ&K) 184 "Order XXII, Rules 3 &11 & S.100---Legal representatives of a deceased respondent were brought on record in proceedings before High Court---When legal representatives of deceased respondent had already come on record before the High Court, there was no necessity of making any fresh application for impleading them before First Appellate Court on remand of appeal---First Appellate Court had thus, erred in holding the appeal before it as having abated on account of appellants' failure to make an application for bringing the legal representatives of deceased respondent within ninety days of his death---Judgment and decree of First Appellate Court was set aside and case was remanded for fresh decision on merits in accordance with law."
16. As it was held in 1990 CLC SC (AJ&K) 1924-1925:-- "----0. XXII, Rr.3 & 4---Legal representatives of deceased brought on record in Superior Court would dispense with necessity of filing an application for that purpose in suit pending before Trial Court---Where two suits had been consolidated they had become inseparable and proceedings taken in one suit would be deemed to have been taken in the other suit---Legal representatives of deceased having been impleaded in one suit would be treated to have been impleaded in the connected case also."
17. An application for injunction which has been moved by the nonpetitioners, it has been specifically mentioned in its Content No,3 that legal representatives of Haji Muhammad Adrees (late) were impleaded in proceedings before High Court and it is admitted that in the Court of Senior Civil Judge, Mirpur legal representatives were on the record, because application for injunction is part of suit, and application made by the non-petitioners in trial Court is not for the appointment of legal representatives of Haji Muhammad Adrees but it was application for the correction and amendment in title of suit. The impugned order of the trial Court does not require any interference because it is according to law. For the reasons listed above, this revision petition is hereby dismissed.