MULVI ANWARUL HAQ, J. - On 4 9.1994, Mst. Wazir Begum predecessor-in-interest of the petitioner and respondent No 2 to 5 (hereinafter to be referred to as plaintiff), filed a suit against the respondent No. 1 seeking declaration ar cancellation of a gift purported to have been made by her infavour of respondent No. 1 qua V2 share of the suit house. Pespondent No. 1 was served. She filed written statement, issues were framed on 16.5.1996. Evidence of three wtnesses was recorded. On 5.10.1998, it was reported that the plaintiff has lost balance of mind and proceedings are beirq filed before the learned District Judge. On 25.11.J 998, on the request of both the parties, the proceedings were adjured sine die till such time that the proceedings before the learned District Judge are concluded. On 29.01.2001, the plaintiff through her guardian, Qamar Riaz, filed an application, informing that Jearned District Judge has appointed Qamar Riaz as guardian of Mst. Wazir Begum vide order dated 10.6.2000. The files were requisitioned and proceedings were commenced, It appears that the examination-in-chief of the. Witnesses,, produced by the plaintiff, had been recorded and the case was being adjourned for recording cross-examination by the respondent No. 1. On 23.12.2002, it was reported that the plaintiff has died. The case was adjourned for filing Of death certificate and the list of LRs, On 25.4.2003, a copy of death certificate was produced and thereafter the case was adjourned for filing of list of L.Rs. On 6.3.2004, it was noticed that the list of L.Rs. Has been filed. A direction was issued for filing of amended plaint. The case was so being adjourned. On 23.6.2005, learned Presiding Officer was absent and the case adjourned by his office to 28.6.2005. On 28.6.2005, the following order was recorded by the- learned Trial Court:- "28.6.2005 Present: Counsel for the defendants.
Neither the plaintiff is present nor she has filed amended plaint. As the filing of amended plaint is necessary for further progress of the suit. Repeated opportunities were granted to the plaintiff for filing of amended plaint but she has failed to do so. Therefore, the suit is hereby dismissed under Order 17, Rule 3 CPC. No order as to costs. File be consigned to the record room after its completion.
Announced. 28.6.2005.
"Against the said order and the decree of dismissal, first appeal was filed by the petitioner who is plaintiffs son's daughter. This appeal was filed on 18.10.2005. The appeal was, accompanied by an application under Section 5 of Limitation Act for condonation of delay. The appeal and the application were contested by respondent No.1. Learned. ADJ., Lahore, dismissed the appeal as barred by time on09.01.2007.
2. Learned counsel for the petitioner contends, that the order passed by the learned Trial Court dismissing tha suit under Order 17, Rule 3 CPC is wholly without jurisdiction. According to him, the plaintiff was admittedly dead and the learned Civil Judge punished a deal lady and that too for no fault. Learned counsel for the respondentNo.1 has vehemently opposed the said ' Contentions.
According to him, notwithstanding the fact that in the first instance the plaintiff-lady had been rendered lunatic and then she died, the L.Rs. Including the petitioner were aware- of the pendency of the Suit and as such learned Civil Judge in fact had punished the said L.Rs. For not filing amended plaint and this was legal and permissible.- Similarly, he argues that the proceedings and the said order of the learned Trial Court being within the knowledge of said L.Rs., delay in filing of appeal could not be condoned.
3. I have gone through the copies of the records appended with this C.R. As also those filed by the learned counsel for the respondent. I have stated the details of the proceedings above after examining the same. I may state in the every beginning that although learned District Judge had declared the plaintiff to be a lunatic and had appointed a guardian who had applied for revival of the suit yet I do not find any amended plaint on record describing the said status of the plaintiff- lady and it is evident from the contents of tb,e decree-sheet where it has not been mentioned that Mst. Wazir Begum, plaintiff is suing through guardian appointed by learned District Judge. Be that as it may, coming to the, impugned order, I have already reproduced above the said, order which his rather brief. Learned Civil Judge hsis expressed that the plaintiff is not present nor she has filed a in amended plaint. Reference obviously is to the womam regarding whom it was reported as far back as on 23.11.2002 that she has died and whose death certificaLe was examined by the Court on 25.4.2003 and further who?e list of L.Rs. Has been filed on 6.3.2004. Thereafter, learnod Trial Court has observed that filing of amended plaint was necessary for further progress of the suit. Learned Civil Judge appears to be completely oblivious of the provis ions of Order 22, Rule 3 CPC. Once list of L.Rs. Was on record, it was the duty of Court to have issued notice to the said L.Rn. Both the learned counsel state that no fresh power of attorney was filed on record by any Advocate after death'of the plaintiff-lady. Even if it was not deemed proper by tho Court to issue notice to the LRs., then the suit could have been proceeded with in terms of Order 22, Rule 3(2) CPC. Thereafter, the learned Trial Court has stated that the suit is dismissed under Order 17, Rule 3(2) CPC. There is no concept of dismissal or decretal of a suit under Order 17, Rule 3 CPC. Under the said provisions of law, if conditions mentioned therein exist the Court has to proceed to decide the suit forthwith. Of- course, the suit has .Not at all been decided. Last but not the least, learned Trial Court completely forgot that the case was adjourned to 28.6.2005 only for the reasons that he was absent on the previous date and not at the request of any of the parties. Thus from what ever angle seen, the suit could not at ail hav been proceeded under Order 17,- Rule 3 CPC. The said order and the decree of dismissal of suit is, therefore, wholly without lawful authority. Learned Court of appeal has stated in para,' 3 of the impugned judgment dated 9.1.2007 that it has perused the records. I find this statement to be incorrect. What to speak of records, learned ADJ does not appear to have been even read the order that was impugned before him, otherwise, he would have never sustained it.
4. Upon a plain reading of the records, the plaintiff in. The first instance was lunatic and in the second was dead and buried long before 28.6.2005. It was for the learned Trial Court to bring on record the L.Rs. When the list had been filed. This was not done, It is a further matter of record that on 23.6.2005, neither the parties nor the learned Civil Judge was present while on 28.6.2005 only learned counsel for the defendant was present. The plea taken by the petitioner that she was not aware of the passing of the said order by the learned Civil Judge and acquired knowledge at a later point of time is absolutely plausible. Even otherwise, the manners in which the suit was dismissed by the learned Trial Court itself constitutes a- sufficient cause for condonation of delay.
5, Having thus examined the records, I do find that the impugned orders and decrees attract, mischief ofSection 115 CPC. C.R. Accordingly is allowed. Both the impugned orders and decrees are set aside. Result would be that the suit shall be deemed to be pending before the learned Trial Senior Civil Judge, Lahore, before whom the parties shall appear on 30.5.2007. On the same date, amended plaint shall be filed. If it is deemed necessary to summon the additional parties,'the same shall be done. Learned Senior Civil Judge shall re-commence the proceedings at the stage where these were at the time when the death of the plaintiff was reported.6. No orders as to costs.7.
A copy of this 'judgment to be remitted to the learned Trial Court immediately by the office.