This Constitutional petition has been filed against the order, dated 21.11.2001 passed by the IIIrd Additional District Judge, Karachi (South) in F.R.A. No. 1071 of 2001. From perusal of the memo. Of the petition and the impugned order, it transpires that the IIIrd Additional District Judge, Karachi (South) had dismissed the F.R.A. Filed by Dildar Hussain, father of the petitioners on the ground that his heirs were not brought on record. The appeal was originally filed by Dildar Hussain and during the pendency of the appeal he died but his legal representatives were not brought on record and, therefore, the IIIrd Additional District Judge, Karachi (South) dismissed the appeal when an application under Order XXIII, Rule 3, C.P.C. Was made by the heirs of deceased Dildar Hussain for bringing them on record.
2. The IIIrd Additional District Judge, Karachi (South) in rejecting the application Under Order XXII, .Rule 3 .'and dismissing the appeal completely lost sight of the fact :that after amendment in Order XXII, C.P.C. No suit or appeal .Or any other proceedings shall abate merely on the ground that the legal representatives of a party to the suit/appeal/proceedings were not brought on record. Mr. Masood Khan Ghori had referred us to the case of Rashida Khatoon v. Syed Hamid Ali Naqvi (1986 SCM R 256). The facts of the cited case were absolutely different inasmuch as a rent application was filed against a party which did not exist and had expired before filing of the ejectment application.. The Supreme Court held that an ejectment petition against a dead person was a nullity and it could not be revived by bringing on record the heirs of such deceased party. In the present case, the appellant was very much alive when he had filed the appeal in view of the provisions of Section 21 of the Sindh Rented Premises Ordinance, 1979 but had died during the pendency of the appeal and on account of his death and failure of the legal heirs to get themselves impleaded the appeal and could neither be dismissed- nor would abate.
3. The order of the IIIrd Additional District Judge, Karadhi (South) is absolutely contrary to the provisions of law and in the absence of application of .Mind such an order cannot be sustained. Accordingly, this Constitutional Petition after being admitted to regular hearing is allowed. The impugned order is set aside and the matter is remanded to the Trial Court for decision on merit. Both the parties are directed to appear before the Trial Court/IIIrd Additional District Judge, Karachi (South) on 9.2:2002 and the Trial Court is directed to dispose of the appeal within a period of eight (8) weeks from the said date. No intimation-notices will be issued by the Trial Court for summoning.The parties.