1. GHULAM MUSTAFA MUGHAL, J.---The above captioned appeal is filed against the judgment and order of the learned District Judge, Muzaffarabad, passed on 30-11-2004, whereby a warrant for execution of decree dated 30-11-1987 has been issued.
2. Precise facts of the case are that a suit for specific performance of contract was initially filed before this Court on 20-9-1972 by respondent No,1, herein, against the predecessor-in-interest of appellants, herein. The case was subsequently transferred to the learned District Judge, Muzaffarabad, on 2-7-1985 because the pecuniary jurisdiction of the District Judge stood raised.
3. After necessary proceedings the learned District Judge decreed the suit in favour of Kh.
4. Muhammad Ishaq, plaintiff/ respondent on 30-11-1987. This decree was challenged by Ghazanfar Abdullah Khan s/o Abdullah Khan, on the ground that he was minor at the time of passing the decree and remained as such till the decision of the case, therefore, the judgment against him is a nullity in the eye of law. After necessary proceedings, the learned District Judge, Muzaffarabad, dismissed his suit on 5-9-2003. An appeal was filed before this Court against the said judgment on 2-12-2003, which was also dismissed on 28-10-2004. The execution proceedings which were kept in abeyance due to filing of the subsequent suit were revived and a warrant of execution was issued on 30-11-2004 against the appellants, herein. It may be stated that during pendency of the execution proceedings and subsequent suit, Kh. Muhammad Ishaq, plaintiff, died on 10-5-1994. An application for bringing his legal heirs was filed on 30-7-1994. This application was allowed by the learned Executing Court in view of agreement of the learned Advocates for the parties vide order dated 30-11-2004. The execution order dated 30-11-2004, has been challenged by the appellants, herein, and they have not impleaded the legal heirs of Kh. Muhammad Ishaq rather impleaded the deceased in line of the respondents. An application was filed by the appellants, herein, for substitution of the legal heirs of Kh. Muhammad Ishaq. It is disclosed in the application that Kh.
5. Muhammad Ishaq, has died during pendency of the proceedings and is survived by the legal heirs mentioned therein. It is requested that name of the deceased-respondent may be deleted and his legal heirs/representatives may be substituted as respondents in the appeal. The legal heirs of Kh.
6. Muhammad Ishaq, have resisted this application by filing objections in which it is stated that the appeal has been filed against a dead person, therefore, is a nullity in the eye of law, and legal heirs of Kh. Muhammad Ishaq, cannot be impleaded as such. It is further stated by them that a suit was filed by appellant No,5, herein, and the same was dismissed by the learned District Judge on 5-9- 2003. The said appellant filed an appeal against the aforesaid judgment which was also dismissed by this Court on 28-10-2004. In the appeal before this Court legal heirs of Kh.Muhammad Ishaq were impleaded in line of respondents but despite that appellants have filed the instant appeal against a dead person in order to prolong and frustrate the execution.
7. Arguing on behalf of the appellants, Kh. Attaullah Chak and Kh. Muhammad Naseem, the learned Advocates contended that the legal heirs of Kh. Muhammad Ishaq, deceased-respondent, herein, were impleaded in the trial Court and instead of impleading them, deceased/respondent, has been entered in the memo. Of the appeal which is a clerical mistake and this Court is vested with inherent powers to correct the dine by substituting the legal representatives in place of the deceased-respondent, herein. They also argued that the powers available to this Court under Order I rule 10 and Order XLI, rule 20, C.P.C. Could be exercised for the aforesaid purpose because the same is in the interest of justice. The learned Advocates further submitted that question of impleadment of legal representatives of Kh. Muhammad Ishaq, deceased, is not directly involved in this case rather the case in hand is of mis-description of a party and correction whereof can be made at any time. In support of their submissions, the learned Advocates placed reliance on the following cases:-
(I) Khan Muhammad Khan and 19 others v. Saif Ali and 22 others 1999 YLR 550
(II) Hazrat Khan v. Amanullah Khan and others 1996 SCMR 1217
(III) Ahmad Zaman Khan, Barrister v. Govt. Of Punjab through Collector, Multan and 2 others 1993 CLC 1327
(IV) Hassan Amir and others v. Collector and others 1994 MLD 452 Mr. Muhammad Yaqoob Khan Mughal, the learned counsel representing the legal heirs of respondent No,1, while controverting the arguments submitted that the appeal is filed against a dead person which is a nullity in the eye of law and the Court cannot pass any order whatsoever in a dead cause. The learned counsel further contended that it was in the knowledge of the appellants that the legal heirs of Kh. Muhammad Ishaq, have been impleaded during the proceedings in the subordinate Court and they were also impleaded by them in the appeal before this Court in an earlier round of litigation but despite that they filed instant appeal against a dead person, hence, no allowance can be given to them for their negligence. He further argued that in case of substitution/impleading of the legal heirs they would be deemed to have been made a party on the date of the order of the Court, and in that case the appeal would be deemed to have been instituted on the said date. He placed reliance on a case reported as Muhammad Ibrahim v.
8. Custodian Evacuee Property and 10 others 1999 YLR 2336.
9. In Khan Muhammad Khan's case, referred to hereinabove it was observed that where a defendant died during pendency of a suit; his legal representatives could be brought on the record under Order XXII, rule 4, C.P.C. But where a suit is filed against a sole dead person, his legal representatives could not be substituted under Order I rule 10 of the Code of Civil Procedure.
10. I have heard the learned Advocates representing the parties and perused the record of the case.
11. A perusal of the file of the trial Court reveals that Kh.Muhammad Ishaq, deceased-respondent against whom the instant appeal has been directed died on 10-5-1994. An application for impleading his legal heirs was made on 30-7-1994. The application remained pending for one reason or the other, however, on 14-10-2003 the same was allowed by the learned trial Court in view of the agreement of the learned Advocates for the parties. Resultantly, the legal representatives of Kh. Muhammad Ishaq were impleaded. A perusal of the copy of the judgment of this Court appended with the proceedings of the trial Court titled Ghazanfar Abdullah Khan v.
12. Badar-ul-Salam and others [Civil Appeal No,126 of 2003, instituted on 2-12-2003] reveals that the legal heirs were impleaded in that appeal which was dismissed by this Court on 28-10-2004, thus, it stood established that present appellants were fully aware that the legal representatives of Kh.
13. Muhammad Ishaq have already been impleaded because they themselves arrayed them in the appeal mentioned above.
14. The question, therefore, which emerges for resolution is that as to whether the present appeal could proceed by impleading or substituting the legal heirs of Kh. Muhammad Ishaq?
15. The consensus is that where an appeal or a suit is filed against a sole dead person then neither Order XXII, rule 4 of C.P.C. Is applicable nor Order I, rule 10 of C.P.C. Is attracted because such an institution is a nullity in the eye of law and could not be revived by impleading the legal heirs of the deceased-defendant. Malik Bashir Ahmed Khan and another v. Qasim Ali and 12 others (PLD 2003 Lah. 615), and Khan Muhammad Khan's case relied upon by the appellants approve the same view.
16. In Muhammad Ibrahim's case, referred to hereinabove, facts were that an application for substituting the legal representative of defendant therein was made who was dead before institution of the petition for leave to appeal. The apex Court rejected the application on the ground that the legal representative could only be impleaded of an appellant or a respondent. As the defendant therein was neither appellant nor respondent, therefore, the application was not maintainable. The apex Court further pleased to observe that the respondent to an appeal is a living person and a dead person cannot be treated as respondent. In the estimation of their lordships, if a dead person is impleaded as a respondent it may be possible to implead his legal representative but that will be a case of addition of a new party and not of substitution. Relevant observation of the apex Court is recorded in para No,4 which is reproduced as under:- "4. In our view the application moved on behalf of Muhammad Ibrahim is misconceived. The application to bring on record the legal representatives is only maintainable in respect of an appellant or a respondent but Ghulam Rasool was neither an appellant nor a respondent in this Court because admittedly he had passed away much before the institution of the petition for leave to appeal in this Court which means that in the appeal a dead person was impleaded as a respondent. A respondent is a living person and a dead person cannot be treated as a respondent.
17. Therefore, the application for substitution of the legal representatives was liable to be dismissed in any case, irrespective of the fact whether the application was barred by time or not If a dead person is impleaded as a respondent it may be possible to implead his legal representatives but that will be a case of addition of new party and not of substitution. Since the application for substitution was not maintainable, this appeal also cannot bear any fruit."
18. Judging the present controversy in light of the aforementioned statement of law I am of the view that the present case is not covered by Order I, rule 10 or Order XXII, rule 3 or 4 of C.P.C. Because appeal has been filed against the dead person and his legal representatives, as stated above, were already on the record and the appellants have not impleaded them in line of the respondents although they did implead them in an appeal before this Court in an earlier round of litigation. Now they cannot be impleaded in the garb of application for substitution that too, after the prescribed period of limitation.
19. In a case titled Abdul Hamid Khan v. Muhammad Zameer Khan and 2 others (1990 MLD 1617) it was held that authority of the Court to add a party under Order I, C.P.C. Is subject to the limitation provided under Section 22 of the Limitation Act which postulates that in case of addition of a party the proceedings against such a party shall be deemed to have begun only on the service of summon on him. If this Court, for the sake of interest of justice implead the legal heirs even then the proceedings of the appeal would be deemed to have been commenced upon the service on new added defendant and in that eventuality appeal will become time barred, hence, ultimately no purpose would be served.
20. The relevant observation of the apex Court is recorded at page 1625 of the report in the following words:-- It is not open to the respondent to raise the objection of non-joinder at this stage because this is the clear intent of law as contained in rule 13 of Order I. But the intent of this provision is not that the Court should continue with the hearing of a case even when it comes to its notice that there is misjoinder or non-joinder of parties. It is provided in rule 9 of Order I that no suit shall be defeated by reason of misjoinder or non-joinder of parties and the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it. But there may be a situation in which a Court becomes conscious that a person who ought to have been joined as a party and in whose absence no effective decree can be passed, commonly known in law as a necessary party, the Court cannot proceed with it. In such a situation the Court has been authorised under sub-rule (2) of Rule 10, that it may, at any stage order that the name of any such person may be added as a party: This power however is limited as it is laid down that, subject to section 22 of the Limitation Act, the proceedings against such person shall be deemed to have begun only on the service of summons on him. The question then arises: would there be any useful purpose served by impleading a party if the period prescribed by law to file a suit against him has run out? Order I, rule 3, C.P.C. Provides that all persons against whom any right to relief is alleged to exist should be impleaded as defendants. It is elementary that no relief can be granted against a person who has not been impleaded as a defendant. If relief can be claimed against two persons jointly but only one is impleaded as party it would debar the Court from granting relief against not only the person who is not a party but also against the other who is present before the Court. Thus if a necessary party is not impleaded within time the suit has to fail .
21. The appellants, herein, have moved the application after statutory period of limitation. The order under appeal was passed on 30-11-2004, and the appeal has been filed on 13-1-2005. The instant application has been moved before this Court on 24-3-2005, therefore, negligence of the appellants cannot be condoned because a vested right stood accrued in favour of the other party which cannot be snatched. In a case titled Province of East Pakistan v. Major Nawab Khawaja Hasan Askry (PLD 1971 SC 82), it was concluded that an appeal against dead party can be amended by bringing his legal representative on record but when the appellants were negligent in seeking correction of the cause for a pretty long period and no satisfactory explanation was furnished for condonation of delay, the addition could not be made. The same view has been approved by the apex Court in cases titled Muhammad Ashraf and 8 others v. Azad Govt. Of the State of Jammu and Kashmir and 13 others (PLD 1985 SC(AJK)102) and Sakhi Muhammad and 10 others v. Noor Muhammad and 28 others (PLD 1988 SC(AJK) 156).
22. In the aforesaid cases, some necessary parties were not impleaded by the appellants in their respective appeals before the apex Court. After statutory period they moved applications for impleading them in line of respondents on the strength of Order XLI, rule 20. The apex Court of Azad Jammu and Kashmir rejected the application on the ground that the appellants were negligent in pursuing their cause. The same view is reiterated in Sakhi Muhammad's case, referred to hereinabove. It will be useful to reproduce para. No,7 of the said report which is as under:- "7. Order XLI, rule 20, C.P.C. Postulates that where it appears to the Court at the hearing that any person who was a party to the suit in the Court from whose decree the appeal is preferred, but has not been made a party to the appeal and he is interested in the result of appeal, the Court is empowered to adjourn the hearing and to issue direction that such person may be made a respondent. These provisions confer discretion on the appellate Court to direct for inclusion of the name of the person who was party to the suit and was interested in the result of appeal, but was left out in the appeal, to be made a respondent, so that the point at issue was decided conclusively. The rule was introduced for convenience of the parties and facility of the decision. The discretion conferred under this rule is to be exercised very sparingly only in fit cases where the negligence or omission to implead the necessary party, is bona fide supported by sufficient reason.
23. Otherwise on lapse of period of limitation, impleading necessary party is not allowed. Identical proposition was raised before this Court in Muhammad Ashraf and others v. Azad Govt. Of the State of Jammu and Kashmir and others (PLD 1985 SC(AJK) 102). In that case some of the claimants were not arrayed as respondents. An application was moved to implead them as respondents, after lapse of considerable time. The learned Chief Justice, who recorded the verdict of the Court, was not satisfied with the conduct of the appellant as such the prayer was disallowed and in absence of necessary and interested parties, the appeal was dismissed. In the present case it is noticed that apart from Mehboob and Hanif, legal heirs of Sattar Muhammad, are not impleaded in the petition. It was unknown as to whether Sattar Muhammad died before filing the petition or thereafter. The fact remains that Sattar Muhammad and on his death, his legal heirs, are not arrayed as respondents. The application has been moved after a lapse of period of one year three months and seventeen days. The negligence to implead them is explained as inadvertence by the typist. There is no prayer for condonation of delay. Moreover, there is no request to implead Khurshid, Shahnaz Akhtar, Niaz Begum, Zubaida Begum, Zaida Khatoon, Zaiba Khatoon and Mst.
24. Catima descendants of Bagga. They are not sought to be made respondent despite the fact that they were parties in the suit and appeal. Even if for the arguments sake the application is allowed to include the names of Mehboob, Hanif and descendants of Sattar Muhammad as respondents, the appeal cannot continue unless Khurshid and others, described above, are made respondents.
25. The interest of appellants and those who are not impleaded is indivisible. They cannot be impleaded now, as limitation has already expired. There is no prayer to implead them. Therefore, the impugned order has become final to that extent."
26. It may be stated that the name of Kh. Muhammad Ishaq, deceased-respondent, herein, stood deleted by impleading his legal heirs before the trial Court, therefore, he was neither proper nor a necessary party for the purpose of this appeal. This appeal has been filed without impleading the contesting respondents, which is not maintainable in the eye of law. In a case titled Azad Govt. Of the State of Jammu and Kashmir v. Sarfraz Alam and others (1997 MLD 383), respondents, therein, were deleted by making the application and appeal was declared not valid without there being no respondent. At page 327 of the report it has been observed as under:- "Azad Government of the State of Jammu and Kashmir acting through the Chief Secretary filed a petition for leave to appeal from that part of the judgment of the High Court by which some provisions of the Contempt of Court Act had been declared unconstitutional. In the petition for leave to appeal two respondents were impleaded namely:-
(i) Sarfraz Alam, Assistant Town Planner, Mirpur Development Authority, and
(ii) Robkar-e-Adalat through Honourable Judge of Full Bench of Azad Jammu and Kashmir High Court, Muzaffarabad.
27. After filing the petition firstly the name of Sarfraz Alam was struck off and then another application was moved wherein it was prayed that respondent No, 2 may be allowed to be deleted.
28. This application has been accepted earlier today by a separate order.
29. The name of Sarfraz Alam had already been struck off. Now with the deletion of respondent No,2 there remains no respondent in the petition for leave to appeal. In view of the vacuum thus created, the case cannot proceed further. When this was pointed out to the learned counsel for the Government, he could not cite any provision of law or practice of the Court under which an appeal can be heard without there being a respondent."
30. The upshot of the above discussion is that finding no force in this appeal it is hereby dismissed.