' SHEIKH HAKIM ALI, J.---To pre-empt an oral sale evidenced through Mutation No,743 attested on 21-12-1998, in respect of agricultural land, measuring 76 Kanals, 4 Marlas, situated in Chak No,128/J.B. Tehsil Chiniot, District Jhang, Mst. Shah Begum and others wherein were the vendors, while Malik Bashir Ahmed Khan, Muhammad Saeed (petitioners) and Muhammad Tawakkal (predecessor in interest of respondents Nos. 2 to 11) were the vendees, a suit for possession on the basis of superior right of pre-emption was filed by. Qasim Ali, respondent No,1, in the year 1999.
Written statement was submitted by present petitioners-vendees-defendants Nos. 1 and 2 on 10-6- 1999 and issues were framed. Thereafter, during the pendency of the aforementioned suit, an application under Order I, rule 10 read with section 151 of the C.P.C. Was filed by present petitioners- defendants on 10-11-1999 for striking out the name of Muhammad Tawakkal, one of the vendees (defendant) who had expired before the institution of the suit on 7-8-1997, but was impleaded as defendant No,3 in the above noted suit. It was further explained in the application that Mutation of sale was entered on 6-3-1995 while statements of vendors were recorded by revenue officer on 8- 3-1995 but Mutation No,743 of the disputed sale was sanctioned on 21-12-1998. The application was contested by Qasim Ali, plaintiff. It is interesting to note that plaintiff-respondent had not prayed for deletion of the name of deceased/defendant No,3 Muhammad Tawakkal, and the impleadment of his legal representatives in his stead in the plaint. Learned Civil Judge, First Class, Chiniot, however, permitted the plaintiff to blot out the name of dead defendant by impleading the legal heirs of aforementioned Muhammad Tawakkal, deceased on 23-1-2001, which caused grievance to the petitioners, who filed a civil revision, which was dismissed by learned Additional District Judge, Chiniot, on 9-8-2002. Against the aforementioned order, Writ Petition No,18374 of 2002 was filed in the High Court, which had met with the same fate from a learned Single Judge in chambers of the Lahore High Court, Lahore. Hence this Civil Petition, in which notice was issued to respondents on 19-1-2007.
2. Learned counsel for the petitioners, submits that the suit for preemption filed by Qasim Ali, respondent No,1, was incompetent as it was filed against one of the dead vendees (defendant No,3). The plaintiff had asserted in para. No,5 of his plaint that he had performed Talb-i-Ishhad by visiting the aforementioned defendant No,3 at his house of Muhammad Pura, Faisalabad on 5-1- 1999, in the presence of two witnesses and he had also transmitted a notice to Muhammad Tawakkal on 6-1-1999. The same assertion is also found incorporated in the above indicated notice Talb-i-Ishhad, adderessed to defendant No,3, Muhammad Tawakkal although he had expired on 7- 8-1997 and Mutation of his inheritance No,816 was entered on 4-1-1999 by Patwari in favour of Muhammad Younis, Muhammad Zahir etc. The legal representatives of Muhammad Tawakkal, which was attested by revenue officer on 30-1-1999. As per learned counsel, in these circumstances, the grant of permission to bring on record the legal representatives of deceased vendee-defendant was illegal and unlawful, as an incompetent suit was allowed to proceed by the learned courts below. Further submits that the sale transaction being indivisible, the non- impleadment of one of the vendees, whose share and amount was not specified was to result into dismissal of the suit, as the suit could not continue and proceed against the remaining vendees- defendants also, it being a joint sale. For the incompetency and nullity of such suit, he has referred to the cases of (i) Capt. Shahid Saleem Lone and others v. Ata-ur-Rehman and others 1985 CLC 2555, (ii) Hafiz Brothers (Pvt.) Ltd. And others v. Messrs Pakistan Industrial Credit and Investment Corporation Ltd. 2001 SCM R 1 to support his contentions.
3. Conversely, the learned counsel for respondent No,1 has supported the orders of learned Courts below by submitting that it was still to be decided as to whether the sale in question was indivisible, and as to what was the effect of non-impleadment of L.Rs, of Muhammad Tawakkal, deceased vendee-defendant No.3 in the suit. Continuing with his arguments, learned counsel states that although inheritance Mutation No,816 dated 30-14999 was sanctioned in favour of legal heirs of Muhammad Tawakkal, deceased on 30-1-1999 yet date of death of aforesaid deceased was shown as 7-8-1997 in that mutation which could not possibly occur as Mutation No,743 of the disputed sale, was attested on 21-12-1998. According to him, the suit was not a nullity in the eye of law as the legal representatives of a dead vendee defendant although expired before institution of the suit could be impleaded in the suit.
4. We have examined the contentions of both the learned counsel and have perused the record with their able assistance. It is an admitted fact that at the time of filing of the suit Muhammad Tawakkal, one of the vendees-defendant No,3 had already left this earthly world to eternal abode, and the suit was filed against that dead person. According to prevalent law of pre-emption, as enacted with the nomenclature of Punjab Pre-emption Act, 1991, a pre-emptor is bound to send a notice of Talb-i-Ishhad in writing, attested by two truthful witnesses, to the vendees confirming his intention to exercise the right of pre-emption. Plaintiff himself has produced the aforementioned notice transmitted to Muhammad Tawakkal-vendee-defendant which is dated 6th of January, 1999 while the mutation of inheritance No,816 of Muhammad Tawakkal deceased was entered on 4-1-1999 which was sanctioned on 30-1-1999. In para. No,5 of the plaint, we have found the assertive sentences that the plaintiff had visited the house of vendee Muhammad Tawakkal on 5- 1-1999 and had requested him to alienate the land purchased by him in his favour. The same story as Visitant for craving the transfer of sold out land is also found mentioned in the notice of Talb-i- Ishhad. All these are admitted, uncontroverted facts, as these are alleged, asserted and laid by plaintiff himself in the notice as well as in plaint itself. From the above facts, it is unquestionably evident that Muhammad Tawakkal was not living in this World when plaintiff had allegedly visited his house on 5-1-1999 and had besought for transfer of the land in dispute to him, as asserted in the notice and in the plaint. To elaborate this factual aspect, one thing has become transparent and is floating on the surface of the record that assertion in the notice as well as in the plaint was based on wrong, incorrect and mis-stated facts. Muhammad Tawakkal had expired before the alleged visit of plaintiff on 5-1-1999 and at the time of the issuance of notice of Talb-i-Ishhad.
Admittedly, no notice was issued to the legal representatives of Muhammad Tawakkal deceased and the story A of oral performance of Talb-i-Ishhad was a cooked up and a complete lie, having no legs to stand on the face of it. Consequently, there was no performance of Talb-i-Ishhad as against the legal representatives of Muhammad Tawakkal deceased, who had inherited the property well before the issuance of notice of Talb-i-Ishhad and the filing of the preemption suit. In such a case, a plaintiff who was coming to the Court with begrimed hands and was also failing to apply and to make prayer for deletion and substitution of dead defendant by his legal representatives, could not be granted an unsought for relief by the learned Civil Judge, particularly in the pre-emption suit. Although Order I, Rule 10 of the C.P.C. Permits the court to order the deletion of a party and substitution but that exercise of discretion in the present case was uncalled for due to the above noted peculiar facts and circumstances of the present case.
5. A suit for pre-emption has got its own salient different features which require some preceding steps and actions to be fulfilled and taken by a pre-emptor to Claim the pre-emption. The performance of Talb-i-Mawasthibat and Talb-i-Ishhad are the most important essential requirements to be completed before a suit for pre-emption is instituted B in a Court of law. In the present suit Muhammad Tawakkal, vendee had expired before the filing of the suit as well as before the alleged performance of Talb-i-Ishhad. A suit against a dead person is a nullity in the eye of law upon the strength of provisions of section 27 read with Order I Rules 3, 9 and 10 of the C.P.C.
Because it can be filed against a living, natural or legal person only vide PLD 1971 Karachi 625 (Secretary, B & R, Government of West Pakistan and 4 others v. Fazal Ali Khan). It must be kept in view that a suit cannot be filed against all dead person who had expired before the institution of the suit. It is not the case of a defendant dying during pendency of the suit wherein striking out of the name of such defendant and substitution of legal representatives of such deceased defendant can be allowed. Muhammad Tawakkal was a necessary party to the sale transaction, therefore, his legal representatives, after his death, were necessary party to the suit against whom the suit was not filed and no notice of Talb-i-Ishhad was issued to them and served upon them within the prescribed period of limitation i,e, from the date of knowledge of the sale transaction. In such a case, the impleadment of L.Rs, could not be allowed by the learned Courts below.
6. It is worth mentioning that after having held that the suit was nullity in the eye of law against the dead vendee-defendant, Courts have allowed the legal representatives to be brought on the record, treating it a curable defect but oblivious of the fact that it was a suit for pre-emption, having its own distinguishable features qua the other suits.
7. In the case of Capt. Shahid Saleem Lone, etc. v. Ata-urRehman, etc. 1985 CLC 2555 it was clearly held that a suit against the dead person could not proceed while noting the distinguishing features of a judgment and suit against a dead person. There is another judgment of the case of Mehr Muhammad v. Deputy Settlement Commissioner and others 1979 SCM R 182 in which it was held that suit/petition against a dead person was incompetent and was a nullity in law. Same view was taken in the case of Mst. Dani and 5 othes v. Deputy Settlement Commissioner (Lands) Vehari and others 1990 SCM R 553 in which constitutional petition against dead person was dismissed. Both these cases although are pertaining to writ petitions yet provision of C.P.C. Were applicable to the constitutional petitions as well as to the suit also with the same force vide PLD 1970 SC 1 (Hussain Bakhsh v. Settlement Commissioner, Rawalpindi and others). In the case of Hafiz Brothers (Pvt.) Ltd.
And others v. Messrs Pakistan Industrial Credit and Investment Corporation Ltd. (2001 SCM R 1) it was held that suit against dead person was incompetent.
8. Distinction between a suit for pre-emption filed against a dead person and a defendant dying during pendency of the suit must be made while exercising jurisdiction to implead the legal representatives of such a defendant. In such a suit, wherein a necessary party/defendant was dead before filing of the suit, in such an event that suit cannot be held competent as against that dead person, while a defendant dying during pendency of the suit can be substituted through legal representatives under Order XXII of the C.P.C. Resultant, the suit against Muhammad Tawakkal, the deceased defendant would be a nullity and his legal representatives could not be brought on record. The suit, however, can proceed as against the remaining two vendees defendants (the present petitioners) under Order I, Rule 9 of the C.P.C. If no opposition is put up by these defendants.
In case any plea or objection is raised, it shall be decided by the learned trial Court in accordance with the provision of law.
9. So far the argument of petitioners' learned counsel regarding jointness and indivisibility of sale in dispute, etc. Is concerned, that would be addressed by the concerned learned court, when it is properly asserted before that Court.
10. Accordingly we convert this petition into appeal, allow the appeal, set aside the impugned order of the Lahore High Court, Lahore, by which the order dated 23-1-2001 passed by learned Civil Judge, First Class, Chiniot, and that of order dated 9-8-2002 of learned Additional District Judge, was upheld and maintained by holding that the learned Civil Judge could not order the substitution of legal representatives of Muhammad Tawakkal, a dead vendee-defendant in the pre-emption suit, as the suit was a nullity and incompetent against such defendant as detailed above.