1. ' S. M. A. 382/80 ' This is an application under Order I, rule 10 read with Order XXII, rules 3 and 4, C. P. C.
2. ' This application arises out of the following circumstances ' This petition seeks to challenge the legality of the proceedings under sections 10 and 11 of the Displaced Persons (Land Settlement) Act, 1958 taken by the respondent and the order dated 14-3- 1978 passed therein. The petition was filed by Hakim Ali and Faizuddin through their General Attorney Abdul Ghafoor Salimi. Upon an objection raised about the right of Mr. Salimi as Attorney to institute the present petition by order dated 7-4-1979 it was directed that the petitioners be produced in person before the Court so that it may be ascertained whether they are fictitious persons or they actually exist. In pursuance of this order petitioner No, 2 Faizuddin appeared in Court and his statement was recorded on 12-5-1979. The other petitioner has not so far been produced. In the meantime, the respondent moved an application C.M.A. No, 352/80 praying that the name of petitioner No, 2 Faizuddin may be struck off on the ground that he was not a party to the proceedings before the Settlement Authorities the proceedings culminating in the impugned order and also that Faizuddin has not been shown in the list of L. Rs, of Hamida the original allottee in whose name two other suits have been filed which are pending in this Court. This application was not opposed on behalf of the petitioners although the grounds urged in support thereof were not admitted. As a result, by order dated 25-8-1980 the application of the respondent was allowed and the name of Faizuddin was struck out from the petition. In was the case of the petitioners that Faizuddin's name was originally shown as one of the petitioners under a misconception created by him that he is the sole legal representative of deceased Hamida. In the meantime, however, the present application had been submitted on 21-8-1980 praying that the name of Faizuddin be struck out and substituted with the name of deceased Hamida through his General Attorney A. G. Salimi.
3. While disposing of the application of respondent for striking off the name of Faizuddin, therefore, it was ordered that the present application will be disposed of on its own merits without prejudice by the order striking off the name of Faizuddin with consent. In support of the present application it was contended by the learned counsel that the notice dated 25-6-1974 addressed by the Settlement Authority in this petition (Annexure P. B.) was addressed to A. G. Salimi, Attorney of Hakim Ali and Hamida. The notice dated 17-11-1976 issued by the Deputy Commissioner (East).
4. (respondent therein), initiating the impugned proceedings was also issued to the two allottees, namely Hakim Ali and Hamida as well as to A. G. Salimi, but in response to the notice Salimi alone appeared and was all alone recognised as representing the interest of the allottees.
5. ' As stated above the prayer in this application is that the deceased Hamida be substituted in place of former petitioner No, 2 through his attorney Salimi. Since the proposed party does not claim any right by devolution of interest during the pendency of the proceedings, obviously the provisions of Order XXII, C. P. C. Are not attracted. The only question for consideration, therefore, is whether deceased Hamida should be joined as, party under order I, rule 10, C. P. C. However, it seems quite well-settled that no judicial proceedings can be brought in the name of a deceased person. Questioned on this aspect the learned counsel for the petitioner conceded to this legal position after referring to certain facts. Counsel then made an oral prayer that Abdul Ghafoor Salimi be impleaded as petitioner No, 2 as General Attorney of deceased Hamida.
6. ' In this behalf it is submitted that from the statement of Faizuddin recorded in this Court it has been established that Hamida died in about 1977 after disposing of his property including his claim which is the foundation of the allotment in dispute in this case which ultimately has been acquired for consideration by Salimi himself. Counsel referred to documents marked PA/1, PA/2 and the irrevocable power of attorney purporting to be executed by deceased Hamida in 1971. It was submitted that Hakim All had transferred the land obtained in lieu of claim by him to Salimi. The contention, therefore, was that Salimi in his own right having interest in the subject-matter of the agency, the power of attorney cannot be terminated even on the death of the donor as provided by section 202 of the Contract Act and, therefore, Salimi himself is competent to file the. Present petition. Reliance in this behalf was placed on two cases reported in PLD 1977 Kar, 162 and PLD 1977 Kar. 22 as well as Commentary on the Law of Agency by Storey. I was also submitted that even during the partition proceedings the inter venors took no exception to Salimi as a party.
7. ' On the other hand, Mr. K. A. Ghani appearing for the intervenor Muhammad Taqi submitted that in Suit No, 252 of 1975 filed in the name of Hakim All and Hamida by A. G. Salimi which is pending in this Court the list of presumptive L. Rs, of Hamida shows the name of Siraj as his son, Mst. Amnat as his daughter and Mst. Fatima Begum as his wife, and yet none of these L. Rs, is being impleaded as a party. He argued that suit or other legal proceedings cannot be filed in the name of a dead person. He further referred to the copy of the order in Writ Petition No, 444 of 1978 in the Lahore High Court filed by one Habib Khan (at page 605) of the file in which Hamida was shown as a respondent. He also referred to a Vakalatnama dated 30-3.1976 purporting to be signed by Hamida (at page 431 of the file) and finally to the present application in which it was stated that Hamida died in 1975. On these facts the submission was that Hamida is a fictitious person and according to the intervenors he did not exist but is the creation of the fraudulent designs of Salimi. The arguments of Mr. K. A. Ghani were adopted by Mr. Malik Muhammad Aslam appearing for the intervenor Arshad Malik. On behalf of the petitioners it was submitted that the evidence before this Court in the form of the statement of Faizuddin clearly establishes that Hamida died in about 1977 and prima facie transferred his interest in the land to Salimi and, therefore, it is not necessary to implead his L. Rs, According to the learned counsel for the petitioners, the names of the L. Rs, shown in Suit No, 252 of 1975, were through an error but as a matter of fact the only surviving legal representative left by Hamida is Faizuddin and such application has been submitted in the said suit.
8. ' After considering the arguments of the learned counsel, I feel it is unnecessary for present purposes to determine the question of the L. Rs of original allottee Hamida. For present, purposes there is sufficient evidence that Hamida has died. It is also not necessary to determine the question whether Hamida was a fictitious person. These questions can be raised and agitated in appropriate proceedings. For the present purposes it is sufficient to take notice of the fact that A. G.
9. Salimi has been recognised as the person dealing with the claim issued in the name of Hamida and the impugned order was passed after notice to A. G. Salimi as one of the respondents b the Deputy Commissioner, Karachi (East). I, therefore, allow the application with the modification prayed for orally, i,e,, that Abdul Ghafoor Salimi, shall be permitted to join as a co-petitioner, but since in the present pleadings it is not necessary to determine the question whether he has acquired a personal interest in the subject matter of dispute in this petition, he will be impleaded as a party to the petition by virtue of the fact that he was a party in the proceedings in which the impugned orders were passed.