AMIR HANI MUSLIM, J. --- Through this petition, the petitioner, impugns the order dated 26.5.2011 passed by a learned Division Bench of the Islamabad High Court, whereby it has admitted the RFA No. 70/2010, filed by respondents No. 2 to 5 against ex parte decree dated 16.3.2010 of the Senior Civil Judge, Islamabad, to regular hearing suspending the operation of the ex parte decree dated 16.3.2010, till the decision of the appeal.
2. Facts relevant for disposal of instant case are that the respondent No. 1 is the joint owner/co- allottee of Plot No. 5, Street No. 61, F-7/4, Islamabad having equal share with another co-allottee.
The petitioner entered into a sale agreement with the respondent No. 1 for purchase of half portion of the duplex house bearing No. 5-B, Plot No. 5, Street 61, F-714, Islamabad, for a total consideration of Rs. 1,00,00,000/- (Rupees one crore). It was agreed that the respondent No. 1 shall arrange sub- division of the said house from the CDA within six 'months of the signing of the sale agreement and shall deliver its physical vacant possession free from all encumbrances. The petitioner on 17.9.2002 paid a sum of Rs. 7,00,000/- (Rupees seven lacs) at the time of execution of the sale agreement, which amount was acknowledged by the respondent No. 1. It was further agreed that the remaining sale consideration of Rs. 93,00,000/- would be paid in two instalments. First instalment of Rs. 23,00,000/- was agreed to be paid within two months and fifteen days of signing of the sale agreement. The last instalment of Rs.
70,00,000/- was to be paid within eight months of the signing of the sale agreement, at the time of delivery of possession after the house is transferred/registered in favour of the petitioner.
3. On 21.10.2002, the petitioner paid the first instalment of Rs. 23,00,000/-, which was acknowledged by the respondent No. 1 through another sale agreement dated 21.10.2002, whereafter the petitioner asked the respondent No. 1 to initiate process for sub-division and transfer of the said house through letters dated 6.3.2003 and 3.5.2003. The respondent No. 1 neither replied to the said letters nor took steps to perform his part of the contract by initiating subdivision/transfer proceedings in the CDA.
4. Resultantly, the petitioner on 16.5.2003, filed a suit against the respondent No. 1 and the Capital Development Authority (CDA) for specific performance of the sale agreement dated 17.9.2002 and perpetual injunction in the Court of Senior Civil Judge. Islamabad. The suit was initially contested by the respondent No. 1 and Capital Development Authority by filing written statements taking preliminary objections in regard to`maintainability of the suit. On 19.1.2004, the Trial Court struck various issues in the presence of the respondent No. 1 and his counsel. On 10.2.2004, the Trial Court recorded the evidence of Plaintiff who appeared as P.W-1, in the presence of the counsel for the respondent No. 1. On 8.2.2005, neither the respondent No. 1 nor his counsel appeared and the suit was ordered to proceed ex parte against him.
5: On 20.5.2005, the respondent No. 5 filed application under Order I, Rule 10, CPC before the learned Trial Court, inter alia, on the ground that her husband, the respondent No. 1, has been missing for the last one year \ and that the defendant No. 1 transferred the suit house in her favour in lieu of the dower in the year 1990. On 20.5.2005, the evidence of the marginal witnesses to the sale agreement, who appeared as PWs-2 and 3, was recorded. One Ch. Imran A.I was examined as P.W-
4. On 30.1 2006, Zafar Abbas Awan, Assistant, Estate Management-I, Capital Development Authority, was examined for the defendant No. 2.. On 27.4.2006, the application of the respondent No. .5 under Order I, Rule 10, CPC after hearing was dismissed against which she preferred Civil Revision No. 422 of 2006 before the learned Lahore High Court. Qn 104.2007, the revision was dismissed by the learned Lahore High Court with the observations that if the respondent No. 5 was so advised, she may file a separate suit for redressal of her grievance.
6. On 27.6.2007, the respondents No. 2 to 5 moved joint application before the Trial Court for their impleadment as party to the suit, inter alia, on the ground of being successors of the respondent No. 1 and that the respondent No. 1 ' went missing since 11.8.2004 and his interest in the proceedings was not taken care of, which application was dismissed by the Trial Court, by its order dated 8.1.2008.
7. On 8.2.2007, the respondent No. 5 filed a suit for declaration against her husband, the respondent No. 1 and the CDA, in regard to the title of the suit house with the following prayer:-
(a) that a decree for declaration to the effect -that the plaintiff is lawful owner in possession of the suit house in terms of agreement/Mehr Nama and has right and interest to its ownership and possession.
(b) that a decree for mandatory injunction directing defendant No. 2 to transfer the suit house in the name of plaintiff with all rights and interests in execution to the Agreement/Mehr Nama
(c) that a decree for permanent injunction restraining the defandants from transferring or alienating the suit house in any manner whatsoever for doing any act or omission which may be prejudicial to the rights and interest of the plaintiff.
The present petitioner, however, was not impleaded as a party to the suit. On 20.9.2010, the suit was dismissed for non-prosecution and an application for restoration of the suit was made, which application is pending before the Trial Court.
8. On 16.3.2010, the Trial. Court decreed the suit of the petitioner ex parte and the defendant No. 2 CDA in the suit, was directed to substitute the name of the petitioner-plaintiff in place of the defendant No. 1 the record maintained in its office as 'Owner'. The petitioner was held entitled to get possession of the suit property as a consequential relief subject to his deposit of Rs. 70,00,000/- within thirty days of the passing of the decree, failing which the suit was liable to be dismissed. The petitioner in terms of judgment had deposited the amount of Rs. 70.00,000/ with the Trial Court.
9. On 18.5.2010, the respondents No. 2 to 5 moved an application under Order IX, Rule 13, CPC before the Trial Court for setting aside the ex-parte decree'besides filing objections in the execution proceedings. Both these applications are stated to be pending before relevant forum.
1.0. The respondents No. 2 to 5, being legal heirs of the respondent No. 1 tiled RFA challenging the ex parte decree dated 16.3.2010 of the Trial Court before the learned Lahore High Court, Rawalpindi Bench, by taking the plea that they were aggrieved persons and their rights have been adversely affected by the ex parte decree and that the respondent No. 1 went missing since 2004, for which a reporl was lodged with the police. On 21.5.2010, preadmission notices were issued and operation of the . Impugned judgment was suspended. On 19.5.2011, the RFA was fixed, when the counsel for the petitioner objected to its maintainability and requested the Court to decide first the acceded to by the learned High Court.Issue of maintainability of the appeal, which request was
11. After hearing the learned counsel for the parties , the learned Islamabad High Court by its impugned order admitted the RFA to regular hearing and suspended the operation of the ex parte decree of the Trial Court till final 'decision of the appeal, against which the present proceeding has been filed by the petitioner.
12. The learned counsel for the petitioner has contended that the impugned order of the learned Islamabad High Court is violative of the provisions of Order IX, Rule 13, CPC and Section 96(2) of the CPC. He submits that the appeal against the ex parte decree can only be filed by a defendant in terms of Order IX, Rule 13, CPC and the respondents No. 2 to 5, who are the legal heirs of the respondent No. 1, could not have invoked the jurisdiction either of the Trial Court or the learned High Court without recourse to the provisions of Order XXII, CPC and the rules framed thereunder.
According to him, unless the order declaring the respondent No. 1 being dead is passed, the respondents No. 2 to 5, who are the legal heirs, could not challenge any order passed against the respondent No. 1. According to him, under the provisions of Articles 123 and 124 of the Qanoon-e- Shahadat Order, 1984, which deal with presumptive deaths, unless an order is made by the Court, a ' right to prefer appeal and or join as party to the proceedings by the respondents No. 2 to 5 who are legal representatives of the respondent No. 1, does not arise. He submits that the learned High Court has relied upon the case of this Court reported as H.M. Saya & Co v. Wazir A.I Industries (PLD 1969 SC 65), which is distinguishable on the facts of the case in hand.
13. His next contention was that once the application under Order I, Rule 10, CPC of the respondent No. 2 to 5 was dismissed by the Trial Court, the RFA filed by the respondents No. 2 to 5, was not maintainable, as the earlier order passed on their application has attained finality. In support of his contention, he has relied upon the case of Banarsi Das v. Sheodarshan .Das Shastri (AIR 1918 Allahabad 309), wherein it was held that no litigant has a right to assume himself the position of legal representative of a deceased litigant, without making an application to the Court in proper form and obtaining the orders of the Court thereon. His contention was that unless the High Court in appeal or the Trial Court in the execution proceedings hold that the respondent No. 1 has died, the right of the respondents No. 2 to 5 to step into the shoes of the respondent No. 1 will not mature to contest the proceedings. He submits that the issue as to whether the respondent No. 1 is missing or not is pending before this Court, of which the High Court has taken note, of in the impugned judgment. Therefore, the RFA of the respondents No. 2 to 5 ought to have been dismissed, as the report in regard to the whereabouts of the respondents No. 1 was submitted to this Court in H.R Cases No. 965 of 2005 etc., in which it was stated that one Gul Bahar is the second wife of the respondent No. 1 and she has stated that the respondent No. 1 is residing in USA since long time. The learned counsel submits that the law does not permit the legal heirs to step into the shoes of the respondent No. 1 nor allowed to participate nor challenge the proceedings unless the Court records a finding in regard to the death or presumptive death of the party. He, therefore, submits that the judgment relied upon by the learned Islamabad High 'Court is distinguishable on facts, therefore, appeal of the respondents No. 2 to 5 ought to have been dismissed in limine.
14. As against this, the learned counsel for the respondents No. 2 to 5 has submitted that the respondents, who were adversely affected by the ex parte decree passed by the Court can always challenge it by an application under Order IX, Rule 13, CPC and or prefer appeal, which issue has been dilated upon" in para 14 of the impugned order. His next contention was that the moment the respondent No. 1 went missing, the respondent No. 5 on 4.9.2004 approached the Police Station, Kohsar, Islamabad, and lodged the report, which fact is not in dispute. It is not even denied by the petitioner that after the police report lodged by the respondent No. 5, the respondent No. 1 ever surfaced in any part of the country nor any material has been placed by the petitioner before any forum controverting the plea of the respondents No. 2 to 5 that the respondent No. 1 went missing and has not been heard of. He submits that the provisions of Section 2 sub-section (11), CPC. Define the expression 'legal representative'. According to him the provisions of Order XXII and the ruies framed there-under could not be applied strictly to the respondents No. 2 to 5, as the status of respondent No. 1 is not even known to the respondents No. 2 to 5. He submits that under CPC, there is no concept as to how the interest of a 'missing person' could be secured in a suit. He contends that in the given circumstances, the High Court while relying upon the principles raid down by this Court in the case of H.M. Saya & Co (supra) has correctly held that the respondents No. 2 to 5 being legal heirs of the missing respondent No. 1, in law, were competent to challenge the ex parte decree by filing RFA. He submits that the learned High Court in substance has passed the order holding that since the respondent No. 1 went missing, therefore, the right to file appeal and contest the proceedings did accrue to the respondents No. 2 to 5. He submits that in view of the aforesaid contentions, the petition is liable to be dismissed.
15. We have heard the learned counsel for the parties and have perused the record. It is not disputed that