' 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 R.F.A.
No, 70 of 2010, filed by respondents Nos.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- allotted of Plot No,5, Street No,61, F-7/4, Islamabad having equal share with .Another co-allotted.
The petitioner entered into a sale agreement with the respondent N'o.1 for purchase of half portion of the duplex house bearing No,5-B, Plot No,5, Street 61, F-7/4, Islamabad, for a total consideration of Rs,1,00,00,000 (Rupees one cror). It was agreed that the respondent No,1 shall arrange subdivision 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,700000 (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 installments. First installment of Rs,2,00000 was agreed to be paid within two months and fifteen days of signing of the sale agreement. The last installment of Rs,7,00000 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 favor of the petitioner.
3. On 21-10-2002; the petitioner paid the first installment of Rs,23,00,000, which was acknowledged by the respondent No,1 through another sale agreement dated 21-10-2002, where after 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 sub-division/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, C.P.C. 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 favor 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 P.Ws.2, and 3, was recorded. One Ch. Imran Ali 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, C.P.C. After hearing was dismissed against which she preferred Civil Revision No,422 of 2006 before the learned Lahore High Court. On 10-1-2007, 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 redressed of her grievance.
6. On 27-6-2007, the respondents Nos.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 defendants 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 Nos.2 to 5 moved an application under Order IX, Rule 13, C.P.C.
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.
10. The respondents Nos.2 to 5, being legal heirs of the respondent No,1 filed 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 report was lodged with the police. On 21-5-2010, pre-admission 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 issue of maintainability of the appeal, which request was acceded to by the learned High Court.
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 violate of the provisions of Order IX, Rule 13, C.P.C. And section 96(2) of the C.P.C. He submits that the appeal against the ex parte decree can only be filed by a defendant in terms of Order IX, Rule 13, C.P.C. And the respondents Nos.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, C.P.C. And the rules framed thereunder.
According to him, unless the order declaring the respondent No,1 being dead is passed, the respondents Nos.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 Qanun-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 Nos.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 and Co. v. Wazir Ali 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, C.P.C. Of the respondent Nos.2 to 5 was dismissed by the trial Court, the RFA filed by the respondents Nos.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 Nos.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 Nos.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 Nos.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 Nos.2 to 5 ought to have been dismissed in limited.
14. As against this, the learned counsel for the respondents Nos.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, C.P.C. 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 Nos.2 'to. 5 that the respondent No,1 went missing and has not been heard of. He submits that the provisions of section 2 subsection (11), C.P.C. Define the expression 'legal representative'. According to him the provisions of Order XXII and the rules framed thereunder could not be applied strictly to the respondents Nos.2 to 5, as the status of respondent No,1 is not even known to the respondents Nos.2 to 5. He submits that under C.P.C., 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 laid down by this Court in the case of H.M. Saya & Co (supra) has correctly held that the respondents Nos.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 Nos.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 the respondent No,1 contested the proceedings till he went missing. On 20-2-2004, the evidence of the plaintiff-petitioner was recorded besides he was cross-examined at length by the counsel for the respondent No,l. Thereafter, the matter was kept adjourning with consent of the parties till 8-2-2005, on which date the witnesses of the petitioners were present, and neither the respondent No,1 nor his counsel turned up. The trial Court, therefore, ordered the matter to be proceeded ex parte against the respondent No,
1. The respondent No,5 had lodged an F.I.R on 4-9- 2004 with the Police Station, Kohsar, Islamabad, intimating about the factum that her husband, the respondent No,1, is missing since 11-8-2004 and has not returned home and has requested the police to locate him. The date on which the respondent No,5 has reported the matter to the police was prior in time, to the date on which the trial Court ordered ex parte proceedings against the respondent No,
1. On 20-5-2005, the respondent No,5 has also made an application under Order I, Rule 10, C.P.C. Praying therein to implead her as party, inter alia, on the ground that her husband was missing and the property, subject-matter of the suit, was given to her by her husband in lieu of dower amount way back in 1990. The contents of the application of respondent No,5, prima facie, establishes that the respondent No,1 had not deliberately 'avoided proceedings nor his absence before the trial Court was wilful and since he, according to respondent No,5, was missing for reasons not known to her, she be impleaded as party to the suit to secure her interest. This application was dismissed and revision preferred against it was also dismissed by the learned Lahore High Court with the observation that the respondent No,5 may file independent proceedings to claim her right in the property. We were informed that a suit for declaration filed by the respondent No,5 is still pending in the trial Court.
16. The second set of proceedings comprises of the application under Order IX, Rule 13 read with section 151, C.P.C. Made by the respondents Nos.2 to 5 challenging the ex parte decree besides filing objections in the execution proceedings before the trial Court. The respondents Nos.2 to 5 also filed RFA against ex parte decree pleading that the non-contesting of the suit by the respondent No,1 before the trial Court was not intentional as he went missing since 11-8-2004 and the F.I.R. In this respect was lodged by the respondent No,5 with the Police Station, Kohsar, Islamabad, prior to the passing of the ex parte order on 8-2-2005, by the trial Court.
17. The petitioner, till date, has not placed any material either before the trial Court or before the appellate Court to establish that the respondent No,1 never went missing nor , has he disputed the plea of respondents Nos.2 to 5 that respondent No,1 had not been heard of since August 2004 by them. The provisions of Article 123 of the Qanun-eShahadat Order 1984, speak about the burden of proof of the fact about a person known to have been alive, which Article is subject to the Article 124 of the said Order, in which it has been provided that when the question arises as to whether a man is alive or dead, and it is proved that he has not been heard of for seven years by those who would naturally have heard of him, the burden of proving that such person is alive is shifted to the person who affirms it. The Article 124 clearly shifts the burden on the petitioner to establish that (a) the respondent No,1 is alive and (b) he intentionally has avoided to contest and or participate in the suit proceedings. No material has been brought on record by the petitioner to controvert that the plea taken by the respondents Nos. 2 to 5 that the respondent No,1 went missing since 11-8-2004.
The provisions of C.P.C. Does not provide the procedure to secure the interest of a missing person.
In such like circumstances, where one of the legal representative has pleaded before the trial Court that the respondent No,1 went missing prior to the passing of ex, parte order by the trial Court against him, the right to challenge ex parte decree by the respondents Nos.2 to 5, would accrue to them Any finding by the trial Court on an application under Order I, Rule 10, C.P.C. Of the respondents Nos.2 to 5, would, in no way, debar them from challenging ex parte decree.
18. The cases of this Court relied upon by the learned High Court in the impugned order are distinguishable on facts but the principle laid down by this Court in these cases would cover such an eventuality. As far as the case of Banarasi Das (supra) is concerned, it is distinguishable on facts in as much as the appeal was preferred by the legal representatives of the deceased party, whereas in the case in hand such a plea of death has not been taken by them except they have pleaded that the respondent No,1 went missing since 11-8-2004 and has not been heard of till date.
A formal order of the Court in regard to the presumptive death of the respondent No,1> is neither required nor is necessary once it is not in dispute that the respondent No,1 has not been heard of since 11-8-2004. The learned Islamabad High Court in its impugned order has accepted the plea of respondents Nos.2 to 5. A formal order of the nature, depriving the respondents Nos.2 to 5 from challenging or contesting or participating in the proceedings before the trial Court or the appellate Court, could only have been passed once the petitioner had established that the respondent No,1 or his counsel deliberately avoided contesting the proceedings before the trial Court or his whereabouts were known to the respondents Nos.2 to 5. The learned Islamabad High Court, in the peculiar facts and circumstances of the case was justified 'in admitting the RFA filed by the respondents Nos.2 to 5, to regular hearing by holding that the appeal was maintainable.
19. As far as the proceedings in Human Right Case are concerned, the same are independent proceedings and cannot be looked into for recording any finding in these proceedings. We may also observe that in the given circumstances, when respondent No,1 went missing and, prima E facie, had failed to contest the suit proceedings, the respondents Nos.2 to 5 were competent, in law, to challenge ex parte decree in order to secure the interest of the respondent No,1, which would ultimately devolve upon them. The purpose for passing ex parte decree is to penalize a party which deliberately avoids appearance, either in person or through his counsel, with the ulterior object to defeat or delay and or frustrate the F litigation or is grossly negligent or fails to appear without sufficient cause, but such principle of law would not extend to cover an eventuality of the nature where the respondent No,1 went missing.
20. We, in the given circumstances, for the aforesaid reasons, hold that the impugned order of the learned Islamabad High Court does not suffer from any legal Infirmity which could warrant interference by this Court. This petition is dismissed and leave is refused. We, however, would direct the learned Islamabad High Court to decide the RFA, of the petitioner preferably, within a period of two months from the date of communication of this order as the parties are litigating since 2004.