CH. MUHAMMAD TARIQ, J. --- This civil revision has been directed against the judgment and decree dated 9.1.2003 passed by Mr. Allah Bakhsh Khan learned Additional District Judge, Talagang who accepted the appeal and set aside the judgment and decree dated 13.1.2001 passed by the learned Trial Court, Talagang.
2. Brief facts of the case as narrated in the civil revision are that late Haji Khan predecessor-in- interest of respondents No. 1 to 4 filed a suit for recovery of damages of Rs. 25,000/- against the petitioner.
3. The suit was resisted by the petitioner/defendant who filed a written statement.
4. That out of the divergent pleadings of the parties, learned Trial Court after framing of issues and recording of evidence of the parties dismissed the suit vide judgment and decree dated 13.1.2001.
5. That said Haji Khan, predecessor-in-interest of respondents No. 1 to 4 filed an appeal which was allowed by the learned Additional District Judge, Talagang on 9.1.2003 who decreed the suit of respondents in the sum of Rs. 10,000/- on account of damages, hence this civil revision. .
6. Learned counsel for the petitioner contends that the impugned judgment and decree is against the law and facts. The learned first Appellate Court without appreciating the evidence on record, has wrongly set aside the. Judgment and decree of learned Trial Court. The perusal of statement of Haji Khan, PW-1, who died during the pendency of appeal, does not disclose any cause of action.
The damages assessed by the learned first Appellate Court are imaginary, therefore, civil revision be allowed, impugned judgment and decree be set aside and suit of the plaintiffs/respondents be dismissed with costs.
7. On the other hand, learned counsel for the respondents has vehemently opposed the civil revision and has argued that death of tort will not abate the suit and legal heirs of deceased could pursue the suit. He has relied on P.L.D. 1990 Lahore 432 and contended that suit is fully established, therefore, civil revision be dismissed.
8. Arguments heard. Record perused.
9. To decide the fate of this case the finding on issue No. 3 by the learned Trial Court are relevant.
During the proceedings, the defendant/petitioner raised an objection that a private complaint is still pending adjudication, therefore the suit is not maintainable but the defendant/petitioner could not . Produce any material to establish that a complaint is pending adjudication.
10. On the other hand, it is fully established that Exh.P-2, the complaint was dismissed for non- prosecution on 18.2.1996. Thereafter the plaintiff filed suit for recovery of damages within the period of limitation. The objection of learned counsel for the petitioner that since the original plaintiff Haji Khan has expired during the pendency of appeal, so, suit will abate is mis-conceived as it has been held in case Syed Ghayyur Hussain Shah and another v. Gharib Alam reported as P.L.D. 1990 Lahore 432 that death of, tort-feaser-effect-maxim: Actio personalis moritur cum persona (a personal right of action dies with the person) a maxim repugnant to the spirit and the commonsense principles underlying the law of Islam and of doubtful origin would not apply and appeal would not abate. It is also evident from the record that Haji Khan himself filed the appeal before the learned first Appellate Court. Rs. 10,000/-is a meagre amount which though cannot redress the agony faced by the late Haji Khan, however, it is a token of recognition of innocence of an accused person against whom frivolous criminal proceedings were initiated which ended in shape of dismissal.
11. In the circumstances, civil revision has no force. Order accordingly.
Civil revision .