1. MEHMOOD MAQBOOL BAJWA, J.--- Questions the legality of order dated 4-3-2010 recorded by learned Civil Court at Ferozewala whereby application for rejection of plaint in the suit for specific performance titled "RANA MAHBOOB KHAN v. NAWABZADA MOHABAT ALI ZAFAR and others" was declined.
2. 2.Suit for specific performance of executory contract of sale dated 25-2-2002 with perpetual injunction was instituted by respondent No.1 against Nawabzada Mohabat Ali Zafar (predecessor- in-interest of present petitioners) and Nawab Zada Bahadur Sher Khan with the stance that predecessor-in-interest of petitioners agreed to sell the property, subject- matterofsuitinfavourofrespondentNo.1throughhisreal brother and attorney, respondent No.2 who failed to liquidate their liability being principal and agent, prompting the respondent No.1 to institute the suit.
3. Process was issued in the name of predecessor-in-interest of the petitioners and as per order dated 26-4-2004 after report of process-server about the death of said predecessor the present petitioners were arrayed as defendants who ultimately were proceeded against ex parte vide order dated 8-1-2005 after substituted service.
4. The respondent No.2 arrayed as defendant being attorney admitted the claim of respondent No.1 by making obliging statement on 24-1-2006 besides submission of conceding written statement.
5. Ex parte proceedings initiated against the petitioners were set aside by the learned trial Court vide order dated 18-3-2009 with direction to submit written statement. Thereafter an application was filed on behalf of petitioners for rejection of plaint asserting that their predecessor-in-interest died prior to institution of suit and suit was instituted against dead person. Further submitted that agency of respondent No.2 arrayed as defendant stands terminated after the death of principal.
6. The applicationwasdeclinedbylearnedtrialCourtthroughorder impugned.
7. 3.The learned counsel for the petitioners while assailing the vires of impugned order submitted that predecessor-in-interest of the petitioners died prior to institution of suit and suit was instituted against a dead person, nullity in the eye of law and as such plaint was liable to be rejected. Help was sought from the dictum laid down in "HAFIZ BROTHERS (PVT.) LTD. and others v. MESSRS PAKISTAN INDUSTRIAL CREDIT AND INVESTMENT CORPORATION LTD." (2001 SCM R 1), "Malik BASHIR AHMAD KHAN and another v. QASIM ALI and 12 others" (PLD 2003 Lahore 615) and "MUHAMMAD BAKHSH and 15 others v. ALLAH WASAYA and others" (PLD 2007 Lahore 185).
8. Submitting arguments with reference to impleading respondent No.2 as defendant being attorney of predecessor-in-interest of petitioners it was contended that mere impleading respondent No.2 cannot save respondent No.1 from the consequence, ensued due to death of principal prior to institution of suit because the agency terminated after the death of principal. Reliance was placed upon "MEHDI KHAN v. FAQIR MUHAMMAD and 4 others" (PLD 1980 Lahore 110) and "GHULAM MASIH ALBERT GILL through special attorney v. PROVINCE OF PUNJAB through District Officer Revenue/Collector, Sahiwal and 2 others" (2011 Civil Law Cases 848).
9. 4.Submitting arguments in rebuttal, the learned counsel for respondent No.1 though did not dispute the factum of death of predecessor-in-interest of the petitioners prior to institution of suit but argued that since suit was not against a sole defendant as respondent No.2, who was attorney was also arrayed as defendant in the suit, therefore, the learned trial Court rightly declined the application. Placing reliance upon the rule of law expounded by the honourable apex Court in Civil Petition No.1657-L of 2010 titled "Muhammad Yar (deceased) through LRs. and others v. Muhammad Amin (deceased) through LRs. and others (Approved for reporting), it was contended that admittedly, respondent No.2 who was attorney of predecessor-in-interest of the petitioners was impleaded and was alive therefore, suit was maintainable. Referring to the order dated 26-4-2004, it was contended with vehemence that order of learned trial Court directing the respondent No.1 to implead petitioners being successor was not assailed which attained finality who also made an application for setting aside ex parte proceedings as such are estopped to question the order impugned.
10. 5.There are certain admitted facts. Suit for specific performance was instituted by respondent No.1 against Nawab Zada Mohabat Ali and Bahadar Sher Khan arraying them as defendants on 23-12- 2003. It is not disputed that Nawab Zada Mohabat Ali (predecessor-in-interest of the petitioners) died on 9-6-2003, prior to institution of suit. It is the case of respondent No.1 that Nawab Zada Bahadar Sher Khan arrayed as defendant No.2 was attorney of his brother (original defendant No.1) who being attorney executed agreement to sell.
11. It is worth-mentioning that respondent No.3 before this Court was not impleaded as defendant initially who was directed to be impleaded as defendant No.3 vide order impugned and as such its presence or otherwise is irrelevant to settle the controversy.
12. 6.Moot point before this Court is whether suit as laid and framed was competent or otherwise.
13. Since, predecessor-in-interest of the petitioners was dead prior to institution of suit therefore, suit to his extent was nullity in the eye of law as held in "HAF1Z BROTHERS (PVT.) LTD. and others v. MESSRS PAKISTAN INDUSTRIAL CREDIT AND INVESTMENT CORPORATION LTD." (2001 SCM R 1), "Malik BASHIR AHMAD KHAN and another v. QASIM ALI and 12 others" (PLD 2003 Lahore 615) and "Ch. MUHAMMAD TUFAIL KHAN alias TUFAIL MUHAMMAD through Legal Representatives v. ZARI TARAQIATI BANK LIMITED through Branch Manager" (PLD 2007 Lahore 180).
14. The proposition to this extent is hardly subject to any exception.
15. 7.Attempt was made by the learned counsel for respondent No.1 to make distinction contending that since respondent No.2 was also arrayed as defendant being attorney and as such there were more than one defendants and the right to sue survived, therefore, suit was maintainable after arraying the petitioners being successor of original defendant No.1 and to substantiate his contention, reliance was placed upon the Ratio expounded in Civil Petition No.1657-L of 2010 decided on 6-12-2012. Dealing with the proposition it was held in paragraph (7) of the judgment as follow:--- "Heard. attending to the first question, the legal position by now is quite settled and explicit, in that, where a suit/lis is against only one defendant/respondent of the case, undoubtedly it shall be invalidly instituted being against a sole dead person (defendant) and shall be a nullity in the eyes of the law as a whole; it shall be a still born suit/lis; an altogether dead matters, which cannot be revived; it shall, thus not merely be a defect which can be cured, rather fatal blow to the cause.
16. However, the position shall be different where the lis is initiated against more than one defendants/respondents and out of them only one or few are dead, while the other(s) is/are alive.
17. In such a situation, it shall be a validly initiated suit/lis in respect of the respondent(s), who are alive, but invalid qua those, who are dead. To cater for such a situation, it has been held in Malik Bashir Ahmad Khan and another v. Qasim Ali and 12 others (PLD 2003 Lahore 615):--- "Obviously, if a suit has been filed against the only defendant, who was dead at the time of the institution, such suit shall be still born, non-existent, and a nullity in the eye of law, therefore, it could not be merely defective and thus, could not be revived by impleading the legal heirs of the deceased defendants. The plaintiff, in such a situation, subject to law, may have the option to bring a fresh suit against the heirs on the basis of the same cause of action. But, this rule shall not be applicable in a case, where the suit has been instituted against more than one defendants and one of them was dead at the relevant time. The suit shall not be nullity in totality, but would be validly instituted against the living defendants, however, it would be defective qua the deceased party, which defect shall be curable by the plaintiff, bringing on record the heirs of the deceased defendant. To support this view, reliance can be placed on the following judgments:--- Prim Pala Mul-Narain Mal v. Fauja Singh (AIR 1926 Lahore 153).
18. Roop Chand v. Sardar Khan and others (AIR 1928 Lahore 359)
19. Ghulam Qadir Khan v. Ghulam Hussain and others (AIR 1937 Lahore 794)
20. Nabi Bakhsh v. Malik Muhammad Akram, Settlement Commissioner and others (PLD 1969 Lahore 880), and The Province of East Pakistan v. Major Nawab Khawaja Hasan Aksary and others (PLD 1971 SC 82)."
21. The above is the apt and correct exposition of law and such judicial opinion of the Lahore High Court is upheld and approvedinits letterandspiritandshouldbetakentotheviewofthisCourt.Therefore,weareconstrainedtoset aside that part of impugned judgment, which is contrary to the law enunciated in the noted dictum (PLD 2003 Lahore 615 supra)."
22. 8.Keeping in view the "Authoritative precedent" question for determination would be whether in the attending circumstances, right to sue was available against respondent No.2. To resolve the controversy, status of predecessor-in-interest of petitioners and respondent No.2 has to be kept in view.
23. It is the case of respondent No.1 that respondent No.2 was attorney of his brother (predecessor-in- interest of the petitioners) who executed agreement to sell in his capacity of agent.
24. Section 21 of The Contract Act (IX of 1872) which is relevant is re-produced for ready reference.
25. "An agency is terminated by the principal invoking his authority or by the agent renouncing the business of agency or by the business of the agency being completed or by either of the principal or agent dying or becoming of unsound mind or by the principal being adjudicated an insolvent under the provisions of any Act for the time being in force for the relief of insolvent debtors."
26. Keeping in view the above provisions, there can be no cavil to the proposition that agency of respondent No.2 came to an end with the death of his principal, Mohabat Ali Zafar, though his real brother. The learned Division Bench of this Court expounded the same proposition in "MEHDI KHAN v.
27. FAQIR MUHAMMAD and 4 others" (PLD 1980 Lahore 110).
28. Admittedly, respondent No.2 was arrayed as defendant keeping in view his status as an agent.
29. There was no independent cause of action available against respondent No.2 and the right to sue was not independently available against respondent No.2. Though he was required to be impleaded in the lis but in the absence of impleading the appropriate person against whom cause of action was available, it can not be said that suit was alive against respondent No.2 and defect of impleading dead person could have been rectified by arraying his legal heirs.
30. In view of the matter rule of law relied upon by learned counsel for respondent No.1 though cannot be questioned but cannot advance plea of respondent due to distinguishable facts.
31. 9.Matter can be examined from another angle as well in older to evaluate the argument of learned counsel for respondent No.1.
32. Whether any statement, may be concession/or obliging by respondent No.2 in the absence of necessary party would have been sufficient to decide the fate of lis? Answer is admittedly in negative, keeping in view the inter se relations, creation of contract.
33. 10.Pursuant to above, status of respondent No.2 and his authority was contingent and conditional as envisaged by section 201 of The Contract Act (IX of 1872) and as such suit as laid and framed shall be considered a suit against sole-defendant which was not maintainable after the death of principal.
34. 11.Epitome of above discussion is that order impugned is legally not sustainable and as such while setting aside the same and allowing the revision petition, suit is dismissed but with the liberty to respondent No.1 to institute fresh suit against the petitioners and others, if cause of action is survived subject to all just and legal exceptions.
35. 12.There shall be no order as to costs.