1. C.M.A. No, 2701 of 2013: ' SADIQ HUSSAIN BHATTI, J.---This is an application for condonation of delay with prayer to extend the time for filing application under Order XXII, Rule 4, C.P.C.
2. ' Facts relevant for disposal of this application are that the plaintiff filed the present suit for specific performance against one Muhammad Masood Ali Siddiqui in respect of property bearing Plot No,D-46, Block 5, F.B. Area, Karachi. The said Muhammad Masood Ali Siddiqui filed his written statement along with a list of legal heirs wherein the names of his three sons, namely, (i)
3. Muhammad Ali Siddiqui, (ii) Muhammad Shoaib Masood, and (iii) Tariq Masood Siddiqui were mentioned. The defendant Muhammad Masood Ali Siddiqui died on 29-10-2010 and his above named three sons were brought on record as his legal heirs and an amended title was filed on 11-1- 2011. Subsequently, on 28-3-2001, Mr. Abrar Hassan, learned counsel for LRs of defendant No,1 informed the Court that the deceased has also left a daughter as his legal heir. On 11-4-2011, the said learned counsel filed a statement wherein he mentioned the name of the daughter of the deceased as Mrs. Shahla Atif Ali and also mentioned her address. Vide order dated 25-4-2011, the learned counsel was directed to file proper application to bring the said LR of the deceased on record. Accordingly, C.M.A. No,6482/2011 was filed for impleading Mrs. Shahla Atif Ali as a party. This application was, however, opposed by the plaintiff on the ground that earlier amended title was filed to bring L.Rs, of the deceased wherein the name of Mrs. Shahla Atif Ali was not mentioned but no objection was raised thereto by the L.Rs, whose names were mentioned in the amended title.
4. Accordingly, office was directed to issue notice to NADRA to verify the names of the legal heirs of the deceased. Besides, vide order dated 28-1-2013, Muhammad Ali Siddiqui, son of the deceased defendant, was also directed to file his affidavit disclosing names of all the L.Rs, of the deceased.
5. Thereafter, C.M.A. No, 2702 of 2013 was filed seeking to bring on record all the legal heirs of the deceased. However, since the said application was filed after the period of limitation for filing such an application, the present application for condonation of delay was also filed.
6. ' Mr. Abrar Hassan, learned counsel for the L.Rs, of deceased defendant No,I, submitted that the said application could not be filed within time due to certain unavoidable circumstances as erroneously the deceased defendant No,1 did not mention the names of all his legal heirs along with his statement filed by him with his written statement. He submitted that now that the cause of action has devolved on all the legal heirs of the deceased, it necessary that all of them are present before the Court. He further stated that if Order XXII, Rules 4 and 5, C.P.C. Are read in juxtaposition it would transpire that there is no hard and fast rule to penalize a defendant who has not given names of all of his legal heirs in the List of Legal Heirs filed with his written statement. Relying on the cases reported as Muhammad Akhlaq v. Karam Ali. Tar Muhammad (1984 CLC 2564) and Nizamuddin v.
7. Settlement Commissioner and others (PLD 1973 Lah. 573), the learned counsel contended that the application can be treated as under Order XXII, Rule 9, C.P.C. And the Court may hold that there is no illegality if application under Order XXII, Rule 4, C.P.C. Was not made within the prescribed time limit. He also referred to provisions of Order VII, Rule 13, C.P.C. In support of his contention that a defendant may at any time file an amended list of his legal heirs.
8. ' On the other hand, learned counsel for the plaintiff filed Counter affidavit to the above application and vehemently opposed the same. He submitted that the application is misconceived and incompetent as it has been filed beyond the prescribed period of limitation. In this regard he referred to Article 177 of the Limitation Act and argued that the period for filing such an application is 90 days from the date of the death of the defendant. He stated that the defendant No,1 expired on 29-10-2010 and the present application for bringing his remaining L.Rs, (as his three sons were already brought as his L.Rs, earlier) was filed on 13-2-2013 i,e, after lapse of more than two years.
9. The learned counsel further submitted that till February, 2013 no proper application was filed for bringing the L.Rs, of the deceased on record although they were attending the Court continuously and counsel for defendant No,1 was also appearing in Court on their behalf. Earlier, in May, 2011 an application (C.M.A. No,6482 of 2011) was filed for impleading Mrs. Shahla Atif Ali, daughter of the deceased, as a defendant. This application was supported by the affidavit of one Tariq Masood, son of the deceased. Even in this application names of all the legal heirs of the deceased were not mentioned. This application was dismissed as not pressed. Thus, according to the learned counsel for the plaintiff, the defendants are playing fraud with this Court. Learned counsel for the plaintiff submitted that each and every day of the delay has to be explained to make out a case for condonation of delay, however, no reason for such long delay of over two years has been given by the defendants. He submits that the application is liable to be dismissed. In support of his submissions the learned counsel relied on the following cases:--
(1) Saifuddin v. Zainuddin and another (1995 CLC 1348),
(2) Fazal Muhammad through LRs and others v. Zainab Bibi and others (1994 SCM R 275), and
(3) Khushi Muhammad v. Mst. Aziz Bibi (PLD 1988 SC 259).
10. ' In rebuttal, Mr. Abrar Hassan, advocate, stated that the case-law cited by the counsel for the plaintiff is distinguishable and is not applicable to the present case.
11. ' I have heard the learned counsel for the parties, perused the record and the case-law cited before me.
12. ' The learned counsel for the applicant/L.Rs, of deceased defendant No,1 firstly contended that if Rules 4 and 5 of Order XXII, C.P.C. Are read in juxtaposition it would transpire that there is no hard and fast rule to penalize a defendant who has not given names of all of his legal heirs in the List of Legal Heirs filed with his written statement. I am afraid that this is not the controversy involved in the present application as the issue is with regard to the repercussions of non-filing of an application for bringing on record L.Rs, of a deceased within time limit prescribed by law. In this regard reference may be made to sub-rule (3) of rule 4 of Order XXII, C.P.C. Which provides that if within the time limited by law no application is made or intimation is given under sub-rule (1), the Court may proceed with the suit, and any order made or judgment pronounced in such suit shall, notwithstanding the death of such defendant, have the same force and effect as if it had been pronounced before the death took place. Thus, in case no such application is made within the limitation period of 90 days provided under Article 171 of the Limitation, then the suit is to proceed as prescribed in the above manner.
13. ' The learned counsel next raised the contention with regard to condonation of delay by relying of the above cited cases of Muhammad Ashfaq and others and Nizam Din and submitted that an application under Order XXII, Rule 4, C.P.C. May be treated as an application under Order XXII, Rule 9, C.P.C. And the names of the L.Rs, may be brought on record by allowing the same.
14. ' In the case of Muhammad Ashfaq and others (supra), the facts were that the trial Court, treating an application filed under Order XXII, Rule 4, C.P.C. To be one filed under Rule 9 of the same, set aside the abatement of the suit and allowed the names of the L.Rs, of the deceased to be brought on record.
15. ' In the case of Nizam Din (supra) the facts were also similar to the above case in that the respondent died during the pendency of the appeal and the appeal abated and the application filed under Order XXII, Rule 4, C.P.C. Was treated as an application under Order XXII, Rule 9, C.P.C.
16. And the abatement order was set aside.
17. ' I am of the considered view that these two cases do not lend any support to the case of the defendants as in the present case there is no abatement. On the contrary, the suit is still pending and some of the L.Rs, have already been brought on record who are defending the suit while no effort was made to bring the other L.Rs, of the deceased for more than two years. There was no reason to suppress the names of these L.Rs, It was negligence on the part of the said defendants that no application was made within the time limit prescribed by law for bringing the names of these L.Rs, on record.
18. ' It is an admitted position that the deceased defendant No,1, namely, Muhammad Masood Ali Siddiqui, while filing his written statement, filed a statement showing the names of his legal heirs. In this statement the names of only three legal heirs, i,e, the three sons of the deceased, namely, Shoaib Masood, Muhammad Ali Siddiqui and Tariq Masood Siddiqui, were mentioned. It was also stated therein "that in the case of any emergency Sr. No,1 will inform this Hon'ble Court". Thus, it is crystal clear that the deceased himself did not give the names of his daughters and wife as his legal heirs in such statement. However, a duty was cast upon Shoaib Masood to inform the Court in case of any emergency. That emergency occurred in the shape of death of defendant No,1 op 29- 10-2010. Now, it was the duty of Shoaib Masood to inform the Court about all the legal heirs of the deceased. The above three L.Rs, of the deceased were joined as defendants 1(a) to (c) by filing amended title on 11-1-2011. Thereafter, a statement was filed by legal heirs Nos.1-3 on 31-1-2011 wherein the name of another legal heir of the deceased i,e, Shahla Atif Ali was disclosed for the first time. Even at this stage the names of the other legal heirs of the deceased i,e, the widow and two sisters, were not mentioned. In this statement it was mentioned that Mrs. Shahla Atif Ali is residing in Toronto, Canada and it was prayed that she be served directly. However, surprisingly, her complete address was not provided by them. Thereafter, an application under I, Rule 10, C.P.C. Was filed by counsel for the defendants on 26-5-2011 wherein it was prayed that the "this Hon'ble Court may be pleased to implead the abovenamed intervenor as a defendant in the above suit." This application was later on dismissed as not pressed and understandably so as counsel for the defendant was well aware that there is difference between an intervenor and a person who is to be brought on record as legal heir of a deceased litigant. Finally, on 13-2-2013, that is after a lapse of more than two years of the death of the deceased defendant No,1 Muhammad Masood Ali Siddiqui, an application under Order XXII, Rule 4 read with section 151, C.P.C. Was filed, for bringing on record the remaining legal heirs of the said deceased defendant.
19. ' In the case of Fazal Muhammad through L.Rs, and others (supra), the review petition was based on the contention that the respondents, who were then petitioners, have not been served properly and some of them were dead and their legal representatives had not been brought on record. It was held by the Hon'ble Supreme Court that death of the respondent in a case pending before the Supreme Court and a decision in his absence has been considered in Khushi Muhammad v. Mst.
20. Aziz Bibi (PLD 1988 SC 259) and has been held to be inconsequential in the circumstances of the case.
21. ' In the case of Saifuddin (supra) somewhat similar situation arose wherein a similar application was decided in the following manner:- "2. This application has been moved by the counsel for the appellant with the prayer for joining L.Rs, of the deceased appellant in the present appeal. Objections to this application have been filed by the respondents. One of the grounds taken by the respondent is that this application is barred by limitation under Article 176 of the Limitation Act as the same has been moved after lapse of 90 days from the date of death of the appellant. The appellant has died on 1-6-1994 whereas this application has been moved on 14-9-1994 which is about 16 days beyond the permissible period of 90 days. Article 176 of the Limitation Act lays down that such application for joining the L.Rs, of deceased appellant will be made within 90 days from the date of death of the appellant. In these circumstances, we are of the view that the provision of subsectioh (2) of Rule 3 of Order XXII, C.P.C. Will be attracted. One of the legal heirs Muhammad is mentioned in the list of L.Rs, filed along with the plaint, to be the person to inform the Court in case of death of appellant, who was plaintiff in the suit and he having failed to do so within 90 days as above, the said legal representatives cannot be brought on record as it is barred under law of limitation. Sub-rule (2) of Rule 3, Order XXII, C.P.C. Provides as under: -- "(2) Where within the time allowed by law no application is made or intimation is given under sub- rule (1) the Court may proceed with the suit, and any order made or judgment pronounced in such suit shall, notwithstanding the death of such plaintiff, have the same force and effect as if it had been made or pronounced before the death took place."
22. ' Rule 11 of Order XXII further provides that the procedure provided for the suit would also apply to the appeal. In the case of Ibrahim v. The Settlement Commissioner (PLD 1987 Karachi 493) a DB of this Court has also held that in such circumstances the suit/appeal does not stand abated. In the, case of Bibi Khudeja v. Pir Sarwaruddin Shah (1992 MLD 490) a DB of this Court has held as under: -- "Period prescribed for making such application, which was made either by the plaintiff or by the legal representatives of deceased defendant was ninety days, which period would be computed from the date of the death of the defendant---where no application was made either by the plaintiff or by legal representatives of deceased defendant within time prescribed by law, Court would be obliged to continue the proceedings notwithstanding the death of deceased and any judgment or order pronounced thereby, would have the same effect and force as if it had been pronounced before the death of defendant.
23. ' Article 177, Limitation Act has prescribed period of ninety days for bringing legal representatives of deceased defendant on record either on the application of plaintiffs or on the application of legal representatives---such period has to be computed from the date of death of deceased defendant---where no application was made either by the plaintiff or by the legal representatives of deceased defendant within the time prescribed by law, Court would be obliged to continue the proceedings notwithstanding the death of the defendant any judgment or order pronounced thereby would have the same force and effect as if it had been pronounced before the death of defendant took place."
24. ' The same Bench has further held that failure of legal representative of deceased to apply within the period prescribed by law would debar them from taking part in the proceedings and the suit would continue in name of the dead party.
25. ' From the above discussion we are of the view that the application is liable to be dismissed.
26. Accordingly, we dismiss the application but hold that present appeal shall continue to proceed in the name of the deceased appellant."
27. ' The learned counsel for the plaintiff vehemently contended that these are delaying tactics as the defendants want to prolong this matter. This seems to be correct. A perusal of the statement filed by the "LEGAL HEIR OF THE DEFENDANT", without disclosing the name of the legal heir who has filed the same, would show that it has been mentioned therein that late Muhammad Masood Ali Siddiqui died on 29-10-2010. "He left behind the following legal heirs:-". Thereafter, names of four legal heirs, i,e, the three sons who have already been joined as defendants Nos. 1(a) to (c) and one sister Shahla Atif Ali, has been mentioned. This statement was totally wrong as the widow of the deceased as well as two other daughters were also left behind by the deceased as his L.Rs, This .Was in full knowledge of the L.Rs, of the deceased who filed the said statement but they deliberately did not disclose the names of all the legal heirs. Furthermore, prayer was made for issuance off direct notice to Mrs. Shahla Atif Ali but surprisingly her address was not mentioned in the statement. How the Court would issue notice to a person whose address is not provided by his brothers. Subsequently, on 11-4-2011 her address was provided by counsel for the defendants.
28. ' It was stated that L.R. Muhammad Ali Siddiqui in the replication to the Counter Affidavit to this application that there was no mandatory obligation upon him to give names of the sibling and the widow of the deceased. The question arises whether he was under any obligation to give wrong information to the Court by filing a statement in which he mentioned the name of only Shahla Atif Ali and suppressed the names of other L.Rs, of the deceased. Why he did not disclose the names of all the legal heirs of the deceased which were fully in his knowledge. When the three sons of the deceased were brought on record by filing amended title on 11-1-2011, they were fully aware of the fact that there are other legal heirs of the deceased but they kept quiet and then suddenly they disclosed the name of Shahla Atif Ali and thereafter the names of other L.Rs, of the deceased that too when a notice was issued to NADRA for providing full particulars in this respect and one of the LRs was directed to file his affidavit disclosing the names of all the L.Rs, of the deceased.
29. ' It is also noted that an application under Order I, Rule 10, C.P.C. Was filed for impleading Mrs. Shahla Atif Ali as a party to this suit. In the supporting affidavit it was mentioned on oath that the deceased died at Karachi on 29-10-2010 leaving behind the following legal heirs:
(1) Shehla Atif Ali,
(2) Muhammad Shoaib Masood Ali Siddiqui,
(3) Muhammad Ali Siddiqui, and
(4) Tariq Masood Siddiqui.
30. ' Para 9 of such affidavit states that "That whatever is stated above is true and correct to the best of my knowledge and belief'. This was a totally wrong statement on oath by the said deponent as he was fully aware that there were other legal heirs of the deceased. .
31. ' It was also stated in the said affidavit that the relationship between the brothers and sister, are not good. This is no ground to make a wrong statement before the Court. The defendant was only required to disclose the names of all the legal heirs of the deceased and if they were not traceable they would have been served by publication.
32. ' In the replication filed on behalf of Muhammad Ali Siddiqui, L.R. Of the deceased, it was stated that "subsequently it was revealed that the suit being a suit for specific performance will eventually affect the rights and interests of all the legal heirs of late Masood Ali Siddiqui in respect of the property in suit. Therefore, this Hon'ble Court directed the NADRA Authorities to give all the names of the legal heirs of the late Masood Ali Siddiui." Firstly, it was clear from day one that the suit is for specific performance in respect of the suit property and rights and interest of all the L.Rs, would be affected, therefore, it is wrong that "subsequently it was revealed". Even the deceased defendant knew full well that rights and interest of all his L.Rs, are involved but still he did not disclose the names of all the L.Rs, in the List of Legal Heirs. Secondly, notice was issued to NADRA authorities as the L.Rs, of the deceased were not coming forward with true and correct facts.
33. ' It is a trite law that for seeking condonation of delay, each day's delay is to be explained which has not been done in the present case. No plausible reason has been advanced for condonation of delay of over two years. In the above cited case of Saifuddin the Court did not condone delay of 16 days only in filing an application under Order XXII, rule 4, C.P.C. Accordingly, the listed application is dismissed.
2. In view of the above order, this application, being barred by limitation, is also dismissed. However, since the three sons of the deceased already been brought on record as defendants 1(a) to (c), and their interest is similar to the interest of those L.Rs, who have not been brought on record, rather they have a bigger share in the suit property than their sisters and the mother, the suit may proceed in accordance with law and in respect of those L.Rs, who have not been brought on record the judgment and decree in the suit would be as though the same was passed during the lifetime of the deceased..