MUHAMMAD IQBAL KALHORO, J.---Applicants elaim to be legal heirs of Mst. Nabiyat Khatoon (since dead) against whom Mst. Haleema Khatoon (since dead) had filed F.C. Suit No, 23 of 1972 for Specific Performance of Contract, in respect of agricultural land admeasuring 60-17-1/5 acres situated in deh 241 Taluka Mirpurkhas in the court of Senior Civil Judge, Mirpurkhas. The suit was duly contested by Mst. Nabiyat Khatoon. It was dismissed vide judgment and decree dated 20.12.1975 and 14,1.1976. The Civil Appeal preferred by Mst. Haleema Khatoon against the above judgment and decree was also dismissed vide judgment dated 4th April 1984 by the learned 2nd Additional District Judge Mirpurkhas. Mst. Haleema Khatoon, who is now represented by his son namely Muhammad Siddiq Qureshi/the respondent, filed Civil Revision Application No,185 of 1984 before this court against that judgment. This Revision Application was disposed of vide order dated 10.9.2004 with the consent of the parties, whereby the judgments of both the courts below were set-aside and the matter was remanded to the Appellate Court for referring the thumb impressions of respondent/Mst. Nabiyat Khatoon, appearing on the sale agreement vakalatnama, written statement and on exhibits 76 and 77 (original) to the hand writing expert for his opinion. The terms of the said order further show that on receipt of such opinion the parties were allowed to examine the hand writing expert in the court and after his evidence the parties were to be heard afresh on the issues arising out of the pleadings of the parties and the Appellate Court was required to pass appropriate orders in accordance with law.
2. The matter accordingly came on the file of IInd Additional District Judge, Mirpurkhas, who dispatched requisite documents to the hand writing expert. Record reflects that although the hand writing expert asked for fresh specimen thumb impressions of Mst. Nabiyat Khatoon for comparison but on account of her death, that could not be done. He submitted his report accordingly in the light of which the appellate court decreed the suit in favour of the respondent vide judgment dated 19.5.2009 and decree dated 25.5.2009.
3. Applicants further claim that as soon they came to know of such judgment and decree, they filed an applications under Section 12(2), C.P.C. In the said application the applicants have narrated that Mst. Nabiyat Khatoon had expired in the year 1988, hereafter the respondent never made any attempt to join them in the proceedings although he was aware that they were her legal heirs. They only came to know about the case when the Mukhtiarkar made an inquiry regarding the land subject matter of the proceedings. In the said applications they have raised multiple factual and legal questions to show that the impugned judgment and decree were obtained by playing fraud and misrepresentation It is further their case that false and fabricated documents regarding sale the subject land were prepared by the respondent. Mst. Nabiyat Khatoon who was an honest person, had categorically denied selling the subject land to the respondent and.In her life time all the proceedings initiated by the respondent relating to the alleged sale of the land had culminated in her favour. During her lifetime, she had never disclosed to the applicants about pendency of any suit. According to them, in the suit the respondent was not able to show that Mst. Nabiyat Khatoon was the sole owner of the subject land. After death of the plaintiff and the defendant, their legal heirs (applicants) were not joined as such the proceedings after their death were wholly illegal and unsustainable in law. Mst. Nabiyat was merely owner of 25% of the land left by his father-in-law namely Bahadur Unar. It is not known that the thumb impressions that were sent to the hand writing expert actually belonged to Mst. Nabiyat Khatoon or not as the relevant documents revealed that one Muhammad Usma n, who had acted as attorney of Mst. Nabiyat Khatoon in the said agreement, had produced a lady before the court claiming her to be Mst. Nabiyat Khatoon and her thumb impressions were taken on the papers. After death of Mst. Nabiyat Khatoon, the land of her share was distributed among her legal heirs and accordingly in the year 1989 the khatas were also mutated. That, after remand of the case from this court vide order dated 10.9.2004, service was not effected on the applicants, the legal heirs of Mst. Nabiyat Khatoon, thus their right to contest the matter has been seriously prejudiced. Although, it came on the record of the Appellate Court through bailiff's report dated 13.3.2006 and 18.3.2006 that Mst. Nabiyat Khatoon had expired, but no efforts were made to serve her legal heirs and bring them on record. Learned Appellate Court has knowingly decreed the suit against a dead person, which is illegal and nullity in the eyes of law. No marginal witness of the agreement was examined by the respondent to prove execution of the said sale agreement. The decision of the. Appellate Court was based merely on the opinion of the hand writing expert, which is considered to be the weakest type of evidence. Even the hand writing expert was not fully sure about the genuineness of the thumb impressions of Mst.
Nabiyat Khatoon, and he had stated so in his report but it was completely ignored by the Appellate Court while allowing the appeal. Such opinion of the hand writing expert has been referred to by the learned Appellate Court in its above judgment but no reasons are given by it for not considering it. It is further claimed by the Applicants that they, inter alia, on these factual and legal points brought the application under Section 12(2), C.P.C. Against the respondent before the Appellate Coda, but it was dismissed vide impugned order on 28.10.2015 summarily as no discussion on these points had been made therein.
4. On the other hand, the case of the respondent is that litigation 'over the subject matter is 48 years old. In continuation of the proceedings, the suit was finally decreed. This court had remanded the matter to the appellate court with consent of the parties for seeking opinion of the hand writing expert in respect of thumb impressions of Mst. Nabiyat Khatoon. And after such report came in positive, the suit was but to be decreed. During the interim period, the so-called legal heirs (the applicants) of the judgment debtor got the Foti Khata Badal mutated in their favour and sold out the portions of the decretal land. According to him, applicants have also filed a Civil Suit No, 92/2015 in the court of 3rd Senior Civil Judge, Mirpurkhas chall nging the impugned order therein also. Cha ges in the record of rights in favour of t e applicants have been effected during t e status quo operating in the pending litiga ion, which, therefore, are null and void an hit by the doctrine of lis pendens.
5. Learned counsel for the parties in their arguments mainly reiterated the facts of their own cases respectively. Learned counsel for the , applicant however emphatically made a particular reference to the point that after remand of the case from this court to the appellate court. The issue of service on Mst. Nabiat Khatoon (the applicants after her death) was very casually and improperly dealt with. According to him, when through the bailiff report it had come on record of the appellate court that Mst. Nabiat Khatoon had died, it should have directed the appellant, who is respondent here, to bring her legal heirs on record but nothing in this regard was done. The record does not bear any testimony that for this purpose some bona fide attempts by the appellate court were made to rule out any chance of chicanery and misrepresentation. That, the appellate court, instead, allowed the appeal by merely relying on the opinion of the hand writing expert. It did not refer to any other evidence or the material available on record, and had it been done so, the result would have been quite different. That remanding the case to the appellate court for obtaining the hand writing expert's opinion did not mean that the entire evidence available on record was to be overlooked by it.
6. I heard the counsel and looked at the material available on record. In the application under section 12(2), C.P.C., the applicants have raised all the above stated points, and a particular reference to the mode and manner the appeal in their absence was decided against them has also been made. It is their case that the decree has been passed against a dead person. The respondent deliberately misled the appellate court by not informing it about legal heirs of Mst.
Nabiat Khatoon, and the appellate court also did not make a bona fide attempt to join her legal heirs. And according to the applicants, this has amounted to misrepresentation within the mischief of section 12(2), C.P.C. A perusal of the objections filed by the respondent to the application indicates that status of the applicants to be legal heirs of Mst. Nabiat Khatoon has not been vigorously denied by him. There is also no observation of the appellate court in the impugned order that the applicants are not the legal heirs of Mst. Nabiat Khatoon. The stance of the respondent, which he has also taken in the objections to the application is that the applicants were fully aware about pendency of the appeal but they did not bother to contest the same. A reading of the judgment dated 19.5.2009 of the appellate court (copy of which is available at page No,52 of the file) decreeing the suit of the respondent would show the appellate court was informed about the death of Mst. Nabiat Khatoon, the respondent therein, through the endorsement of the bailiff. But the entire judgment is silent over the fact as to whether any attempt to get her legal representative imp leaded in the proceedings was made or not. And if at all any such effort was made, what was its result. In absence of any findings to that effect in the aforementioned judgment of the appellate court, one can hardly concur with the assertion of the respondent that the applicants despite being in knowledge of the appeal deliberately avoided appearing in the court. Learned appellate court while deciding the application under section 12(2) C.P.C. Has not adverted to the claim of the applicants that no attempt was made to serve them. In fact, a reading of the impugned order would reflect that learned appellate court has not considered any of the objections at all raised by the applicants in their application. After reproducing the contentions of the parties and the decisions cited by them at the bar, learned appellate court has started rendering its findings from mid of page No,4 of the order. Its attentive analysis however reveals that it is simply a replica of the already stated facts. Then at the last page of the order, that is page No,6, the learned appellate court has tried to justify its conclusion of dismissing the application in these words "Needless to say that the matter went up to the Honorable High Court of Sindh Circuit Court Hyderabad and after making compliance afresh judgment was delivered by this court on 19-05-2009. It all shows that only to linger on the matter, the instant application under section 12(2), C.P.C. Has been filed on 12-10-2010 as such it is not maintainable; I therefore dismissed the same with no order as to cost." The above cited reasoning of the learned appellate court for dismissing the application can scarcely be construed a valid ground for rejecting the application under Section 12(2), C.P.C. Although no fixed procedure for deciding such application has been prescribed in law, but where it is necessary even the evidence of the parties can be recorded to decide the disputed facts among them and to arrive at a just conclusion. The fact that a matter went up to the High Court and was remanded back for decision afresh does not put up a bar to the court to decide such application on its own merits. In my view, it was obligatory upon the learned appellate court to attend to the points raised in the application by the applicants judiciously and meticulously, and if the appellate court was of the view that the controversy could not be resolved without recording the evidence, it should have taken that recourse B to do justice. The applicants, as they claim to be legal heirs of Mst. Nabiat Khatoon, have a right of representation in any inconclusive proceedings initiated against her in her life time. Such right of theirs cannot be allowed to be compromised on the altar of a quest by the court to dispose of the matter quickly. To dub the effort of the applicants to claim a right of representing Mst. Nabiat Khatoon in the capacity of her legal heirs in some proceedings decided after her death without joining them as an attempt to linger on the matter would be against the well settled principles of fairness and natural justice. Unless of course, after a judicious and meticulous examination of such claim by the court leads to such a conclusion.
7. I am of the view that the appellate court has not carefully and attentively dealt with the matter and has not considered available record properly in the context of the points raised by the applicants. It is obvious that the impugned order has not been passed by the appellate Court on appreciation of any material available before it; and therefore, it is not, sustainable in law.
Reluctantly, the impugned order is set aside. The matter is remanded back to the appellate court for deciding afresh the application under section 12(2), C.P.C. By considering the entire material available on record and, if it finds it necessary, after recording the evidence of the parties.
8. This Revision Application stands ID allowed in above terms.