1. ' MUHAMMAD JUNAID GHAFFAR, J.---This is an application-filed on behalf of the defendants Nos.4 and 5 wherein, it has been prayed to pass an order for abatement of Suit against defendants Nos.4 and 5 and their legal heirs in terms of Order XXII, Rule 1, C.P.C.
2. ' Learned Counsel for defendants submits that defendant No,5 died on 8.10.2012 prior to institution of this Suit, whereas, defendant No,4 died on 23.8.2013 during pendency of this Suit. Per learned Counsel the right to sue defendants Nos.4 and 5 does not survive anymore as instant Suit is for claiming rights in rem against the suit properties and so also in respect of the personal action of defendants Nos.4 and 5; hence instant application. Learned Counsel submits that the plaintiff's claim is that defendant's Nos.4 and 5 allegedly acted in excess of the authority conferred upon them through Power of Attorney and such authority was personal, therefore, the Suit must abate as both the defendants have since expired.
3. ' On the other hand, learned Counsel for plaintiff submits that the property in question has been sold by defendants Nos.4 and 5 on the basis of a power of attorney to defendants Nos.1 and 2, whereas, the said power of attorney stood revoked on expiry of one of the executants and therefore, defendants Nos.4 and 5 after selling the property have misappropriated the amount for which the defendants Nos.4 and 5 and their legal heirs are responsible. He submits that merely for the fact that the said defendants have expired listed application cannot be allowed.
4. I have heard both the learned Counsel and perused the record. Insofar as defendant No,5 is concerned, it appears that when instant Suit was filed on 23.11.2011 the defendant No,5 has been arrayed through his legal heirs and not in his own name, therefore, the objection taken by the Counsel for defendants in this regard is misconceived. Nonetheless even otherwise it is the case of the plaintiff that defendants Nos.4 and 5 have sold the property in question by misusing the power of attorney and transferred the same to defendants Nos .1 and 2 after obtaining the sale consideration and in this Suit they have also claimed a declaration to the effect that such action of the said defendants was ab-initio, null and void and of no legal effect. It may be observed that merely for the fact that the said defendants have since expired, the Suit would not abate necessarily as the right to sue in respect of the property and the alleged conduct of the said defendants still survives. The arguments that the alleged conduct of defendants Nos. 4 and 5 was a personal action and therefore, the legal heirs of the said defendants be deleted from the array of defendants would in fact, if allowed, would go against them as then the allegation against the said defendants would stand proved in absence of a proper defence by them. Merely for the fact that the plaintiffs have claimed right in the said property does not necessarily absolve defendants Nos.4 and 5 and their legal heirs from the claim so agitated on behalf of the plaintiffs. If any decree is passed either in respect of the property or against defendants Nos. 4 and 5 then they must be defended as it is not merely the property in question but so also the amount of sale consideration which has allegedly been misappropriated by defendant's Nos.4 and 5. It is also to be appreciated that on perusal of the pleadings it transpires that the plaintiff is claiming rights in the property on the ground that defendants Nos.4 and 5 unlawfully and with mala fide intentions have acted beyond the mandate of the Power of Attorney, and have misappropriated the sale consideration.
5. Their claim appears to be two fold; i,e, in respect of the property and so also in the misappropriation of the sale consideration by exercising the authority which allegedly did not vested in them, and therefore, the subsequent sale in favor of Defendants Nos.1 and 2, according to them is also unlawful and liable to be cancelled. A learned Single Judge of this Court in the case of Ghazanfer Ally Effendi and 3 others v. Arif Effendi through L.Rs, and others (2009 CLC 413), by relying upon the cases of Wali v. Manak All (PLD 1965 SC 651) and Ali Muhammad Mirza v. Mst. Sardaran (PLD 2004 SC 185) has been pleased to hold as under:-- ' The suit has been filed claiming rights in the immoveable property on the plea that the defendant No,1 is benami. The term right to sue refers to the right to seek same relief which the party seeking at the time of death of other party and the legal heirs merely continues the proceedings and it is the original party right and disabilities that have to .Be considered. The rule is that all rights of action existing in favor of, or against a party survive, but personal actions connected with individuality of the deceased do not survive.
6. ' In this matter I am of the view that it is not only the individual action of deceased defendants' as contended is in challenge, but so also the right in the property which has been created in favor of defendants Nos.1 and 2 by virtue of such action as well as alleged unlawful exercise of power of attorney and the amount of sale consideration allegedly misappropriated" In the case of Mercantile Co-operative Bank Ltd. v. Messrs Habib and Co. And others (PLD 1976 Karachi 755) another learned Single Judge of this Court has been pleased to observe in a somewhat similar- situation and what is relevant is as under:--
16. There is another aspect of the matter. It has been repeatedly held that the right to render account is a personal right available against a person who is liable to account and that such right does not survive against his heirs except in case where a claim for money is made and for which accounting is sought. The exception is upon the principle that where the deceased had appropriated money or property the cause of action even though personal to him survives.
7. (Emphasis supplied)
8. ' In the case of M. Veerappa v. Evelyn Sequeira and others (AIR 1988 SC 506) the limited question for determination before the Indian Supreme -Court in an appeal by special leave was that whether a suit for damages already instituted against a counsel has abated or not consequent on the death of the plaintiff. The case of the plaintiff against his Counsel was that he had been negligent in rendering professional services and had misconducted himself by filing the appeal after considerable delay and giving misleading information about the filing of the appeal and furthermore in withdrawing the appeal instead of canvassing for its admission. He further alleged that as a consequence of the appeal being dismissed, he came to be evicted from his business premises and thereby he had incurred loss of income as he had been unable to secure an alternate place for running his business besides suffering mental agony, worry and loss of reputation. The Court has even gone to the extent of observing that in such matters if the entire suit claim is founded on torts the suit would undoubtedly abate. If the action is founded partly on torts and partly on contract then such part of the claim as relates to torts would stand abated and the other part would survive. If the suit claim is founded entirely on contract then the suit has to proceed to trial in its Fntirety and be adjudicated upon.
9. In this matter the entire case as set up in the plaint on behalf of the plaintiffs is in relation to alleged misappropriation of the sale consideration by the deceased defendants besides other issues, and C therefore the cause of action survives. In view of such position, I am of the view that instant application is misconceived and is accordingly dismissed.