Ghulam Mustafa Mughal, J.--This appeal has been directed with leave of the Court against the judgment passed by the High Court on 30.12.2015 in Civil Appeal No.14/201 1.
2. Facts forming background of the appeal briefly stated are that Muhammad Shafi, father of the appellants, herein, filed a suit for declaration in the Court of Civil Judge Kotli on 7.6.2007 against the defendant-respondents, which was dismissed for non-prosecution on 20.4.2009. It was stated that an application for restoration of the case was filed on behalf of Muhammad Shafi on 20.9.2009, stating therein that the said case was fixed for 18.4.2009, which was declared a local holiday and on 19.4.2009, was Sunday , hence the case was placed before the Court for hearing on 20.4.2009. It was claimed that on the aforesaid date, the plaintif f couldn't appear due to the ailment of his wife and the advocate, who was repre senting him, was also busy before some other Court, hence the case was dismissed for non-prosecution. The application was objected to by the other side on the ground that no sufficient cause has been listed in the application. The learned trial Court, after hearing the parties, vide order dated 19.2.2009, dismissed the application on the ground that Muhammad Shafi, who has moved the application, had already died, therefore, the application is not entertain-able for having been filed on behalf of a dead person. The order dated 19.2.2009 was challenged through an appeal before the District Judge Kotli on 18.3.2010. The learned District Judge Kotli after hearing the parties, dismissed the appeal vide judgment dated 14.12.2010. Feeling aggrieved from the judgment of the District Judge, the appellants, herein, filed an appeal before the High Court, which also met the same fate and was dismissed on 30.12.2015.
3. Mr. Arshad Majeed Mallick, advocate for the appellants, argued that the restoration application has been dismissed by the trial Court on the assum ption that the same has been filed by a dead person, which, in fact, was not correct as an application for bringing the legal heirs of Muhammad Shafi, decea sed, on the record, was already on the file. The learned advocate contended that dismissal order even otherwise was ab initio void for having been passed on a date, which was not fixed for hearing of the case. He submitted that the case was fixed for 18.4.2009, which was declared a local holiday and even the next date i.e. 19.4.2009 was Sunday , hence dismissal of the case on 20.4.2009, which was not a date fixed for hearing of the case, was not justified . The learned advocate argued that the appeal before the District Judge was filed by the legal heirs of decease d Muhammad Shafi and it was enjoined upon the District Judge to accept the appeal and delete the name of Muhammad Shafi, deceased, but the learned District Judge has also technically knocked out the appellants, herein. He further argued that the learned High Court has also not properly appreciated the controversy on factual as well as legal side and the conclusion of the Courts below is erroneous, capricious and illegal.
4. Conversely , Raja Inaamullah Khan, advocate for the respondents, contended that the application filed on behalf of a dead person was a nullity in the eye of law and has rightly been dismissed by the trial Court as well as the District Judge and the High Court. The learned advocate argued that the grounds listed in the application were also against the facts as the wife of the deceased died much before filing of the application.
5. We have heard the learned advocates for the parties and gone through the record of the case.
6. A perusal of the record reveals that one Ikramullah filed a suit for declaration against Muhammad Shafi and others in the Court of Civil Judge Kotli on 8.10.2005. A counter suit was also filed by Muhammad Shafi against Ikramullah and others on 7.3.2007. A perusal of the record further reveals that Muhammad Shafi died during pendency of the suit on 15.10.2006. An application for impleading legal heirs of Muhammad Shafi was moved on 30.10.2006 in the suit titled Ikramullah v/s Muhammad Ilyas & others . The other side raised no objection whereupon the learned trial Court consolidated both the suits on 6.2.2008 and also impleaded legal heirs of Muhammad Shafi, deceased, in the line of defendants. However , inadvertently despite filing of the application, no order was passed in the suit titled Muhammad Shafi v/s Ikramullah & others . In our view it does not make any difference because both the suits were consolidated and if legal heirs are impleaded in one case, then the other suit cannot be dismissed.
7. We have noticed that the application for restoration of the case was filed in the name of Muhammad Shafi by the advocate inadvertently , although power of attorney along with the application has been filed by the legal heirs of Muhammad Shafi, deceased. In the order dated 6.2.2008, the trial Court has not directed for correction in the title of the suit, therefore, the application appears to have been filed in the name of Muhammad Shafi. This is a bona fide mistake, which can be rectified under the inherent powers. Neither the trial Court, nor the District Judge as well as the High Court have perused the record, otherwise the mistake could have been rectified at initial stage.
8. It may be stated that where a suit is filed in the name of a wrong person or a dead person, the defect can be rectified by resorting to Order I, Rule 10, CPC and dismissal of the suit for technical reasons has not been approved by the superior Courts. In the case reported as Karimullah Khan and another v/s Bhanu Pratap Singh Giriraj Singh [AIR 1938 Nagpur 458], in an identical situation, it was observed as under:- "....It appears to me that the distinction drawn between a suit filed by a dead plaintif f and one filed in the name of a wrong person as plaintif f is without any difference. The suit filed in the name of a dead plaintif f is manifestly one that is filed in the name of a wrong plain tiff. To give an illustration: X affixes his signature to a plaint and sends it with a power of attorney to his pleader . X dies before it is presented by the pleader in ignorance of his death. Can it not be said that the suit was filed in the name of a wrong person as plaintif f? In either case the plaint is void and its presentation is improper . In AIR 1934 Nag 55 it was observed that the existence of a valid plaint or memorandum of appeal, as the case may be, was sine qua non for the application of O.I, Rule 10, Civil P.C. Now there can be a valid plaint, in spite of such a mistake, when there are more than one person suing as plaintif fs, but when a suit is filed in the name of a wrong person as the sole plaintif f, it would be contradiction in terms to say that the plaint is valid. If A signs a plaint and authorizes his pleader to present it and the pleader by mistake inserts the name of B in the cause title and presents it, the question arises, is the plaint valid? Manifestly it is not valid because the person who purports to suit is B and the person who signs the plaint and authorizes the pleader to act is A. On the view taken in AIR 1934 Nag 55, O. 1, R. 10, Civil P.C., can have no application when a suit is filed in the name of the wrong person as the sole plaintif f, notwithstanding its terms to the contrary . This view is therefore untenable as it contradicts the plain provisions of law. None would be so bold as to contend that the plaint filed in the name of B is a valid plaint. It is invalid and O. I, R. 10, Civil P.C., permits amendment, I fail to see why it should not so permit for the simple reason that a person in whose name the suit is wrongly filed happens to be a dead person. Why should the applicability of O. I, R. 10, Civil P.C., depend upon "the wrong person" being alive or dead? On the plain reading of that enactment, I am led to think that it only contemplates that a suit should have been filed in the name of a wrong person irrespective of whether he is a living or a dead person."
Identical view was taken by this Court in the case reported as Khan Muhammad Khan & 19 others v/s Saif Ali & 22 others [PLJ 2000 SC (AJ&K) 216]. In that case the suit was filed against a dead perso n and an application for impleading his legal heirs was rejected. It was observed by this Court that where the defendant or the plaintif f has died filed before institution of the suit, the defect can be removed by resorting to Order I, Rule 10, CPC.
As we have already observed that while impleading the legal heirs of Muhammad Shafi, deceased, the Court has not directed for correction in the title of the suit. It is well-settled principle of law that a party cannot suffer for an act or omission of the Court or its any officer, as has been opined in a case reported as Qasim Hussain Shah v/s Muhammad Gulzar Khan [PLD 1984 SC (AJ&K) 150]. At page 155 of the report, it was observed as under:- "...The principle actus curia neminem gravabit (nobody should be prejudiced by an act of the Court or its officer) is one of universal application and does not recognize any provision of the Limitation Act. Delay may be excused when the appellant is mislead and if it is not done it may perpetuate injustice which injustice which should always be avoided under law......"
Thus, it can safely be held that filing of application in the name of Muhammad Shafi, deceased, was a bona fide mistake of the advocate, which could be rectified but the Courts below have not attended the defect by perusing the record properly .
9. So far as the question of restoration of the suit is concerned, it is not denied by the respondents that the date on which the case was fixed, was a local holiday . The very next day was Sunday , therefore, the case was placed before the Court for further proceedings on 20.4.2009, which was not the date of hearing. The plaintif fs were not bound to appear before the Court on a date which was not fixed for hearing of the case and dismissal of the case on the said date was ab initio void. There was no harm in accepting the application for restoration of the case. In this regard we may refer here the case reported as Habib Bank Limited v/s Kh. Muhammad Ishaque [PLD 1983 SC (AJ&K) 223].
As stated in the earlier part of the judgment that legal heirs of Muhammad Shafi, deceased, were brought on the record prior to the date of dismissal of the suit on 6.2.2008, therefore, the appeal is accepted and the suit dismissed on 20.4.2008 is restored with the direction to the trial Court to proceed further in accordance with the law. There will be no order as to the costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.