IRFAN SAADAT KHAN, J.--- This High Court Appeal has been filed against the order dated 07.11.2016 passed by the learned Single Judge in Suit No.73 of 2012, whereby the application filed by the present appellants, who are defendants Nos.4 and 5 in the above referred suit, under Order XXII, Rule 1, C.P.C. was declined.
2. Mr. Aga Zafar Ahmed Advocate has appeared on behalf of the legal heirs of Syed Shan Nazir Ahsan and Syed Jamil Ahsan, who are stated to have expired, and stated that since these two persons have expired, therefore, an application under Order XXII, Rule 1, C.P.C. was filed for abatement of the suit proceedings against them which, according to him, was incorrectly dismissed by the learned Single Judge on the basis of the facts which are not available in the instant suit. He, while elaborating his viewpoint, submitted that the learned Single Judge has misconstrued the nature of the suit as he has opined that since misappropriation has been made by the above named two persons, namely, Syed Shan Nazir Ahsan and Syed Jamil Ahsan, who are now deceased, hence cause of action survives and has dismissed the application filed on behalf of the said persons by their legal heirs. He also stated that in the written statement filed on behalf of the above named two person it was categorically stated that the suit against the legal heirs of Syed Jamil Ahsan was not maintainable as at that time the defendant No.4, namely, Syed Shan Nazir Ahsan was alive but since the said Syed Shan Nazir Ahsan has expired subsequently therefore the suit, in his view, should have been abated and the legal heirs of above named two persons ought to have been absolved from participating in the suit proceedings. He further submitted that in the counter affidavit filed on behalf of the respondents they have admitted that the suit has not been filed for seeking declaration against these two persons for granting general power of attorney in favour of these persons hence when these two persons have admittedly expired, the proceedings, according to him, have to be abated, which aspect has totally been ignored by the learned Single Judge which needs to be considered in the instant High Court Appeal. He further stated that whatever action was taken by the deceased persons was in their individual capacity and hence no right survives after their death. He stated that no misappropriation of any fund/amount has been attributed against the said persons. He also stated that the suit does not concern any financial implication or the suit, is not concerning a money matter. He stated that the case-laws relied upon by the learned Single Judge are totally irrelevant and have no bearing on the suit. He, in the end, relied upon the decision given in the case of Ali Muhammad Mirza and others v. Mst. Sardaran and others (PLD 2004 Supreme Court 185).
3. Mr. Mohamed Vawda Advocate has appeared on behalf of the respondents Nos.1 to 7 and stated that a suit for declaration, cancellation of documents, possession, permanent injunction and recovery of Rs.54,75,000/- was filed against the defendants in Suit No.73 of 2012 in which the above named persons have been arrayed as defendants Nos.4 and 5. He stated that these persons were a proper and necessary party. He stated that it has been averred in the suit that these two persons have sold out the property bearing No.F-176, measuring 0.50 acre, SITE, Karachi in an illegal manner which requires recording of evidence etc. According to him, even after the death of a person right to sue survives and no abatement could be given until and unless the matter is finally decided. He stated that this High Court Appeal is premature, misconceived and not maintainable, as the legal heirs of above named two persons have to participate in the suit proceedings, lead evidence and to produce such documents to prove the innocence of the above named two persons. He, therefore, submitted that this High Court Appeal is not maintainable and is liable to be dismissed with cost.
4. Nobody is in attendance on behalf of the respondents Nos.8 to 11.
5. We have heard both the learned counsel at considerable length and have also perused the record and the decision relied upon by the learned counsel for the appellants.
6. The record reveals that the Suit No. 73 of 2012 was filed by the respondents Nos.1 to 7 against the present appellants as well as respondents Nos.8 to 11 for declaration, cancellation of documents, permanent injunction etc. The respondents Nos.1 to 7 have claimed to be the owner of Plot No.F-176, SITE, Karachi, which they acquired by way of inheritance from late Syed Muhammad Asim son of late Syed Muhammad Qasim, who died in Karachi on 05.12.1990. The said respondents since were Indian national appointed the deceased persons as their attorneys vide Power of Attorney dated 02.01.1991. It was the claim of the respondents that they revoked the Power of Attorney vide revocation deed dated 21.07.2006, however, subsequently it was revealed to the respondents Nos.1 to 7 that when they visited the office of the respondent No.11, they came to know that the said property has already been transferred and thereafter the suit bearing No. 73 of 2012 was filed. The deceased appellant, namely, Syed Jameel Ahsan had expired on 08.10.2012, which is prior in time to the filing of the suit, whereas, Syed Shan Nazir Ahsan expired on 23.08.2013 and thereafter the legal heirs of the above named two persons moved the present application on the ground that since the declaration sought against them was personal in nature which stands abated with their deaths, hence, the order of the learned Single Judge is not in accordance with law in the light of the grounds and submissions made above by the learned counsel for the appellants .
7. It is a settled proposition of law that "actio personalis moritur cum persona" which means "personal right of action dies with the person." If the above proposition of law is applied to the instant case it would be seen that the suit for declaration, cancellation of documents, possession, permanent injunction was filed, among other prayers, to declare the acts of the appellants agreeing to sell, transfer and assign the suit property in favour of the respondents Nos. 8 and 9 to be null and void, meaning thereby that the grievance of the respondents Nos. 1 to 7 in the suit, in which they are the plaintiffs, is against the very act of the deceased persons for selling and transferring the suit property without having proper legal authority. Now the question arises whether the deceased persons had the authority or not or whether the power of attorney or sub-attorney, as the case may be, given to these persons was revoked or was subsisting or was in field or in vogue requires evidence, examination of documents and taking into consideration other ancillary aspects, which could only be done after examination of the case in detail which is pending in the above referred suit. We do not find any merit in the submissions made by learned counsel for the appellants that the learned Single Judge has erred in coming to the conclusion that some misappropriation has been done by the deceased persons. The term misappropriation used by the learned Single Judge is with regard to misuse of either power of attorney or their powers as a sub- attorney and not with regard to any involvement of any misappropriation of any funds. Furthermore, if for arguments sake, if one comes to the conclusion that learned Single Judge has erred in using the word misappropriation that would, in our view, not change the nature of the suit which clearly stipulates that the same was filed for declaration and cancellation of documents, possession and permanent injunction. Hence, we, at this premature stage, cannot endorse the submission of the learned counsel for the appellants that after their death proceedings may be abated or their legal heirs may be absolved from participating in the suit proceedings in any manner.
8. It may further be observed that if after leading the evidence and furnishing the documents etc. the legal heirs of the deceased persons are able to prove that either the deceased persons have no responsibility, duty or liability in respect of the above matter of any role in the selling/transfer of the suit property, they would be absolved in accordance with law and hence the present apprehension shown by the learned counsel for the appellants, as stated above, appears to be not only premature but also misconceived.
9. We also do not find any force in the submission made by the learned counsel for the appellants that the liability/responsibility of the deceased persons was in their personal capacity and the right to sue does not survive after their death. Firstly, it is clarified that the matter between the deceased appellants and the respondents Nos.1 to 7 is neither a matter of money consideration nor a matter which in any manner could be referable to their individuality. The matter, as noted above, pertains to their alleged misuse of the authority as the attorney or sub-attorney, as the case may be, in respect of the property which is subsisting, hence, in our view, the application filed under Order XXII, Rule I, C.P.C. was rightly dismissed by the learned Single Judge by categorically observing that the matter pertains to a right of property rather than a right of individual and hence, until and unless the said right is finally determined, the deceased cannot be abated from the above proceedings and their legal heirs have to participate in the proceedings to enable the learned Single Judge to reach to a definite conclusion.
10. We also do not find any merit in the submissions made by the learned counsel for the appellants that since deceased persons were not in possession of the property; hence, the matter would not be executable. This argument of the' learned counsel also appears to be quite premature as it would only be after the decision given by the learned Single Judge in the matter that whether the order is executable or not and hence before any decision in the field right now the apprehension of the learned counsel for the appellants does not merit consideration, since in the instant matter parties are still required to lead evidence and the matter is yet to be decided between the parties, hence this objection of the learned counsel for the appellants also does not worth consideration and is hereby repelled.
11. It is also a settled proposition of law that an action could be abated on a death of a party but cause of action survives. In the instant case, as noted above, the cause of action is the transfer of the property, which, in our view, is very much alive and surviving and could only be decided after leading of the evidence by the parties and in no way could be considered to have been abated on the death of the deceased persons, when we have come to the irresistible conclusion that the matter does not pertain to the individuality of these persons but the cause of action is with regard to a property and its selling, transfer etc. Had this case been a case of personal individuality or personal injury, the position would have been somewhat different but we are afraid that this is not the position in the case bearing Suit No. 73 of 2012. The decision of the Hon'ble Supreme Court relied upon by the learned counsel for the appellants, in a way, supports the view of the respondents Nos.1 to 7 rather than supporting the case of the appellants, as it was decided by the Hon'ble Apex Court that in case of survival of right to sue the suit does not abate on a death of a party.
12. We, therefore, in view of the facts and observations made above, do not find any merit in the instant High Court Appeal, which stands dismissed. These are the reasons of our short dated 25.03.2019.