WIQAR AHMAD, J.- Through instant constitutional petition, petitioners have called in question judgment/order of learned Member Board of Revenue KP dated 20.10.2022 whereby he maintained order of Additional Commissioner Mardan Division, dated 27.4.2021 vide which application of petitioners under Section 12(2) CPC had been dismissed.
2. Facts as averred in the petition are that respondents filed an application for partition in respect of various khatas, situated in village Qasami, Tehsil Katlang, District Mardan, wherein predecessor- in-interest of present petitioners, namely, Rahim shah was a party who had given power of attorney to his legal heirs to represent him in the proceedings. During pendency of the proceeding, Rahim Shah died but his legal heirs were not brought on record to replace deceased Rahim Shah. During execution proceedings, when petitioners came to know about finality of said proceedings, they filed application under Section 12(2) CPC which was accepted by the AAC vide order 28.8.2020. Feeling aggrieved, respondents challenged same before Additional Deputy Commissioner Mardan who reversed the order of AAC vide order dated 25.11.2020 which order was maintained by the Additional Commissioner as well as Member Board of Revenue, Khyber Pakhtunkhwa. Instant petition was then filed by the petitioners praying for acceptance of their application filed under Section 12(2) C.P.C., meant for setting aside the partition proceedings initiated by the respondents.
3. I have heard arguments of learned counsel for parties and have gone through the record with their valuable assistance.
4. Perusal of record reveals that predecessor-in interest of the petitioners, namely Rahim Shah, was party in the original proceedings of partition and he was being represented by his son Muhabbat Shah as special attorney. He had subsequently died during pendency of the proceedings and his legal heirs had not been impleaded but the partition proceedings had been finalized after allowing partition application filed by respondents, vide order dated 10.1.2019 passed by Additional Assistant Commissioner/AC ls` Grade, Katlang. When said order passed therein had attained finality, then petitioners filed application under section 12(2) CPC for setting aside of the proceedings and subsequent orders, just because of the fact that legal heirs of Rahim Shah had not been impleaded in the application for partition. It is not denied that legal heirs of Rahim Shah were in knowledge. of pendency of the proceedings in his life time and his real son, namely, Muhabbat Shah, (who is also petitioner No.1 in the instant petition), was also representing him as special attorney. The question for determination in the instant proceedings was whether a person who is impleaded as a party in some proceedings, is duly noticed and dies during pendency of such proceedings at the original side or appellate or revisional forum and his legal heirs are not impleaded then orders passed in such proceedings (which had already attained finality), may subsequently be questioned on the only ground of non-impleading such legal heirs.
5. Cases of death, marriage and insolvency of parties were aimed to be regulated under Order- XXII CPC. Rule-I thereof was providing that where the right to sue survived a suit would not abate with death of plaintffor defendant. Rule-2 thereof was providing for a case where one of the plaintiff or defendant would die and the right to sue was surviving against the remaining defendant or defendants alone. In said case en entry to this said effect was required to be made and suit was then to be proceeded further. Rule-3 of Order-XMI was providing that where one of several plaintiffs died then legal heirs of such plaintiff should be impleaded but sub-rule-2 was providing that where no application was filed within time allowed by law then the court may proceed with the suit and any order made or judgment announced in such suit would have same effect and force as it has been made or pronounced before the death had taken place. Rule-4 was providing for a case where one of several defendants or sole defendant died. In said case, the procedure has been provided in sub-rules-I and 2 while consequences of not impleading has also been provided in sub-rules 3 and 4 thereof Said sub-rules were added subsequently by Ordinance No.12 of 1972. Rule 4 of Order-XXII is relevant for present case and same is also reproduced hereunder for ready reference:- "4. Procedure in case of death of one of several defendants or of sole defendant. (1) Where one of two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants alone I [,or on receipt of an intimation of the death of such defendant from the person nominated by him for that purpose under rule 13, Order VIII], or a sole defendant or sole surviving defendant dies and the right to sue survives, the Court ,on an application made in that behalf, shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit. (2) Any person so made a party may make any defence appropriate to his character as legal representative of the deceased defendant. 1 Ins. by the Law Reforms Ordinance, 1972 (12 of 1972), s. 2 and Sch. for the original rule 103. 2Sbus. ibid., s.2, for the original sub rule (2). Code of Civil Procedure, 1908 [1908 : V] Page 179 of 370 1 [(3) When 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]. 2 [(4) It shall not be necessary to substitute the legal representatives of any such defendant who has failed to file a written statement or has failed to appear and contest the suit at the hearing; and judgment may in such case be pronounced against the said defendant notwithstanding his death, and such judgment shall have the same force and effect as if had been pronounced before his death took place."
Sub-rules-3 and 4 of Rule-4 have been inserted with a particular aim and object. In the proceedings of nature like matter in hand there are normally numerous parties. It may happen that some of the numerous parties may die during proceedings and the applicant or petitioner do not have knowledge of their death. The proceedings is also being contested by the other parties and once same attained finality after a long run of litigation throughout all the forums then the legal heirs of deceased parties may turn up and file an application for re-opening the whole proceedings. Such re-opening of the proceedings would not only be effecting rights of successful parties in the litigation, in respect of their established rights but same would also be against the public policy because taking the matter in this way would leave the civil litigation unending in most of the cases. It was for suppressing this mischief that sub-rules-3 and 4 have been added to rule-4 of Order-XXII CPC. Sub-Rule-3 was expressly laying down 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 pronouncement in such suit would have same force and effect as if it had been pronounced before the death had taken place. If the original defendant is not served properly and the legal heirs also kept unaware of the proceedings then it would be a different case but in the case in hand it stood establish on record that son of the deceased (petitioner No.1) was fully aware of the proceedings in the partition application. Hon'ble Supreme Court of Pakistan while giving its judgment in the case of Sheikh Shahzad alias Fareed Ahmed Vs Mian Abdul Maieed and 2 others reported as 2007 SCMR 941, had, inter alia, held that after Promulgation of Law Reform Ordinance, 1972 the provision concerning abetment of civil causes had been deleted and thereafter legal heirs of any person dying during pendency of litigation would automatically become bound by the decision against their predecessor-in-interest, even without impleadment. Relevant observations of the Hon'ble Apex Court are also reproduced hereunder for ready:- "4. It is a known fact that the' provisions concerning abatement of civil causes have long been deleted from the Civil Procedure Code through Law Reforms Ordinance, 1972. Thereafter, the legal heirs of any person dying during the pendency of litigation automatically become bound by the decision against their predecessor-in-interest, even without impleadment. Thus, the judgment, dated 17-5-2001 would be binding on all the legal heirs of the deceased Sheikh Muhammad Ishaque provided they are the legal heirs. Sheikh Farid Ahmed alias Sheikh Shahzad, if happens to be the son of Sheikh Muhammad Ishaque, is bound by such decision and hence is a party directly affected by such judgment but without impleadment. He, therefore, is entitled to file a petition or appeal, as the case may be, against such judgment. In case of being a son, he is never a stranger to the proceedings."
Further reliance in this respect may also be placed on judgment of Hon'ble Lahore High Court rendered in the case of Ghulam Fatima Vs Dur Muhammad and others, reported as 2015 MLD 1169(Lahore) where the Hon'ble High Court, inter alia, held:- "6. As regards the authority of said counsel to plead the case on behalf of deceased Peeran Ditta before this Court on 8-3-2011, it is suffice to say that Peeran Ditta along with his four sons i.e. Ghulam Rasool, Ghulam Sarwar, Ghulam Mustafa and Ghulam Haider being unsuccessful defendants filed civil revision in his life time. The interest of all the defendants/revision petitioners was common. During the pendency of revision petition Peeran Ditta died. It is not the case of the applicants who are daughters of Peeran Ditta that their brothers had colluded with the plaintiffs/respondents of the revision petition meaning thereby that there was no occasion to misrepresent the facts/case before this Court at the time of final arguments of civil revision.
Notwithstanding the above, firstly, it was the obligation of the other revision petitioners, who were sons of Peeran Ditta, to bring on record the left over legal heirs of Peeran Ditta, that is, the applicants on record; secondly, it was the duty of the applicants to come forward and become a party in the revision petition; thirdly, other petitioners of civil revision were legal heirs of Peeran Ditta, deceased, therefore, this cannot be said that the order/judgment and decree were passed without impleading the legal heirs of Peeran Ditta. As stated above, it was a common interest of Peeran Ditta and other revision petitioners; and, other revision petitioners had contested the revision petition so no prejudice was caused to other revision petitioners and the applicants by the impugned order/judgment and decree. Lastly, the provisions of Order XXII, C.P.C., which are not applicable to revisional jurisdiction of this Court, have already been amended by the Law Reforms Ordinance, 1972, and if any of the petitioners, dies it does not abate the revision petition, hence the order, in the given circumstances, could be passed in the instant case without impleading the legal heirs of the deceased/Perran Ditta, as held in the case of Khan Sahib Khan Muhammad Saadat All Khan v. The Administrator Corporation of City of Lahore (PLD 1949 Lahore 541), Perdil and others v. Barkat and others (PLD 1953 Peshawar 14), Muhammad Sadiq v. Muhammad Sakhi (PLD 1989 SC 755) and Bashir Ahmad through L.Rs. v. Muhammad Hussain and others (2010 SCMR 822). Even otherwise, the revisional proceedings are always considered as proceedings between a higher Court and a lower Court. This Court after examining the record of the case dismissed the revision petition. The applicants have not alleged that the judgment and decree passed in C.R No.372-D/1996 suffer from misreading or non-reading of evidence. Thus, in the given circumstances, death of Peeran Ditta and invalidity of his power of attorney executed in favour of above said counsel was not fatal and, therefore, it is not a case of misrepresentation within the contemplation of section 12(2), C.P.C."
6. The learned Member-11, Board of Revenue, Khyber Pakhtunkhwa, in the impugned order dated 20.12.2022 in the instant case (while dismissing revision of petitioners) had dealt with matter in detail, relevant portion of which is also reproduced below for ready reference:- "From perusal of record of the case and arguments advanced at the bar, it reveals that the deceased Rahim Shah was well represented during court proceedings by his legal heirs and their share are being allotted, so the partition order cannot be reversed on the sole basis meaning thereby that the pleas of committing fraud was baseless. Deceased Rahim Shah during life time had given power of attorney to his legal heirs. After filing application for official partition by the present petitioner, legal formalities were completed and thereafter partition order was passed by the trial court. No illegality or irregularity was seen on record through which it could be presumed that the orders of the court below were unlawful."
6. On interpretation of Rule-4 Order-XXII CPC, this court has also reached the conclusion that non- impleadment of legal heirs of one of the deceased respondents would not vitiate the proceedings or resultant orders, in the case in hand.
7. In the light of above discussion, there seems to be no illegality or any violation of law which may render the impugned orders as unsustainable. Learned counsel for petitioners has also failed to point out any such infirmity in the impugned orders of the revenue hierarchy, which may warrant interference of this court in exercise of its constitutional jurisdiction. Thus finding no substance, this writ petition is dismissed.