' This writ petition arises out of a civil suit pending in the Court of learned Senior Civil Judge, Lahore in which the trial Court has rejected the application moved by the present petitioners for rejection of the plaint under Order VII, rule 11, and on the other hand has allowed amendment under Order VI, rule 17, C.P.C. on the request of the plaintiffs.
2. The suit relates to two plots of land; one measuring 11 Marlas and 2191 sq. ft. located in Sanda Kalan and the other measuring 12 Marlas located in Rajgarh, Lahore. Atta-ur-Rehman plaintiff now respondent No.1 brought a suit against late Abdul Saleem Lone, his son Capt. Shahid Saleem Lone, who is now one of the petitioners and his brother M.A. Lone, now respondent No.2. In the suit it was prayed "that a decree for specific performance of the agreement of sale, dated 3rd March, 1967 with respect to the plots in dispute may kindly be granted in favour of the plaintiff and against the defendants asking defendant No.1 to execute the registered sale-deed in respect of these two plots, with a consequential relief that the defendants may kindly be permanently restrained from interfering with the lawful possession of the plus in dispute and alienating the same in favour of a 3rd party." According to the agreement the period of ten years was provided for the completion of the sale-deed. The suit was brought on 21-1-1980 within limitation as the limitation was to expire in March 1980. Abdul Saleem Lone had died on 2-10-1976 and according to the learned counsel for the petitioners this fact was brought to the notice of the Court by the petitioners on 28-1-1980 but the plaintiffs took no steps to bring on record the legal representatives of late Abdul Saleem Lone.
On 3-4-1980 petitioner No.1 Capt. Shahid Saleem moved an application under Order VII, rule 11, C.P.C. for rejection of the plaint on the ground that the suit could not proceed against a dead person, his late father, and since only an injunction had been prayed for against Capt. Shahid Saleem, the suit as a whole should be thrown out. This application was replied to on 17-4-1980 and on 9-6-1981 the plaintiff finally moved an application for amendment of the plaint which application together with the application, dated 3-4-1980 under Order VII, rule 11, C.P.C. was disposed of by a single order of the trial Court on 27-7-1981. The application under Order VII, rule 11, was rejected and the permission to amend the plaint was granted. The remaining legal heirs of late Abdul Saleem namely, Mst Hajran Saleem, his widow, and Mst. Salma Rasheed and Mst. Asmat Sultana his daughters were directed to be impleaded as parties to the proceedings. Mst. Salma Rasheed has now joined her brother Capt. Shahid Saleem as petitioner in the writ petition while Mst.
Hajran Saleem and Mst. Asmat Sultana have been named as respondents. These two ladies have been served but no body has appeared on their behalf. The learned counsel for Atta-ur-Rehman plaintiff, now appearing as respondent No.1 has adopted the arguments advanced by the learned counsel for M.A. Lone, respondent brother of late Abdul Saleem.
2. The case of the petitioners is that there could be no suit against a dead person and that the trial Court had no jurisdiction to permit the impleading of the legal representatives of a dead person after the expiry of period of limitation. According to the learned counsel for the petitioners the impleading of the widow and the two daughters of late Abdul Saleem Lone was thus without lawful authority. It has also been argued that the suit cannot proceed even against the remaining defendants as only consequential relief of seeking a restraint order against the remaining two defendants has been prayed for, and, since the main relief cannot be granted against the dead person, the suit cannot proceed even against the remaining defendants. This argument, however, is contrary to the concession made by the learned counsel before this Court on 15-3-1982 when the writ petition was admitted to regular hearing. He had clearly conceded on that date that the suit could proceed against other defendants.
3. There is ample authority to show that there can be no suit against a dead person as it would be a nullity. The learned counsel has referred me to a large number of judgments of the superior Courts in support of his contention. The learned counsel for the respondents, on the other hand, relies on the amended provisions of sub-rule (3) of rule 4 of Order XXII in order to show that the law has undergone a change since the Law Reforms Ordinance of 1972 amended the above- mentioned rules. Rule 4 provides for the procedure in case of death of one of several defendants or of sole defendent. Sub-rule (3) reads as follows: "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."
4. The learned counsel argues that under the amended law judgment can be passed against a dead person. From this he also draws an analogy that a suit can also be brought against a dead per son. I am afraid, I am unable to accept this contention, of the learned counsel. The suit against a dead person is a category distinguishable from a judgment against the dead person in the circumstances provided A for in sub-rule (3) above. While under this provision a lawful judgment can be passed against a dead person where no intimation has been given about his death which took place during the course of the proceedings, the suit against a dead person is a nullity. The analogy drawn by the learned counsel, therefore, has no basis. The learned counsel has also referred to the case of Nabi Bakhsh v. Malik Muhammad Akram, Settlement Commissioner and others PLD 1969 Lah. 880 in order to show that the mere fact that the legal heirs of one of the deceased persons were brought on record at a later stage, is not enough to hold that the petition suffered from laches. This view was, however, expressed by the High Court in exercise of its constitutional jurisdiction when the Court has power to condone the laches while in the present case provisions of Order I, rule 10 of the C.P.C. have to be applied, in the light of the limitation provided for, under the Limitation Act. I am quite clear in my mind, therefore, that in the presen proceedings the suit against late Abdul Saleem was a nullity. As regards the order permitting the impleading of the legal representatives of lat Abdul Saleem there is a long list of authorities to support the proposition that even the legal representatives of a dead person cannot be brought B on record after the expiry of period of limitation. The case of Haji Wahab Ali Rani and others v.
Khadam Ali and others PLD 1963 Dace 364 can be referred to with advantage. Similar view was expressed in the case of Shuja ul Mulk v. Firm Abdul Ghafoor Abdul Qadim PLD 1964 (W.P.) Pesh.
110. The learned counsel for the petitioners has made a particular reference to the case of Rampartab Brijmohandas and others v. Gaurishankar Kashiram AIR 1924 Boni. 109 as the nullity of proceedings against a dead person were held to extend, to the summonses to such a person and even to allowing the suit to proceed. Considering the law referred to above I am quite clear in my mind that in the present case the permission to amend the plaint so as to permit the impleading of widow and the two daughters of late Abdul Saleem was granted without lawful authority.
5. The contention that the suit cannot proceed at all againt the remaining defendants is, however, not acceptable. Whether a restraint order has been prayed for as a consequential relief of the decree for specific performance of the agreement or can be prayed for independently of the first relief, is a matter, which is triable and the suit, therefore can proceed against the remaining defendants.
A preliminary objection was taken by the learned counsel for the respondents regarding the maintainability of a writ petition in the circumstances of the present case. A reference was made to the case of Adalat Khan v. Amar Rizwan and 5 others NLR 1979 Civil (Lah.) 659, but in the case of Dr. Sajjad Ahmad and another v. Dr. Muhammad Bashir and 10 others PLD 1979 Lah. 304, a Division Bench of this Court has held that an order passed in revision by the District Court is not immune from being agitated in a constitutional petition. It was further held that it would depend on the circumstances of each case, whether this jurisdiction should or should not be exercised by the High Court. It is clear, therefore, that a writ petition is competent against the orders passed in revision by the District Court under the amended provisions of the C.P.C. Whether the present case qualifies for exercise of this jurisdiction will depend on the circumstances of this case. In Dr. Sajjad Ahmad's case writ petitions against revisional orders permitting framing of separate issues were dismissed on the ground that an alternate remedy was available by way of appeal in es are passed against the petitioners in those cases. In the present case no such remedy is available as the orders passed in revision, unlawful as they are, attained finality and cannot be corrected except by the exercise of constitutional jurisdiction of the High Court. I have, therefore, no hesitation in rejecting the contention of the learned counsel for the respondents that the writ petition is not maintainable.
6. As a result of the above discussion the orders passed by the trial Court, dated 27-7-1981 and of the revisional Court, dated 27-1-1982 to the extent that they permit impleading of Mst. Hajran Saleem widow and Mst. Selma Rasheed and Mst. Asmat Sultana two daughters of late Abdul Saleem Lone are declared to be of no legal effect. The suit against the remaining defendants, however, may continue. The writ petition is disposed of in these terms. There shall be no order as to costs.
Writ issued.