The petition is addressed against an order of learned Sub-Judge, Dhirkot, passed on October 30,1989, whereby prayer of the petitioners to declare abatement of suit of Ghulam Mustafa Khan, was declined.
2. Muhammad Yasin khan deceased, ancestor of the petitioners, brought a suit for declaration and perpetual injunction by claiming adverse possession over the suit land measuring 3 kanals 13 merlas, including the built-up property, comprising Survey No.1309, situate in village Sehlian Dhoondan Tehsil Dhirkot, against Mir Haider Khan and others, including Ghulam Mustafa Khan, respondent, on August 2, 1973. Ghulam Mustafa Khan brought a counter-suit for possession in respect of the same land, on March 30, 1974. Thus, in both the suits, possession in respect of the same land, on March 30, 1974. Thus, in both the suits, the parties and the subject of dispute were common. The trial Court consolidated both the suits and started proceedings in the suit of Ghulam Mustafa Khan. Muhammad Yasin Khan died on November 4, 1987. An application by Aurangzab Khan and others, his legal heirs (present petitioners) to implead them party in the suit, was moved on December 9, 1987. The application remained on the file of the Court when on May 25, 1988, attention of the Court was invited towards it. Thus, the Court fixed June 30, for proper orders. That was the stage of evidence of Ghulam Mustafa Khan, plaintiff in the counter-suit. An objection was also raised on that date of hearing, seeking dismissal of the suit of Ghulam Mustafa Khan, due to abatement. It was suggested that on account of failure of Ghulam Mustafa Khan to implead the legal heirs of Muhammad Yasin Khan deceased, within time, the suit had abated. It was further explained that in absence of application for setting aside the abatement, the suit could not continue. On this, Ghulam Mustafa Khan moved a formal application on June 30, 1988, to implead the legal heirs of Muhammad Yasin Khan. The application was opposed on the ground, among others, of limitation.
3. The learned Sub-Judge arrived at the conclusion that in presence of the previous application by Aurangzeb and others, in the counter-suit instituted by Muhammad Yasin deceased agianst Guulam Mustafa Khan, no formal application in the counter-suit was essential. In view of the aforesaid position, the learned Sub-Judge declined to dismiss the suit of Ghulam Mustafa on the ground of abatement.
4. Mr. Abdul Rauf Abbasi, the learned Counsel for the petitioners, pointed out that respondent failed to implead the legal heirs of the deceased defendant in time, as such the abatement of the suit had occurred. Moreover, there was no move on the part of plaintiff/respondent to seek setting aside of the abatement. In such situation, despite presence of the legal representatives before the Court, in other case, the suit of the respondent could not proceed. The contention was opposed by Raja Sher Muhammad Khan, the learned counsel representing the respondent, who argued that once the legal heirs of the deceased were arrayed party in one of the suits, no second formal application was essential to implead them party. The learned Counsel cited 1970 SCMR 554, PLD 1975 Karachi 530, 1976 SCMR 418 and an unreported case of this Court titled 'Abdul Aziz v. Mst.
Babu Jan and others' recorded by Mr. Justice Abdul Ghafoor, J (as he then was) on October 22, 1986.
5. It is well-accepted rule of law that no section can be brought against a dead person. Likewise when one of the parties died during the pendency of an action, unless the legal heirs or successors-in-interest of such person are arrayed in the proceedings, action cannot continue. On this principle, it is enjoined under the provisions of Order 22 of the Code that when there is sole defendant who dies, unless his legal heirs are brought on record within statutory period, the suit cannot proceed against a dead person. It is mandatory that the legal heirs of the adjudicate upon the controversy raised before it conclusively and effectually. The obvious object of these provisions of law is to decide an action by providing an opportunity of hearing to the parties whose interest or right was in dispute, as that the party was not condemned unheard.
6. In the present case, it is noticed that the parties in both the suits were common and the subject of dispute (land and built-up property) was also common. The controversies raised in both the suits, again, were identical. In such situation, it has to be accepted that impleading of legal heirs of the deceased part in either of the suits by either of the parties, would serve the purpose and satisfy the requirement of law as contemplated under Order 22 of the Code. This is so as once the legal heirs of the deceased appeared on their own in the Court and were impleaded in the proceedings, though in their own suit, the obligation on the opposite party to formally implead them in the counter-suit, was completely fulfilled. As they were already before the Court, in one of the suits, there was no need to make a formal application to substitute them in the other suit. There was only a technical requirement of entering their name, also defendants, in the counter-plaint. That could have been done at any time, at the request of the plaintiff or by the direction of the Courts.
7. Mr. Justice Dorab Patel, as member of Division Bench of Karachi High Court, resolved the proposition in `Inam Nabi Pardesi's case (PLD 1975 Karachi 530) in affirmation of the aforesaid view of this Court. In that case, two separate Letters Patent Appeals were addressed against a common judgment of Single Judge on the original side of the High Court. Both the appeals were consolidated and were being heard together. Respondent (in both the appeals), Dr. Maj. Syed Ahmed Hassan died during the pendency of the appeals. In one of the appeals his legal heirs were impleaded within time. In second appeal, the appellant, however, omitted to implead the legal heirs in time. An identical objection was raised that the appeal in which the legal heirs were not impleaded within time, was liable to be dismissed, as having been abated. The objection was repelled. The learned Judge by following the dictum recorded in Ghulam Abbas's case (1909 SC M R 257) and Haq Nawaz's case (1970 SCMR 554) observed that the application for substitution of legal heirs of the respondent in one of the appeals was sufficient compliance of the law. It was held that by impleading the legal heirs in one of the appeals, compliance was satisfied, as both the appeals arose out of common judgment of the Court.
8. The aforesaid authorities of the Supreme Court referred to by the learned Judge of the Karachi High Court fully approved the contention of Mr. Justice Dorab Patel as primarily, the legal heirs of the deceased respondent having been impleaded in one of the appeals, represented their interest in the subject of dispute in both the appeals in their capacity as party. Thus, the object of law, as postulated under Order 22 of the Code, was achieved.
9. In the present case, the learned Sub-Judge has rightly turned down the objection. The legal heirs of Muhammad Yasin Khan deceased when appeared
9. In the present case, the learned Sub-Judge has rightly turned down the objection. The legal heirs of Muhammad Yasin Khan deceased when appeared voluntarily by moving the application in the suit instituted by their ancestor, they represented their interest in the property, the common subject of dispute in both the suits.
There is no force in the petition. It is, therefore, dismissed. No order as to costs. The parties are directed to appear before the learned Sub-Judge, Dhirkot, on June 25, 1990::