' This Constitution petition under Article 199 of the Constitution of Pakistan, 1973, by Rajab, is directed against the order, dated 3-5-1992 whereby the learned District Judge, Jhang dismissed the revision petition filed by the petitioner and maintained the order pasped by the learned Civil Judge, Shorkot, dated 3-3-1992 rejecting the application for impleadment of legal heirs of respondent No,7, Muhammad.
2. The relevant facts wet that the petitioner had instituted a suit for specific performance in respect of agreement of sale regarding the suit property against respondents No,1 to 9. The suit was contested. In the written statement it was pleaded that Muhammad, respondent No,7 had died before the. Institution of the suit and, therefore, the suit was filed against a dead person. On the divergent pleadings of the parties, issues were framed. On 14-10-1991 the petitioner submitted an application for impleadment of legal heirs of respondent No,7. This application was resisted. After hearing the parties, the learned original Court rejected the application on 3-3-1992 by holding that the petitioner had instituted the suit against a dead person and the same to his extent had become barred by time. Feeling aggrieved with this order the petitioner preferred a revision petition which was dismissed by the learned District Judge, Jhang vide impugned order, dated 5- 3-1992.
3. In disputing the validity/correctness of the orders of the Courts below, the learned counsel for the petitioner contended that as far as the question pertaining to date of death of respondent No,7 was concerned, this was in issue between the. Parties and the original Court was required to determine that issue (on the basis of evidence adduced by the parties. In so far the question whether the legal heirs of respondent No,7 were necessary party, there was no dispute that they were necessary parties. On this view of the matter it was argued that the order passed by the first Court and affirmed by the revisional Court be set aside. On the contrary learned counsel for the respondent, supported the impugned order.
4. I have heard the learned counsel for the parties at considerable length. From the above, narration it is clear that respondent No,7 was impleaded as party; that the objection was taken by the contesting respondents that respondent No,7 had died before the institution of the suit and the suit was improperly constituted; that on these pleadings necessary issue was framed with respect to the demise of respondent .On these facts it is also clear that the legal heirs of respondent No,7 are necessary parties and the suit could not be adjudicated in absence of legal heirs of respondent No,7. Upon these facts I am clear in my mind that legal heirs of respondent No,7 are necessary parties and in their absence the suit cannot be decided. The question whether respondent No,7 died before the institution of suit or after institution of the suit is a question which is to be decided by the primary Court on the basis of evidence adduced by the parties. The two questions in my view are necessarily distinct and unconnected with each other. The learned trial Court erred in law in rejecting the application for bringing on record the legal heirs of respondent No,7. Revisional Court also committed error while rejecting the revision petition. The decision of the primary Court as well as the decision of revisional Court suffer from an error of law apparent on the face of record. Reference be made to Razia Begum v. Iqbal Begum PLD 1957 Lah. 1040 and Siraj Din v. Additional District Judge 1986 CLC 975. The impugned orders, therefore, cannot sustain. These are, therefore, declared to have been passed without any lawful authority.
5. In the light of whatever has been stated above this Constitution petition is accepted. The impugned orders are hereby set aside. The application filed by the petitioner for impleading the legal heirs of respondent No,7 is allowed. The petitioner shall submit amended plaint within three weeks of this order.
6. As the suit has been pending adjudication for a long time the learned trial Court shall decide the suit within a period of nine months commencing from the receipt of this order. There shall be no order as to costs.