SARDAR SAID MUHAMMAD KHAN, C.J.--- This appeal has been directed against the order of the High Court, dated 26-11-1996 whereby the revision petition filed by the appellant, herein was dismissed.
2. The brief facts of the case are that a declaratory suit was filed by the appellant in the Court of Sub-Judge, Rawalakot. During the pendency of the suit Said Muhammad, one of the defendants, died. According to the appellant his legal representatives were brought on the record well before the destruction of the Court record by fire. According to the appellant, when the record was reconstructed after the incident of fire, the name of Said Muhammad, deceased-- defendant, was written in the line of respondents by oversight. Therefore, the appellant filed an application on 15-9- 1991 seeking the permission to correct the plaint by deleting the name of Said Muhammad and arraying his legal representatives as defendants. The objections were filed to the said application by the defendants wherein it was contended that Said Muhammad, defendant, had died in August, 1990 but no application for bringing his legal representatives on the record was submitted by the plaintiff-appellant within the period of limitation. Thus, it was prayed that the application by the plaintiff for making so-called correction should be dismissed. The trial Court, after hearing the arguments, rejected the application of the plaintiff observing that there was another application on the record which was purported to have been submitted by the plaintiff-appellant through his counsel before the Sub-Judge on 12-12-1990 wherein it was admitted that Said Muhammad had 'died on 18-8-1990 and his legal representatives might be brought on the record. The learned Sub- Judge dismissed the application observing that in view of the , aforesaid. Admission, the application for so-called correction of the plaint by substituting the names of the legal representatives of Said Muhammad was not tenable and dismissed the same. A revision petition was filed by the plaintiff --appellant in the High Court but that was also dismissed.
3. We have heard the arguments and gone through the record. It has been contended by Syed Muhammad Siddique Shah, Advocate, the learned counsel for the appellant, that it was incumbent upon the trial Court to inquire into the mattes as to whether the plaintiff-appellant had brought the legal representatives of Said Muhammad on record prior to its destruction by fire; and whether the name of Said Muhammad, defendant in the line of defendants was mentioned by mistake or oversight. The learned counsel has argued that even the defendants in their objections have admitted that no application was submitted by the appellant for bringing the legal representatives on the record prior to the application, dated 15-9-1991. Thus, according to the learned counsel for the appellant, it was not open for the defendants to take the contradictory stands that the application, dated 12-12-1990 was filed by the plaintiff through his counsel. The learned counsel has also argued that the so-called application, dated 12-12-1990 is not signed by Mr. Muhammad Hussain nor Mr. Abdul Razzaq, the counsel for the plaintiff-appellant; rather the same appears to have been signed by someone else who was not counsel for the plaintiff-appellant. Therefore, the application, dated 12-12-1990 is of no legal consequence.
4. In reply, Sardar Muhammad Nawaz Khan, Advocate, the learned counsel for the respondents, has argued that no inquiry, as suggested by the learned counsel for the plaintiff-appellant, was prayed for before the trial Court or in the High Court. Thus, such an inquiry cannot be demanded at this stage.
5. We have given due consideration to the arguments raised at the Bar. An affidavit has also been filed in this Court by the plaintiff-appellant wherein he denies to have filed the application on 12-12- 1990. The perusal of the relevant orders of the trial Court as well as that of the High Court is indicative of the fact A that the sole ground which found favour with them in dismissing the application of the plaintiff-appellant was that he had previously submitted the application on 2- 12-1990 wherein he had admitted that Said Muhammad had died and his legal representatives might be brought on record, their view was that had the plaintiff-- appellant brought the legal representatives of Said Muhammad before the destruction of Court record by fire, he would not have submitted the application, dated 12-12-1990. It may be observed that in view of the fact that even the defendants did not take the stand in their objections filed to the application of the plaintiff-appellant for correction of the plaint that the plaintiff had submitted an A application earlier on 12-12-1990, seeking to bring the legal representatives of Said Muhammad on record.
Under these circumstances, we frame the following issues with the direction that the trial Court shall give an opportunity to the parties to lead the evidence in support and rebuttal of the same and decide the matter afresh according to law:-- (i)Whether the application, dated 12-12-1990 was submitted by Wali Muhammad, plaintiff- appellant, or his duly authorised agent? O.P.D.
(ii)Whether the plaintiff had brought the legal representatives of Said Muhammad, deceased, on record prior to the destruction of Court record by fire and it was due to oversight that Said Muhammad was shown as a defendant? O.P.P.
(i.e)Relief.