MRS. FAKHAR UN NISA KHOKHAR, J.--- Brief facts of the instant Civil Revision are that during the pendency of appeal Muhammad Hayat respondent died. A.I Ahmad son of Muhammad Hayat was made party in the amended memo of appeal. Proclamation was issued but A.I Ahmad did not appear so, the respondents Muhammad Sharif, A.I Muhammad, Atta Muhammad, Soobe Khan and Muhammad Nawaz brothers of the deceased moved an application on 27.11.1996 that A.I Ahmad son of Muhammad Hayat is untraceable for the last 14 years, therefore, they being successors-in-interest of the deceased Muhammad Hayat be impleaded as party in the amended memo of appeal. This application was contested by the petitioner on the reasons that A.I Ahmad being son of Muhammad Hayat deceased has been impleaded as successor in-interest in the memo of appeal and in the presence of A.I Ahmad son of Muhammad Hayat deceased, respondents are not heirs of deceased, therefore, they cannot be impleaded as party. Learned appellate Court vide order dated 28.7.1997 accepted the application and directed the appellant to file amended memo of parties impleading the brothers of deceased as legal heirs. This order dated 28.7.1997 passed by the learned appellate Court is under challenge of the instant Civil Revision.
2. Arguments advanced by learned counsel for the petitioner are that the learned appellate Court failed to exercise jurisdiction as without an inquiry and proof of missing of son of the respondent, he has impleaded respondents No. 2 to 6 as party to the appeal. Unless and until respondents No. 2 to 6 become the legal heirs of Muhammad Hayat deceased, they do not have any right to move any application for being impleaded as party. Specially in the circumstances, when no proof with regard to the death of Hayat's son has been produced. There is no denial to the fact that All Ahmad real son of deceased Muhammad Hayat the entire property has devolved upon him and no property has been transferred in the name of respondents No. 2 and 3, therefore, neither they are necessary nor proper party, therefore, the application to the impleaded as party was premature.
3. Learned counsel for the respondents argued that respondents/applicants have given an affidavit that the whereabouts of A.I Ahmad are not known or traceable for the last 14 years and this very fact is not speakingly rebutted by the replication filed by the petitioner as no prejudice is caused to them nor they are aggrieved in case of the decision of the appeal. Infact a suit for declaration and permanent injunction was filed by the petitioner which was dismissed on 21.12.1976, an appeal was filed against the same which was remanded on 19.2.1983. This suit was again dismissed on 14.10.1987, an appeal was filed which was accepted on 21.6.1990, additional issues were formulated and the case was remanded. Muhammad Hayat tiled Civil Revision No. 1619/90 which was accepted on 17.10.1992 by this Court. Order of remand was set aside and appeal was sent to the learned appellate Court to be decided on merits and during pendency of appeal, Muhammad Hayat has died.
4. I have heard the learned counsel for the parties and carefully perused the order of the learned appellate Court. Proclamation was issued y the learned appellate Court but A.I Ahmad did not appear. Under Order XII Rule I CPC, right to sue means the right to seek the same relief which e deceased party was seeking at the time of death of such party. The legal representatives merely to continue that suit and it is the original parties' right and disabilities which are to be considered by the Subordinate Courts. order XXII Rule 4 (1) discloses:- "Where one of two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants alone or a sole defendant or sole surviving defendant dies and the right to sue survives, the Court, on an application made in the behalf, shall cause the legal representatives of the deceased defendant to be made a party and shall proceed with the suit".
Since Muhammad Hayat deceased was a respondent in the appeal, therefore, the appellant in no way is aggrieved by virtue of acceptance of application for impleading the respondents as party as A.I Ahmad is very much in the memo of appeal, therefore, no interference at the stage is needed. Revision petition is dismissed with no order as to costs.