The petitioners, alongwith Muhammad Tawakkal, the predecessor in interest of the respondents Nos.2 to 11, purchased the land measuring 76 Kanals and 4 Marlas, situated in Chak No,128/GB, Tehsil Chiniot, District Jhang, from Mst. Shah Begum, through a sale mutation sanctioned on 21-12- 1998. Respondent No,1, on 13-1-1999, brought a suit for preemption, challenging the above sale, in which, the petitioners and Muhammad Tawakkal, were impleaded as the defendants. The petitioner/defendants moved an application under Order I, Rule 10, C.P.C, seeking the deletion of the name of Muhammad Tawakkal from the array of the parties, on the ground that Tawakkal, had died on 7-8-1997 i,e, before the institution of the suit, therefore, the suit against a dead person was nullity in the eyes of law; on this application, the learned Civil Judge, through the impugned order dated 23-1-2001, deleted the name of Muhammad Tawakkal, but at the same time, directed the plaintiff to implead the legal heirs of the deceased defendant. It is this second part of the order by which, the petitioners felt aggrieved and was challenged in revision, but without any success.
Hence this petition.
2. Learned counsel for the petitioners, by relying upon Capt. Shahid Saleem Lone, etc. v. Ata-ur- Rehman etc. (1985 CLC 2555), and Hafiz Brothers (Pvt.) Ltd. And others v. Messrs Pakistan Industrial Credit and Investment Corporation Ltd. (2001 SCMR 1), states that the suit, instituted against a dead person is nullity in the eyes of law, and therefore, the same should have been dismissed.
3. To controvert the above, the learned counsel for respondent No,1, has argued that the suit against the only defendant, who was dead at the time of the institution of the suit, may be nullity in the eyes of law and any decree passed, without impleading the legal heirs of the deceased defendant may suffer from the same vice. But, where, there are more than one defendants and one of them had died prior to the filing of the suit, the suit, at the most qua the deceased defendant, was defective, which defect could be cured by bringing on record his legal heirs, and the suit in such an eventuality was not a nullity in toto. In support of his contentions, he has relied upon Nabi Bakhsh v. Malik Muhammad Akram Settlement Commissioner and others (PLD 1969 Lahore 880), and Muhammad Yousaf and 3 others v. Khan Bahadur through Legal Heirs (1992 SCMR 2334).
4. I have heard the learned counsel for the parties. Obviously, if a suit has been filed against the only defendant, who was dead at the time of the institution, such suit shall be still born, non- existent, and a nullity in the eyes of law, therefore, it could not be merely defective and thus, could not be revived by impleading the legal heirs of the deceased defendants. The plaintiff, in such a situation, subject to law, may have the option to bring a fresh suit against the heirs on the basis of the same cause of action. But, this rule shall not be applicable in a case, where the suit has been instituted against more than one defendants and one of them was dead at the relevant time. The suit shall not be nullity in totality, but would be validly instituted against the living defendants, however, it would be defective qua the deceased party, which defect shall be curable by the plaintiff, bringing on record the heirs of the deceased defendant. To support this view, reliAnce can be placed on the following judgments:-- Prim Pala Mul-Narain Mal v. Fauja Singh (AIR 1926 Lahore 153). Roop Chand v. Sardar Khan and others (AIR 1928 Lahore 359). Ghulam Qadir Khan v. Ghulam Hussain and others (AIR 1937 Lahore 794). Nabi Baldish v. Malik Muhammad Akram, Settlement Commissioner and others (PLD 1969 Lahore 880), and The Province of East Pakistan v. Major Nawab Khawaja Hasan Askary and others (PLD 1971 SC 82). Resultantly, in the facts and circumstances of the case, the learned courts below have rightly proceeded to allow the implement of legal heirs of the deceased defendant. This petition thus, has no force and is hereby dismissed.