This revision petition filed under section 115, C.P.C. By Muhammad Aurangzeb Alamgir and one other is directed against the order dated 26-10-2002 of learned Additional District Judge-I, D.I. Khan whereby the application of respondent No. 17, herein for her impleadment to the revision petition was accepted.
2. The brief facts, giving rise to this revision petition, are that Malik Manzoor Ahmad, who is respondent No.1, herein, brought a suit against Mst. Feroza Begum (who is petitioner No.2 herein) and 16 others for the grant of a declaration to the effect that he and defendants Nos.4 to 17 are joint owners-in-possession to the extent of 3/4th share in the property as detailed in the head --note No. 1 and to the extent of 1/2 share as detailed in head-notes Nos.2 and 3 of the plaint while defendant No. 1 is owner of rest of the share, As such, she has got no power to gift away the entire property to defendant No.2 through two registered gift-deeds both dated 27-8-1995. In the alternate, the plaintiff prayed for possession through partition of the suit property. It was alleged in the plaint that the suit property originally belonged to Hafiz Ghulam Muhammad, the grandfather of the plaintiff and defendant No. 1 and on his death, it devolved on the fathers of the plaintiff and defendant No. 1. However, the father of defendant No. 1 died without a male issue before the death of Abdul Majeed, father of defendant No.3, accordingly, the plaintiff and defendants Nos.4 to 17 became owners to the extent of 3/4th share in the property as detailed in head-note No. 1 and to the extent of one half in the property as detailed in head-notes Nos.2 and 3. It was further alleged that as the father of defendant No.3, who is the granddaughter of the father of defendant No.1 died before the death of his father, as such, she could not inherit anything from her father but in order to avoid multiplicity of suits, she has been impleaded as a party to the suit.
3. Defendants Nos.1 and 2 contested this suit: They filed written statement. However, defendant No.3 did not contest the suit in spite of service. On the issues framed, the parties were allowed to produce evidence. On 16-4-2002, the case was fixed for the evidence of private witnesses of defendant Nos. 1 and 2. On that day, they produced d examined D.Ws. Muhammad Sadiq d Ghulam Qadir: However, before conclusion of their evidence, their other witness, who is marginal witness to gift-deeds, left the Court premises and could not be examined on account of which, the learned trial court closed the evidence of the defendant vide order dated 16-4-2002. They were aggrieved of the order of the learned trial Court and filed a revision petition. This revision petition was pending in the Court of learned Additional District Judge, D.I. Khan when in the meantime, the plaintiff filed an application that as by mistake he has not impleaded defendants Nos.4 to 17 to the revision and as they are necessary parties, they may be impleaded. In the meantime, the learned Revisional Court was informed that during the pendency of the revision, defendant No. 3 has died, on which, the plaintiff was directed to bring on record her legal heirs but he failed to do so within the 'specified time. Ultimately, the learned Revisional Court directed that her legal heirs observed through substituted service in the newspaper and on the appearance of the notice in daily 'Jihad', Peshawar, Mst. Musarat Parveen, who is respondent No. 17 herein, appeared and filed an application for her impleadment to the revision petition. After hearing the learned counsel for the parties, the learned Revisional Court, by an order dated 26-10-2002, not only allowed the application of the plaintiff for impleadment of defendants Nos.4 to 17 to the revision but it also allowed the application of respondent No. 17 for her impleadment, accordingly, she was added as party to the revision petition. Against this order of the Revisional Court, the plaintiff and defendant No.1 have filed the present revision petition.
4. I have heard the arguments of learned counsel for the parties and have also perused the record.
5. A preliminary objection was raised by learned counsel for respondent No. 17 that the impugned order, being interlocutory, is not revisable under section 115, C.P.C, However, this argument is without force. It is correct that previously there were two views. One view was that the term "case decided" appearing in section 115, C.P.C. Refers to final adjudication of whole case and the other view was that this term is to be understood in the broadest and most ordinary sense so as to include a part of the case or an issue or an interlocutory order but now the Honourable Supreme Court of Pakistan has clinged the issue in the case reported in 1992 SCM R 718 wherein it has been held that, "the expression "case" does not necessarily mean the decision of the entire case, it may be related to a decision on an interlocutory matter requiring; a judicial mind. The old view that an inter--locutory matter did not fall within the expression "case decided" was abandoned bar the High Court in Bibi Gur Dewi's case AIR 1943 Lah. 65 and the case cited by learned counsel for the agents is no longer good law. The order of the trial Judge was based on no materials and ex facie appear to be perverse. The learned Single fudge, therefore, could have interfered under section 115 of the Code.
See Bashir Ahmad v. Qaisar Ali Khan PLD 1973 SC 570. The preliminary objection of respondent No. 17 is, therefore, rejected.
6. Now coming to the merits of the case and by going through the materials on record, I find that the plaintiff has brought his suit for declaration and in the alternate, for possession through partition of the suit property on the basis of inheritance while on the other hand, the case of respondent No .17 is that she was the adopted daughter of defendant No.3 and the latter, during her lifetime, bequeathed her entire movable/ immovable property to her, on the basis of registered will-deed dated 1-7-1999, as such, she was necessary patty to the revision petition before the learned Additional District Judge and the impugned order is correct and calls for no interference.
However, this plea is without force. Admittedly, respondent No. 17 is not the real daughter of defendant No.3 and she does not fall within the purview of legal heirs as defined in section 2(11), C.P.C. For the reason that under this provision of law, two conditions must be fulfilled before a legal representative is allowed to defend the suit in place of original defendant, firstly; that the right to sue as disclosed in the plaint survives even after the death of an original defendant and secondly; that the legal representative of the deceased falls within the meaning of section 2(11) of C.P.C. But here in the present case, the right to sue does not survive to respondent No. 17 as her legal heir. For this conclusion, reliance can be placed on a decision of their Lordships of a Division Bench of Sindh High Court reported in 1990 CLC 404.
7. Besides, as already stated, claim of the plaintiff is based on inheritance while the claim of respondent No. 17 is based on will deed, the latter being quite a separate and distinct cause of action which does not fall within the expression "questions involved in the suit" appearing in rule 10(2) of Order 1, C.P.C., as such the plea raised by respondent No. 17 in defence cannot be taken in the present suit. In support of this view, reference could be made to a case reported in 1992 CLC 1718. The plea taken in defence by respondent No.17 being a separate and distinct cause of action can be taken in a separate suit by the respondent and the Court is informed at the bar that she has actually filed such a suit in respect of a part of the disputed property, as such, the impugned order of the learned Revisional Court is not maintainable in law.
8. Accordingly, on the acceptance of this revision petition, the impugned order dated 26-10-2002 of the learned Revisional Court is set aside and the name of respondent No.17 is deleted from the revision petition pending before the Revisional Court. The learned Revisional Court would now be required to decide the revision pending before against the impugned order dated 16-4-2002. There will be no order as to costs.