1. Ghulam Hussain appellant herein brought a suit for declaration and possession in respect of land comprising Khasra Nos.5180 and 5111 situated in village Patoyan, Tehsil Barnala District Bhimber in the Court of Senior Civil Judge Bhimber on 4-10-1999. It was averred that the shrine known as "Khanqah Peer Mongawali" is situated in the aforesaid village. It was claimed that plaintiffs are Sajjada Nasheen (successors to Saint) of the said shrine from immemorial period. The land comprising Khasra Nos.3562, 3563, 5111 and 5180, in all measuring 59 Kanals 18 Marlas is the property of shrine and the plaintiffs as well 8 proforma respondents are the owners of the said land.
2. It was further averred that Auqaf Department took over the shrine vide its notification, dated 10-3- 1981 and the same was withdrawn on 15-9-1989. The possession of the land was handed over to the respondent vide order, dated 21-2-1989. This order was cancelled on 13-3-1989. The order was challenged by the respondents through a writ petition before this Court, which was dismissed on 15-7-1990, however, on appeal, the apex Court vacated the order and observed that the dispute cannot be resolved in writ jurisdiction. It was alleged that in view of the observation of the apex Court, the present suit has been filed. It was averred that respondent has no concern whatsoever with the shrine as well as' its property and has taken the possession of the property with connivance of the Auqaf Department, therefore, a decree for possession may be passed to the extent of Number Khasra 5180 and 5111. Respondents have controverted the facts pleaded by the plaintiff through their written statement. The trial Court framed issues in light of the respective pleadings of the parties and after providing an opportunity of evidence, dismissed the suit of the appellant herein for want of proof. Feeling aggrieved by the judgment of the trial Court, appellant herein preferred an appeal before the District Judge Bhimber on 31-3-2003. The District Judge also concurred with the findings of the trial Court and dismissed the appeal on 12-6-2003, hence this second appeal. Ghulam Hussain, appellant herein, preferred this second appeal on 9-9-2003. On 16-12-2003 an application for impleading the legal heirs of Syed Khalil Hussain Shah, was made. It is alleged in the application that after institution of the appeal the petitioner-appellants came to know that the real respondent has died. It was requested that his legal heirs, as have been listed in the application, may be impleaded in the line of the respondents. The legal heirs of Syed Khalil Hussain Shah besides filing an application for dismissal of the appeal, also filed objections stating therein that the respondent died on 6-6-2003 and the application has been filed on 16-12-2003, which is hopelessly time-barred. It was further alleged that Ruqqia Bibi, wife of Khalil Hussain Shah, who is sought to be impleaded, had died in 1985 and the legal heirs of one of the sons of the deceased namely Syed Zulqarnain Hussain Shah had been left over, therefore, the application is incomplete and the appeal merits dismissal. Arguing on behalf of appellant Ch. Khalid Rasheed, the learned Advocate for the appellant, vehemently contended that the application is within limitation from the date of knowledge, therefore, there is no harm in impleading the legal heirs of the respondent. The learned Advocate strenuously argued that in view of the amendments in the Code of Civil Procedure, as have been adopted in Azad Jammu and Kashmir, the appeal has to proceed and question of abatement does not vise. The learned Advocate supported his submissions by placing reliance on 2001 MLD 1955, 1992 SCMR 2184, 2334 and 1999 SCR 355. The arguments advanced on behalf of the appellant have been controverted by Raja Muhammd Siddique Khan, the learned Advocate for the legal heirs of Khalil Hussain Shah. The learned Advocate submitted that the appeal has been filed against a dead person, therefore, is a nullity in the eye of law and cannot be revived by deletion of the name of Khalil Hussain Shah or by impleading his legal heirs. In this regard the learned Advocate referred to and relied upon PLD 2003 Lah 615, PLD 1993 Karh 676, and 1985 CLC 2555. The learned Advocate submitted that application is vague as no' ate of knowledge is mentioned in the application, therefore, bare statement of the learned Advocate for the appellant, without support of any record, cannot be accepted. The learned Advocate also placed reliance on a judgment of the apex Court, in Civil Petition for leave to appeal No,77 of 1995, titled "Muhammad Mehrban v. Abdul Majeed", decided on 21-3-1995.
3. I have heard the learned Advocates for the parties and perused the record carefully. So far as the first contention of Ch. Khalid Rasheed, the learned Advocate for the appellant, that all the amendments in Code of Civil Procedure have been adopted in Azad Jammu and Kashmir, hence the question of abatement does not arise, is concerned, I have no quarrel with this submission. I am also conscious that amendment in Procedural Law operates retrospectively unless the legislature has intended otherwise. I am of the considered view that Order 22 of the Code of Civil Procedure is not applicable to the case in hand, therefore, it is not necessary to discuss these authorities separately. It is admitted position that respondent died on 6-6-2003. The First Appellate Court heard the arguments in appeal on 8-5-2003 and the judgment was announced on 12-6- 2003. It means that respondent died after conclusion of the arguments and before pronouncement of the judgment, therefore, the abatement of appeal cannot be pressed. So far as the validity of the judgment and decree of the District Judge is concerned, it is celebrated principle of law that no abatement takes place if a party dies after conclusion of arguments and before the judgment. The contention of Raja Muhammad Siddique Khan, the learned Advocate, that application is vague and no date is mentioned to support the averment that appellant gained the knowledge of the death of the respondent on a particular date. It is simply stated that appellant came to know about the death of the respondent after the institution of the appeal. The arguments of the learned Advocate when judged in light of averment of the application, it becomes crystal clear that application for impleading the legal heirs is vague. As no date is mentioned in the application, therefore, the rule of law laid down in Muhammad Mehrban's case supra, applies with full force. The relevant observation is as under:-- "However, the petitioner chose only to aver in the writ petition that he came to know about the issuance of State-Subject Certificate 'recently'. The dictionary meanings of the word `recently' are "not long past; that happened, appeared, began to exist, or existed lately". Obviously, the word 'recent' is an ambiguous term and is not helpful in ascertaining the period of the knowledge of the petitioner about the certificate in question."
4. The arguments of the learned Advocate for the respondents that the suit filed against a dead person is a nullity in the eye of law and D cannot be revived by impleading his legal heirs, is supported by the authorities referred to and relied upon by him. In PLD 2003 Lah 615, a learned Judge of the Lahore High Court opined that if a suit has been filed against the only defendant, who. Was dead at the time of institution, such suit shall be stillborn, nonexistent, and a nullity in the eye of law, therefore, it could not be merely defective and thus, could not be revived by impleading the legal heirs of the deceased defendant. The learned Judge while coming to this conclusion has followed 2001 SCMR 1 and 1985 CLC 2555. The proposition also received the attention of the apex Court of Azad Jammu and Kashmir in Khan Muhammad Khan's case 1999 YLR 550, wherein, the para. 5 of the judgment it has been observed as under:-- "The High Court has dismissed the suit filed by the appellants, herein, on the ground that they had instituted the suit in which three of the defendants were dead before the institution of the suit and that they failed to file application for bringing their legal representatives on the record within 90 days. It may be observed here that it is not an application under Rule 4 of Order 22 of Civil Procedure Code which deals with the bringing legal representatives of a deceased defendant on the record who dies during the pendency of the suit; in the instant case it is admitted position of both the opposite parties that said defendants had died before the institution of the suit. Therefore, the case would be governed by Rule 10 of Order 1 and not by Rule 4 of Order 22 of the Civil Procedure Code. The learned counsel for the respondents could not justify the finding of the High Court that as the application for impleading legal heirs was not submitted within 90 days, they could not be brought on the record; not law has been cited in support of the proposition that there was any limitation prescribed for bringing legal representatives of a defendant who had died before the institution of the suit. It may be stated that if there are more than one defendants out of which some were dead before the institution of the suit, their legal representatives can be brought on record in exercise of provision contained in Order 10, Rule 1 of the Civil Procedure Code subject to the point of limitation; the limitation against such heirs would start running from the date when they were impleaded."
5. Though the facts of the report are slightly different but the rule of law laid down in the report provides sufficient guidance for deciding the controversy in hand. The consensus is that when there are two or more, defendants in a suit or appeal and one of them was dead at the time of institution of the suit, then the suit or appeal, as the case may be, will not abate, and the Order 22 Rule 4 will not be applicable. The name of the dead person can be deleted under Rule 10 of Order 1 of the Code of Civil Procedure subject to the prescribed period of limitation. But when a suit or appeal has been filed against a sole defendant who was dead at the time of institution of the suit or appeal, as the case may be, the legal heirs of such a dead person cannot be substituted and the suit or appeal cannot be revived. Besides the authorities referred to herein above, this view also lends support from a case reported in AIR 1927 Calcutta 880. The upshot of the above discussion is that as the appeal has been filed against a dead person, therefore, is incompetent and is liable to be dismissed, I accordingly order.