Rizwan Ullah Khan and others Vs Muhammad Usman Khan and others

PESHAWAR HIGH COURT, PESHAWAR

ORDER SHEET

Date of Order or Order or others Proceedings with Signature of Judge Proceedings

26.11.2025 C.R No. 35/2013 With CM 361/2024, Present: Mr. Abdul Samad Khan, Advocate, for the petitioners.

Mr. Salman Fayaz Mir, Advocate, for the respondents.

MUHAMMAD IJAZ KHAN, J.- Through this order, this Court intends to decide the preliminary objection as raised by the learned counsel for the petitioners before this Court on the last date of hearing i.e. 16.09.2025 to the effect that the appeal filed by the respondents / plaintiffs before the Appeal Court was not competent as out of the respondents / plaintiffs one Mst. Surayya Begum had died during the proceeding before the learned trial court and thereafter an appeal has been filed by her six

(06)out of eight (08) legal heirs alongwith other plaintiffs, however, two of her legal heirs namely, Muhammad Aslam Khan Durrani and

Mst. Memoona Durrani have not been impleaded neither as appellants nor as respondents, therefore, the appeal was not competent and as such the impugned judgment and decree of the learned Appeal Court is liable to be set aside on this ground alone and in this regard, petitioners’ counsel relied on the judgment of this Court titled “Muhammad Alam and others .vs. Qalam Badshah and others reported as 2012 YLR 521.

2.In order to answer the aforesaid preliminary objection, it would be relevant to make reference to relevant factual back ground of this case. One Mst. Surayya Begum alongwith 17 others had brought a suit against the petitioners then defendants for a declaration to the effect that the impugned transfer of suit land through attestation of mutation by defendant No.1 namely, Habib Ullah Jan in favour of defendant No.5 namely, Mst.

Faheema Begum, vide which considerable junk of land (fully mentioned in the heading of the plaint) situated in various khasra numbers have been transferred in the column of cultivation

and in this regard, the impugned tatima khasrajat are against the law, incorrect, based on fraud and are thus liable to be cancelled. It is further pleaded that the plaintiffs and defendants No. 1 to 4 are though joint owners but defendant No. 1 alone was not entitled to make the impugned transfer through the impugned mutation to the defendant No.5. They had also prayed for issuance of permanent injunction in their favour. The aforesaid suit was duly contested by filing an application under Order VII Rule 11 CPC for the rejection of the plaint which was allowed vide order dated 13.06.1994 which order was challenged in a revision petition which was allowed and the said order was set aside by the learned Revisional Court vide order dated 13.07.1994 and the case was remanded back with the direction to decide the suit on merits, thereafter written statement was submitted, issues were framed and both the parties adduced their evidence and ultimately the said suit was dismissed by the learned trial court vide judgment and decree dated 22.05.2009.

3.It appears that at this point of time, plaintiff No.1 namely, Mst. Surayya Begum had left this transit world, therefore, her six (06) out of eight (08) legal heirs who were appellants No.1 to 6 alongwith others had challenged the aforesaid judgment and decree before the Appeal Court, which appeal was initially allowed by the learned Additional District Judge-IV, Peshawar vide judgment and decree dated 07.01.2010, however, the said judgment and decree was challenged by the present petitioners then defendants before this Court through a Revision Petition No. 742 of 2010 which came up before this Court on 11.06.2012, whereby the said revision was allowed and the case was remanded back to the learned Appeal Court for re-writing of a fresh judgment in compliance with the provisions of Order 41 Rule 31 CPC. After the remand, the said appeal has again been allowed vide impugned judgment and decree dated 11.10.2012.

4.As stated hereinabove that Mst. Surayya Begum alongwith 17 others had filed a suit for necessary correction in the revenue record as

well as for the cancellation of the mutation mentioned in the heading of the plaint, therefore, in case of her death any appeal filed by some of her legal heirs without impleading some of them either as appellants or as respondents would render the very appeal as maintainable or in the given facts and circumstances if a judgment is passed by the Appeal Court then the same would liable to be set aside or not?

5.In order to answer the aforesaid preliminary objection, it would be relevant to mention here that prior to the promulgation of The Law Reforms Ordinance, 1972 (Ordinance XII of 1972), a suit used to abate in case of death of the plaintiff, however, through the said Ordinance, an amendment has been brought in Rule 3 and Rule 4 of Order XXII CPC which provides a complete mechanism for an eventuality where a plaintiff or defendant dies during the pendency of a suit or appeal then entry in this regard is to be made in the record, for impleadment of their legal heirs and in case a legal heir of such deceased plaintiff or

defendant is not impleaded or even if the factum of the death of the plaintiff or defendant is not brought into the notice of the Court, then its effect on the pending proceedings and even if the judgment is made or pronounced. After the introduction of the said amendment in Rules 3 & 4 of Order XXII CPC, a suit or appeal would not abate on the death of a party and the same may be continued in accordance with the amendment brought in the said Order if the surviving party is having an alive cause of action as well as if any right thereafter survive.

It would also be relevant to mention here that keeping in view the mandate of Rule 11 of the Order XXII CPC, the said order has been made applicable to the appeals as well and as such whenever the word ‘plaintiff’ occurred it shall be held to include an appellant and wherever the word ‘defendant’ occurred it shall be held as respondent and wherever the word ‘suit’ occurred it shall be read as appeal. Similarly, as per Rule 2 of Order XXII, if there are several plaintiffs or defendants in a suit and if any one of them dies, then an entry in this regard is to be

made in the record and the suit shall proceed at the instance of surviving plaintiff or against the surviving defendant. Rule 2 of Order XXII CPC being relevant is reproduced below:-

2.Procedure where one of several plaintiffs or defendants dies and right to sue survives._ Where there are more plaintiffs or defendants than one, and any of them dies, and where the right to sue survives to the surviving plaintiffs or plaintiffs alone, or against the surviving defendant of defendants alone, the Court shall cause an entry to that effect to be made on the record, and the suit shall proceed at the instance of the surviving plaintiff, or plaintiffs, or against the surviving defendant or defendants.

The aforesaid Rule requires that if there are more plaintiffs and defendants than one and anyone of them dies and where the right to sue survive to the surviving plaintiff or against the surviving defendant then the Court shall cause an entry to that effect to be made on the record and the suit shall proceed at the instance of the surviving plaintiff or against the surviving defendant as the case may be.

6.It would also be relevant to mention here that in a case, if one of several plaintiffs or a sole plaintiff dies then the court shall implead the legal representative of such deceased

plaintiffs, however, if no such application is made and the court is not informed in this regard, then the court may proceed with the suit and any judgment pronounced in the suit would be as effective, as if it is made or pronounced before the death of such plaintiff. The aforesaid mandate as provided under Rule-3 of Order XXII CPC, being relevant is reproduced below:-

3.Procedure in case of death of one of several plaintiffs or of sole plaintiff._ (1) Where one of two or more plaintiffs dies and the right to sue does not survive to the surviving plaintiffs alone [or on receipt of an intimation of the death of such plaintiff from the person nominated by him for that purpose under rule 26, Order VII], or a sole plaintiff or sole surviving plaintiff dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit.

(2)Where within the time allowed by law no application is made or intimation is given under sub-rule (1), the Court may proceed with the suit, and any order made or judgment pronounced in such suit shall, notwithstanding the death of such plaintiff, have the same force and effect as if it had been made or pronounced before the death took place.

7.Keeping in view the aforesaid mandate of law and the preliminary objection so raised by

the learned counsel for the petitioners if placed in juxtaposition then on the basis of the said objection alone, the judgement pronounced by the Appeal Court could not be set-aside, as even if Mst. Surayya Begum had died and this fact has not been brought to the notice of the court and the court had pronounced a judgement, then even in such eventuality too, the judgement would be a legal and lawful judgement, what to speak of setting aside the same merely on this ground that out of her eight (08) legal heirs, six

(06)were appellants and two were neither impleaded as appellants nor as respondents, more particularly, when it is seen that no such objection has ever been made by the present petitioners during the course of hearing of the instant appeal, which remained pending before the learned Appeal Court since the year, 2009.

8.It would be also relevant to mention here that since the petitioners are judgement-debtors and there were eighteen (18) appellants before the Appeal Court and as they were having a common interest in the suit, therefore, non- impleadment of the two legal heirs as appellants

would not render the proceedings as well as the judgement of appeal court as invalid. Had the two left out legal heirs of Mst. Surayya Begum, namely Muhammad Aslam Khan Durrani and Mst. Memoona Durani were before this Court by challenging the judgment and decree of Appeal Court by invoking the provisions of sub-rule (2) of Rule 9 of Order XXII CPC, then of course the position would have been otherwise, but since till date they have not objected to the judgment and decree of the Appeal Court, then on the objection of the petitioners being judgement-debtors, the said judgement on this ground alone could not be set-aside.

9.During the course of his arguments one of the ancillary objections was that if once the legal heirs of a deceased party is not arrayed as a party in the pending proceedings, then after expiration of the limitation period, they cannot be impleaded, however, the said objection too is not legally correct as there is a marked distinction between adding or substituting a party and bringing on record the legal

representatives of a deceased party and the limitation would be relevant only for the former state of eventuality, whereas no such limitation could be applied to the latter eventuality. To further clarify that as in which cases and as to where the question of limitation would be relevant, it would be appropriate to reproduce below Section 22 of The Limitation Act, 1908:-

22.Effect of substituting or adding new plaintiff or defendant.– (1) Where, after the institution of a suit a new plaintiff or defendant is substituted or added, the suit shall, as regards him, be deemed to have been instituted when he was so made a party.

(2)Nothing in sub-section (1) shall apply to a case where a party is added or substituted owing to an assignment or devolution of any interest during the pendency of a suit or where a plaintiff is made a defendant or a defendant is made a plaintiff.

From the plain reading of the above provision of law, it is clear that if a party is added or substituted in a pending suit as a plaintiff or defendant, then for the purpose of limitation, the suit for such added party shall be deemed to be instituted on the date when such party is added but where the legal representatives of a deceased plaintiff or

defendant are brought on record then in view of sub-section (2) of Section 22 of The Limitation Act, 1908, the aforesaid principals shall not be applicable and thus on this score too, the objection of the learned counsel for the petitioners qua impleadment of legal heirs of a deceased plaintiff after expiration of the limitation period is not legally correct. In a case1 the Apex Court held that the view taken by the Privy Council in the case of V.P.R.V.

Chockalingam Chetty (supra) has not been dissented from by this Court, but has been explained in the case of Said Muhammad (supra) and it has been pointed out therein that preponderance of opinion, discernible from the case law discussed, is against the rigid view taken in Labhuram's case by the Full Bench of the Lahore High Court. In the above case, it has also been held by this Court that the rigidity in the application of Order XLI, Rule 20, C.P.C. as concluded in Labhuram's case that where a party is not impleaded in appeal within the period of limitation, he can never be deemed to 1 Mst. Sardar Begum .vs. Muhammad Anwar Shah and others reported as 1993 SCMR 363

be an interested party in the result of the appeal, is no longer an inviolable rule. It has been further held that the power contained in Order XLI, Rule 20, C.P.C., can be exercised by the Court suo motu or at the behest of a party. We may also observe that in Pakistan Water and Power Development Authority's case (supra), in which in place of WAPDA, the Chairman of WAPDA, was impleaded as the defendant, amendment as to the description of the defendant was allowed by the Courts below after the expiry of the limitation period on the ground that it was not a case of addition or substitution of a new party as to attract the principle laid down in section 22(1) of the Limitation Act, but it was merely correction of the description of a party and, therefore, question of limitation period was not involved.

This Court, while declining petition for leave to appeal, accorded its approval to the above approach of the Courts below and further observed that second part of section 153, C.P.C., which inter alia empowers the Court to make all necessary amendments at any time for

the purpose of determining the real question or issue, was attracted to.

10.As stated hereinabove that for the sustainability of the aforesaid preliminary objection, the learned counsel for the petitioners has solely and exclusively relied upon the judgment of this Court in the case of Muhammad Alam and others (supra), where paras-15, 16 and 17 being relevant were read over in the open court in which reference to some of the judgments of the Apex Court has also been made, however, the facts of the aforesaid case are totally distinguishable from the facts of the present case as in the said judgment, the appellant had filed an appeal against a dead person alongwith other and as despite the knowledge of the appellant, the legal heirs of deceased respondent were not impleaded in the memo of appeal and as all the respondents were having a joint and common interest in the subject matter and as their rights were indivisible, therefore, the said non- impleadment of legal heirs of the respondent was found as fatal for the appellant as in case of

grant of any decree, the same would have been against all the impleaded respondents as well as against the L.Rs of the deceased respondent, who were not even made party to the same, however, the said principle could not be applied to the facts and circumstance of the present case as in this case, all the defendants were made respondents in the memo of appeal and the impugned judgment and decree would be executable against all of them and none of them would be taken by surprise at the time of its execution. The said judgment is also distinguishable as for the purpose of execution of the impugned decree all respondents/ defendants being necessary parties have been impleaded and the said decree could be executed even if some of the L.Rs of Mst.

Surayya Begum have been left out, more particularly, when it is seen that all legal heirs of Mst. Surayya Begum shall be considered as joint co-owners / co-sharers and having a common interest in the suit property.

11.In view of the above legal and factual position, the preliminary objection raised by the

petitioners / defendants is dismissed. The learned counsels for the parties are directed to argue the main case on merits on the next date of hearing. No order as to costs.

12.Needless to mention here that the aforesaid observations/ findings are aimed to decide the preliminary objection as raised by the learned counsel for the petitioner and they shall have no bearing on the merits of the main revision petition, which is to be decided independently on its own merit and in accordance with law.

Sd/-

JUDGE

(S.B) Hon’ble Mr. Justice Muhammad Ijaz Khan Noor Shah