Muhammad Amin Vs Muhammad Tufail through LRs etc

FORM No. HCJD/C-121

Order Sheet

IN THE LAHORE HIGH COURT

LAHORE

Judicial Department

W.P. No. 3120 of 2021 Muhammad Amin. Vs. Muhammad Tufail, etc. Sr.No. of Date of order/ Order with signature of Judge, and that of Parties’ counsel, where order/ Proceeding necessary.

proceedings . 28.10.2026 Nemo for petitioner.

Ms. Shehzeen Abdullah, Addl. Advocate General Punjab.

Mr. Qamar Hanif Ramay and Ms. Babra Akram Jadoon, Assistant Attorney Generals for Pakistan. Mr. Muhammad Abid, Civil Judge/Research Officer, Lahore High Court, Lahore.

M/s. Kashif Hussain, Shehryar Farhan Beg, Muhammad Dilbar Ghauri, Subhan Ali, Mazhar Hussain Tahir, Malik Khalid Tanveer, Abdul Manan Sipra, Rana Athar Raza Khan, Fayyaz Sandhu, Barrister Muhammad Sohail Babar Khan, Barrister Saeed Hussain Nagra, Sh. Faisal Sikandar Iqbal, Muhammad Shahid Malik, Malik Ali Raza Khokhar, Muhammad Shehzad Malik, Sarmad Ahmad Ghani, Mahar Salman Qutab, Syed Qaiser Gillani, Faisal Anwar Minhas, Ijaz Ahmad, Muhammad Naeem Mazhar, Ch. Imtiazullah Warraich, Ch. Muhammad Naseer, Barrister Rana Khizar Hayat, Barrister Karim Ullah Sraw, Muhammad Waleed Waheed Chaudhry, Asif Raza Rasheed, Barrister Shahid Masood Khan, Syed Imran Ehsan, Muhammad Badar Butt, Abdullah Haroon, Muhammad Saeed Bin Noman, Dr. Muhammad Azeem Raja, Syed Ali Allow-u-Din, Muhammad Afzal, Mateen ul Haq Ch., M. Haris Jutt, Shafique Ahmad Bhutta, Zahid Saeed, Omer Riaz Chaudhary, Adeel Hassan, Kamran Ahmad, Hafiz Naeem ur Rehman, Barrister Hassan Safdar Khan, Arslan Aamir Tarar, Syed Muhammad Haider Kazmi, Syed Muhammad Nazim Abbasi, Ms. Musarrat Rehman, Ms. Maryam Khan Khosa, Ms. Zubera Bashir Chaudhry, Ms. Moniba Nadeem and Ms. Asifa Ahmad, Advocates.

Muzamil Akhtar Shabir, J. The petitioner, Muhammad Amin (‘the petitioner’) has filed this constitutional petition to call in question order dated 11.10.2019 passed by learned Civil judge, Nowshera Virkan, District Gujranwala, whereby objection petition

WP No. 3120 of 2021 Dated 28.10.2026 filed by the petitioner was dismissed and has also called in question order dated 12.11.2020 passed by the learned Additional District Judge, Nowshera Virkan, District Gujranwala, whereby the revision petition filed by the petitioner against the said order has also been dismissed.

2.The instant petition was filed in the year 2021 yet since its inception, adjournments have been sought by the petitioner on one ground or the other and even today no one is in attendance to prosecute the same. As only a short question of law is involved in this petition, therefore the same is being decided in the absence of counsel for the petitioner as keeping the same pending would only prolong the proceedings before this Court without any legal justification.

3.Brief facts of the case are that Muhammad Shafi father of the petitioner and proforma respondents filed an application under Section 14 and 17 of the Arbitration Act 1940 (Arbitration Act) to get decision given by Arbitrator dated 02.06.1993 made a rule of the court by impleading Mohammad Tufail respondent No.1, who is now represented by his legal heirs and the Arbitrator, Ghaus Muhammad (‘Arbitrator’) son of Chaudhry Wali Muhammad as respondents No.1 and 2 respectively. The remaining details of the case leading to the award are unnecessary, hence are not mentioned herein for the purpose of brevity. Muhammad Tufail, was proceeded against ex-parte whereas Ghaus Muhammad Arbitrator appeared and submitted a conceding reply, which resulted in passing of order dated 29.04.2009, whereby the said decision was made rule of the Court. The operative portion of said decision is reproduced below for clarity:- ‘5. Perusal of the file reveals that the application, in hand, is to make an arbitration decision dated 02.06.1993 as a rule of court. The person to whom, the petitioner and the respondent referred the dispute is respondent No.2, who has

WP No. 3120 of 2021 Dated 28.10.2026 conceded the claim of the petitioner. Petitioner through oral evidence has put forward his version. Even the arbitrator respondent No.2 has appeared as AW-1 and he has presented the arbitration decision as Ex.A1 on simple paper and Ex. A2 on duly stamped paper. Nothing has been produced in rebuttal to the evidence lead by the petitioner. Original arbitration decision has been produced in the court by the arbitrator, which is duly stamped. Moreover, Ex. A3 and Ex.A4 have been presented to further substantiate the version of the petitioner as facts necessitated the emergence of arbitration. So, in the light of the above made discussion, the application in hand, is hereby accepted and arbitration decision dated 02-06-1993 Ex.A2 is made rule of court. File be consigned to the record room after its due completion.’

4.Muhammad Tufail, thereafter filed an application under Order IX Rule 13 CPC for setting aside the order dated 29.04.2009 by claiming that he had not been served before passing the aforementioned order and claimed that the matter be decided on merits. During the proceedings of said application the parties and the arbitrator passed away one by one and the court directed to implead their legal heirs as parties. The respondents as legal heirs of Muhammad Tufail filed amended petition without impleading legal heirs of Ghous Mohammad (arbitrator) as party to the amended application under Order IX rule 13 CPC, whereupon objection in writing was raised by legal heirs of Muhammad Shafi that legal heirs of the arbitrator were proper and necessary parties, which were required to be impleaded otherwise the matter cannot proceed further. The said objection was contested by the legal heirs of Mohammad Tufail by filing reply that Ghous Muhammad was the arbitrator, who acted in his personal capacity and his legal heirs were not required to be impleaded as a party to defend the proceedings. The trial court dismissed the said objection petition and the revision filed by the legal heirs of Muhammad Shafi to challenge the said decision was also dismissed by observing the legal heirs of Ghous Muhammad

WP No. 3120 of 2021 Dated 28.10.2026 (arbitrator) were not proper or necessary parties and were not required to be impleaded. The said order has been assailed before this Court.

5.The only question for determination before this Court is whether the legal heirs of Ghous Muhammad (Arbitrator) were proper and necessary parties to the proceedings to be impleaded as his legal representatives.

6.Under the Arbitration Act, the parties may by agreement in writing agree to submit any present or future dispute/differences for decision through Arbitration by an Arbitrator, whether he is named therein or not. A situation may arise that the said Arbitrator dies before or after commencement of proceedings and Sections 8 and 9 of the Arbitration Act, provide for appointment of another Arbitrator in his place, which may be a person who generally is not legal heir of the Arbitrator. However, in the present case such a situation has not arisen. In the instant case the Arbitrator has died after the award had been made a rule of the court through an ex-parte order passed against Muhammad Tufail, now represented by his heirs.

7.The effect of death of a party to proceedings has been provided in Section 6 of the Arbitration Act, which is reproduced below:- ‘6. Arbitration agreement not to be discharged by death of party thereto.–

(1)An arbitration agreement shall not be discharged by the death of any party thereto, either as respects the deceased or any other party, but shall in such event be enforceable by or against the legal representative of the deceased.

(2)The authority of an arbitrator shall not be revoked by the death of any party by whom he was appointed.

(3)Nothing in this section shall affect the operation of any law by virtue of which any right of action is extinguished by the death of a person.

8.It is clearly mentioned in Section 6 of the Arbitration Act that an arbitration agreement shall not be

WP No. 3120 of 2021 Dated 28.10.2026 discharged by the death of any party thereto, either as respects the deceased or any other party, but shall in such event be enforceable by or against the legal representative of the deceased. Moreover, the authority of an arbitrator shall not be revoked by the death of any party by whom he was appointed. In India, Section 40 of the Arbitration and Conciliation Act, 1996, which provision is similar to Section 6 of the Arbitration Act, came up for consideration before the Supreme Court of India in Ravi Parkash Geol vs. Chandra Parkash Geol [2008 (13) SCC (L&S) 667], wherein the Court held as under: “16. It is clear from Section 40 of the Arbitration Act that an arbitration agreement is not discharged by the death of any party thereto and on such death it is enforceable by or against the legal representatives of the deceased, nor is the authority of the arbitrator revoked by the death of the party appointing him, subject to the operation of any law by virtue of which the death of a person extinguishes the right of action of that person.”

This judgment was subsequently referred to by the Supreme Court of India in Rahul Verma & Ors. Rampat Lal Verma & Ors. [2025] 2 S.C.R. 1713 : 2025 INSC 296 and in both the said judgments, conclusion was drawn that persons claiming under the right of a deceased person are representatives of the deceased party and, therefore, both the parties to the agreement and their legal heirs are entitled to enforce an arbitration agreement/arbitral award.

9.From the principles applicable in both jurisdictions i.e. Pakistan and India, it is established like mid-day sun that only the parties that agree to refer to dispute to arbitration and their legal heirs are the parties to the arbitration proceedings and an Arbitrator under no stretch of imagination can be treated as a party to the said agreement, subject to the exception that the parties have with mutual consent agreed to appoint a person or persons

WP No. 3120 of 2021 Dated 28.10.2026 as Arbitrator(s) who happens to be a party or parties to the said agreement.

10.The definition of legal representatives is provided in section 2(d) of the Arbitration Act, which is reproduced below:

“2. Definitions.– In this Act, unless there is anything repugnant in the subject or context,–

(d)“legal representative” means a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased, and, where a party acts in representative character, the person on whom the estate devolves on the death of the party so acting;”

11.The afore-referred definition provides that a legal representative means a person who in law represents the estate of a deceased person and includes any person who intermeddles with the estate of the deceased, and, where a party acts in representative character, the person on whom the estate devolves on the death of the party so acting. The aforementioned definition also refers to the parties to the arbitration proceeding and not to the legal representatives of the Arbitrator and the mention of phrase ‘where a party acts in representative character’ also does not refer to the Arbitrator rather the parties to the arbitration proceedings only.

12.Next comes the effect of sub-section (3) of Section 6 of the Arbitration Act, which provides that nothing in Section 6 shall affect the operation of any law by virtue of which any right of action is extinguished by the death of a person. This refers to abatement of proceedings against a person by death of a party. The general principles is that by and large, the right to sue survives except the right to sue which is closely associated with the individual or is a personal right of action and the principle governing the abatement of proceedings is that where the cause of action does not survive after death of a person, the personal actions die with the said person and as right to sue him does not

WP No. 3120 of 2021 Dated 28.10.2026 survive, the liability is not devolved upon the legal heirs. Reference is placed upon principles laid down in Pakistan Railways through Chief Executive Officer/Senior General Manager, Lahore and another Versus Muhammad Aslam (2024 SCMR 97), wherein it is mentioned as under:- ‘5. The most crucial aspect of this case is whether the right to sue survives on the death of respondent or not. According to the Latin legal maxim "actio personalis moritur cum persona" the personal right to an action dies with the person. There are certain categories of legal proceedings or lawsuits in which the right to sue is personal and does not survive or pass on to the legal representatives and, as a consequence thereof, the proceedings are abated. In case of survival of cause of action, according to the genres of the lis, the legal representatives may be impleaded to continue the suit or other legal proceedings for which the relevant provisions are mentioned under Order XXII, Rule 1, C.P.C, i.e. that the death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives, and further modalities are mentioned in succeeding rules such as how to implead the legal heirs in case of death of one of several plaintiffs or the sole plaintiff and in case of death of one of several defendants or of the sole defendant.’

13.In terms of Order XXII Rule 1 CPC, the principle of law is that proceedings would continue against legal heirs and the death of a party does not, by itself, cause a suit to abate if the right to sue survives. The test is whether the cause of action is personal to the deceased or whether it affects his estate. Personal obligations of the deceased, which are not attached to the estate, do not survive. Conversely, obligations that are pecuniary in nature and can be satisfied from the estate of the deceased do survive. The said principle is laid down by a Division Bench in Mst. Zubaida Khanam and others versus Haji Muhammad Siddique (PLD 2026 Lahore 716), wherein it has been held as under:- ‘Moreover, in terms of Order XXII, Rule 1, C.P.C. the death of a party does not, by itself, cause a suit to abate if the right to sue survives. The test is whether the cause of action is personal to the

WP No. 3120 of 2021 Dated 28.10.2026 deceased or whether it affects his estate. Personal obligations of the deceased, which are not attached to the estate, do not survive. Conversely, obligations that are pecuniary in nature and can be satisfied from the estate of the deceased do survive.’

14.The said principle has also been discussed by a Division Bench in Mohammad Ali Tariq versus Thai Airways International through CEO/Manager and 3 others (PLD 2024 Islamabad 227), wherein it has been held as under:- ‘10. Thus the distinguishing factor between a 'right to sue' that survives death and one that does not is whether the right was a personal right of action. A right immediately connected with the individuality of the deceased does not survive. The Appellant has not cited any case law whereby a personal right of action arising from tort has been distinguished from such right arising out of contract and/or under statute for the purposes of surviving death. The liability of the carrier in the event of wounding of a passenger or any other bodily injury suffered by passenger pursuant to Section 17 of Chapter III contained in the First Schedule of the Carriage by Air Act is also a personal right connected with the passenger and as such dies with such passenger.

11.Without prejudice to the foregoing, the right would have survived if the suit had been decreed in favour of the Appellant. Reference may be made to Ali Muhammad Mirza (Supra) wherein it was held that suit for damages falls under the category of cases where the plaintiff's suit with regard to some claim which is associated with or vests in their individuality.’

15.In Mian Rahim Gul Syed Kaka Khel versus District Judge (South), Karachi and others (1994 CLC 94) a Division Bench of Karachi High Court has held as under:- ‘Rule 1 of Order XXII of the Code of Civil Procedure provides that the death of plaintiff or defendant shall not cause the suit, to abate if the right to sue survives. Abatement is a concept of procedural law and takes effect upon a proceeding becoming defective by the death of any of the parties to a cause and one prominent feature is that the proceedings may be revived by the substitution of parties up to which time they remain in a state of suspense. It is well‐settled legal position that all rights of action

WP No. 3120 of 2021 Dated 28.10.2026 existing in favour of or against a party survive, but personal activities connected with the individuality of the deceased do not survive. Actio personalise moritur cum persona-personal right of action dies with person. Late Mian Rahim Gul was not claiming to establish right to personal office. The prayer in petition under, section 11 of the Ordinance is that Mazar of Baba Laal Shah Tahir is beyond the area of the shrine and property of Mazar of Hazrat Abdullah Shah Ghazi.

The question whether right to sue survives in a particular case, falls within the realm of substantive law and is not a matter pertaining to the trial of a petition. In the present case, late Mian Rahim Gul had only claimed in his petition, that the order passed by the first respondent is without jurisdiction. In these circumstances, the conclusion is that on the demise of Mian Rahim Gul, his petition is not abated and his successor can continue the petition. In that view of the matter, we allow the application and substitute Syed Inayat Hussain in place of Mian Rahim Gul.’

16.In view of the principles laid down in the above referred judgments, it can be observed that it is well‐settled legal position that all rights of action existing in favour of or against a party survive, but personal activities connected with the individuality of the deceased do not survive on the basis of principle of law mentioned in the Maxim ‘Actio personalise moritur cum persona’, which means that a personal right of action dies with the person. The said principle is attracted to an action by and against a person, subject to certain exceptions, for example a decree has already been passed in favour or against a person prior to his death.

17.Now coming to the present case, the Arbitrator appointed in the case had only to settle the dispute between the parties through an Arbitration Award and thereafter no right was vested in him to retain any portion of the property, which would devolve upon his legal heirs or representatives after his death. It is not the case of any party that by the act of the Arbitrator his property has benefitted, which shall after his death devolve upon his legal heirs, hence none of the rights of action existing in

WP No. 3120 of 2021 Dated 28.10.2026 favour of other side against the Arbitrator survived and the passing and filing of award in the Court, which were personal activities connected with the individuality of the deceased while discharging his duties as an Arbitrator, do not survive on the basis of principle of law mentioned in the Maxim ‘Actio personalise moritur cum persona’, which means that a personal right of action dies with the person. Consequently, it is held that the legal heirs of the deceased were not proper and necessary parties to be impleaded as legal representative of the deceased in the further proceedings arising in the matter after his death and the objection filed by the petitioner to that effect was rightly dismissed concurrently by the courts below, which findings do not appear to suffer from any illegality or jurisdictional defect or misreading and nonreading of record for this Court to warrant interference at this stage.

18.For what has been discussed above, this petition being devoid of any merit is dismissed on merits as well as for non-prosecution.

(MUZAMIL AKHTAR SHABIR)

JUDGE

Zeeshan/Naveed*

APPROVED FOR REPORTING: