Mumtaz Ali Vs Abdul Wakil

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT,

MINGORA BENCH (DAR-UL-QAZA), SWAT

(Judicial Department)

C.R No. 293-M/2016

(Mumtaz Ali Versus Abdul Wakil and others) Present:

Mr. Shams Ul Hadi, ASC for petitioner.

Mr. Iftikhar Ahmad (Senior), Advocate for respondent No.1.

Date of hearing: 20.11.2025

JUDGME NT

QAZI JAWAD EHSANULLAH, J.- Through the instant civil revision petition, petitioner Mumtaz Ali (since deceased) has called in question the judgment and decree dated 10.09.2016 passed by the learned Additional District Judge-I/Izafi Zilla Qazi, Buner, whereby his appeal was dismissed and the judgment and decree dated 21.09.2013 passed by the learned Civil Judge-IV/Illaqa Qazi, Buner in the suit titled Abdul Wakil v. Mumtaz Ali etc. was maintained, resulting in a decree in favour of the plaintiff/respondent No.1 to the extent of recovery of 122 tola 8 masha gold or its prevailing market value.

2.Precisely, the facts giving rise to the present revision are that plaintiff/respondent Abdul Wakil, a goldsmith by profession carrying on business Tajamul/CS* (S.B) Hon’ble Mr. Justice Qazi Jawad Ehsanullah

at Mingora, District Swat, instituted a civil suit asserting long-standing business relations with the petitioner and his sons (respondents No.2-4) who were also jewelers and were running their business at Pacha Kaly, District Buner, under the name Mumtaz Ali Jewelers. It was pleaded that during the course of such dealings, the defendants used to obtain gold from the plaintiff and make payment subsequently. Petitioner/defendant Mumtaz Ali allegedly fell seriously ill, whereafter his sons (respondents No.2 to 4) continued the business under his supervision. According to the plaintiff, a total of 122 tola 8 masha gold was supplied to the defendants at different times, the price whereof remained outstanding. Upon demand, the defendants expressed inability to pay the amount and agreed to transfer landed property in lieu thereof, resulting in execution of an undertaking/deed dated 15.12.2006. On the basis of the said undertaking, the plaintiff initially filed a suit1 for specific performance against the petitioner alone, which was decreed ex parte, leading to attestation of Mutation No.1879 dated 21.05.20082 in favour of the plaintiff. When execution proceedings for possession were initiated, the petitioner challenged the said ex Page 9

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parte decree by filing an application under section 12(2), C.P.C3, which was eventually allowed in light of evidence of the parties vide judgment dated 11.07.20114 and the decree as well as the transfer mutation were set aside. Thereafter, with leave of the court, the earlier suit was withdrawn and a fresh suit5 was instituted against the petitioner and his sons/respondents No. 2 to 4, seeking declaration of title, specific performance of the undertaking dated 15.12.2006, possession through partition, and, in the alternative, recovery of 122 tola 8 masha gold or its prevailing market value.

3.Upon trial, the learned trial Court, vide judgment and decree dated 21.09.20136, declined the reliefs of declaration, specific performance and partition, but decreed the suit to the limited extent of recovery of 122 tola 8 masha gold or its market value against the petitioner and his sons/respondents No.2 to

4.The sons did not challenge that decree whereas the appeal7 preferred by their father/petitioner Mumtaz Ali was dismissed by the learned appellate Court vide judgment dated 10.09.20168, maintaining the findings Page 24

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Page 137 Tajamul/CS* (S.B) Hon’ble Mr. Justice Qazi Jawad Ehsanullah

and decree of the trial court, whereafter the present civil revision petition has been filed.

4.Arguments heard and record perused.

5.The petitioner has filed the instant revision petition in the above context wherein he has arrayed respondent No.1/decree-holder and his four sons (defendants/judgment-debtors) with the prayer that he may be absolved of the joint/civil liability of paying 122 tolas and 08 Masha of gold or its prevailing market value to the decree-holder Abdul Wakil. Obviously, his interests are in conflict with his sons, who are judgment-debtors being defendants in the suit and respondents in the instant revision petition and they have never questioned the decree which has attained finality. The striking feature of this case is that during pendency of this revision petition, petitioner Mumtaz Ali has passed away and he is survived by his four sons, his widow and two daughters. Three sons namely Muhammad Ibrahim, Muhammad Raziq and Rahman Ali, who were defendants in the suit, have been arrayed as respondents No. 2 to 4 in the instant revision petition. His fourth son Muhammad Ayub was not a party to the suit nor a signatory of the deed.

Tajamul/CS* (S.B) Hon’ble Mr. Justice Qazi Jawad Ehsanullah

6.The pivotal question that arises in the present case is whether the cause of action in this revision petition has survived to respondents No.2 to 4, sons of the deceased petitioner Mumtaz Ali, so as to warrant their substitution, or whether the right to continue these proceedings has instead devolved exclusively upon his surviving widow, his fourth son Muhammad Ayub, and his daughters. The legal framework governing the death of a party and the survival of the right to sue is embodied in Order XXII of the Civil Procedure Code, 1908, Rule 1 of which reads as follows:

“1. No abatement by party’s death, if right to sue survives. The death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives.”

Generally, under the scheme of Rule 1 of Order XXII CPC, all causes of action and legal claims existing in favour of or against a party at the time of his death survive to or against his legal representatives. The only exception to this general rule pertains to rights that are intimately connected with the individuality of the deceased, which do not survive. This exception is grounded in the common law maxim “actio personalis moritur cum persona” meaning that a purely personal Tajamul/CS* (S.B) Hon’ble Mr. Justice Qazi Jawad Ehsanullah

right of action dies with the person. Accordingly, where the cause of action is not personal in nature or inseparably linked to the deceased's individuality, the right to sue continues and devolves upon the legal heirs9. However, the facts of the present case raise a nuanced and legally complex situation. The deceased petitioner, Mumtaz Ali, while contesting the decree, had consistently maintained that he was not a party to the transaction underlying the suit. According to him, the agreement dated 15.12.2006, on the basis of which the decree was passed, was executed solely between the plaintiff and three sons of the petitioner, now respondents No.2 to 4. These sons were co-defendants in the suit and have never challenged the decree passed against them. The decree, therefore, has attained finality as far as they are concerned. Allowing respondents No.2 to 4 to be substituted in place of their deceased father as petitioners in this revision poses a twofold legal dilemma: first, by stepping into the shoes of the deceased petitioner, they would be required to advance arguments contrary to their own established legal position and financial interests, effectively advocating for the setting aside of a decree which they themselves Ali Muhammad Mirza and others V. Mst. Sardaran and others (PLD 2004

S.C 185)

Tajamul/CS* (S.B) Hon’ble Mr. Justice Qazi Jawad Ehsanullah

have accepted by not challenging the same; and second, their substitution might afford them an opportunity to re-agitate the matter and contest the decree, despite their failure to file any appeal or revision in their own right, thereby violating the principle of finality attached to judicial determinations. In such a context, the substitution of respondents No.2 to 4 would result in an inherent conflict of interest, rendering them unfit to represent the estate of the deceased petitioner in continuation of these proceedings. The right to sue, in the legal sense contemplated by Order XXII, therefore, does not survive to them. Rather, it devolves upon those legal heirs whose interests are not adverse to the deceased petitioner’s position namely, his surviving widow, his fourth son Muhammad Ayub (who was not a party to the earlier proceedings), and his daughters.

These heirs, having no personal stake in maintaining the decree under challenge, are the proper persons to be substituted as legal representatives to pursue the present revision petition in accordance with law. In this regard the judgment of Allahabad High Court in New Okhla Industrial Development Authority (NOIDA) v. Pooran Singh & Ors. Reported as [AIR 2004 All. 218 (DB)] may be referred wherein it has been held: Tajamul/CS* (S.B) Hon’ble Mr. Justice Qazi Jawad Ehsanullah

“18. On the contrary Section 37 General Rules (Civil) read with Order 22, Rr. 3 and 4, C.P.C in an unambiguous manner provides that when a party dies pendente lite, to make a note to that effect to be added against the name of that deceased party and heirs (correctly Legal Representatives) of deceased party to be substituted as given therein Word "Struck Out" has been used in Order 1, Rule 10(2), C.P.C, but avoided in Order 22, Rule 3 and Rule 4, C.P.C It shows that party once on record, even if dead, has to continue and a note of the fact is to be made. If Legal Representatives are to be brought on record, they shall be further made party (see Order. 22, Rule 3) as provided under Rule 37 General Rules (Civil).

19.The aforequoted provisions also show that judgment should contain full particulars of the parties and decree has to follow the judgment. In case name of a deceased party (originally impleaded) is washed off while substituting L.Rs. It is likely to mislead as it shall not be possible in future to ascertain extent of rights to be determined with respect to the estate of a deceased party. It may be reiterated that when a person dies, right of substitution is not on the basis of succession, but a person, who is competent to represent the estate of a deceased party and has no interest adverse to the deceased's estate will be permitted to be substituted as his legal representative.”

Similarly, in another pronouncement of Delhi High Court in Shri S.K. Beri vs Deepak Beri & Ors decided on 9 February, 2023, wherein it has been held:

“15. The reliefs claimed in the present suit by Late Shri S.K. Beri were specifically against Deepak Beri and his family members. Deepak Beri has contested the suit by filing a written statement controverting the averments made in the plaint and seeking dismissal of the present suit. Where the Signature Not Verified Digitally Signed By:AMIT BANSAL Signing Date:13.02.2023 Tajamul/CS* (S.B) Hon’ble Mr. Justice Qazi Jawad Ehsanullah

14:47:05 CS(OS) 162/2018 Page 5 of 6 2023/DHC/000991 interest of the legal representative is in conflict with the interest of the deceased plaintiff and he was a party in the suit as a defendant, he cannot be permitted to represent the estate of the deceased plaintiff. Therefore, in my considered view, the 'right to sue' in the present case cannot accrue in favour of Deepak Beri. The 'right to sue' can only accrue in favour of Atul Beri, who was neither a party in the suit, nor had any conflict with the interest of Late Shri S.K. Beri.

7.As regards the widow and daughters of the deceased petitioner, learned counsel for the respondent/decree-holder has appeared and submitted that he raises no objection if they are absolved from any liability under the decree pertaining to the recovery of 122 tola 8 masha gold. He candidly stated that the execution of the decree is being pursued only against the male descendants namely, the sons of the deceased petitioner and not against his widow or daughters. In view of this clear and unambiguous stance taken by the decree-holder’s counsel, it follows that no adverse interest survives against the widow and daughters in respect of the subject matter of the decree, and therefore, they need not be substituted as legal representatives for the purpose of continuing the present revision petition.

Tajamul/CS* (S.B) Hon’ble Mr. Justice Qazi Jawad Ehsanullah

8.In view of the foregoing discussion, and in light of the express concession made by learned counsel for the respondent/decree-holder regarding the petitioner’s widow and daughters, the impugned judgments and decrees passed by the two Courts below are set aside to their extent and likewise the same are inoperative upon the fourth son Muhammad Ayub as neither he was party to the suit nor was privy to contractual arrangement forming the basis of decree.

However, to the extent of respondents No. 2 to 4, the concurrent judgments and decrees passed by the learned Courts below, pertaining to the recovery of 122 tola 8 masha gold or its market value, are upheld and shall remain binding and fully operative against them. The revision petition is accordingly disposed of in the above terms.

Announced Dt:20.11.2025 Sd/-

JUDGE

Tajamul/CS* (S.B) Hon’ble Mr. Justice Qazi Jawad Ehsanullah