Muhabat Shah etc Vs Saleem shah etc

Judgment Sheet

IN THE PESHAIYAR HIGH COART PESHAWAR

JUDICIAL DEPARTMENT

Writ Petition No. I 9 0 8-P/2 0 2 3

JADGMENT

Dote of hearing ., 2.11.2023 Petilioners.

( Muhobbat Shah etc) By: Mr. Muhammad lqbal Khan, advocate,

Resoondents.

(Saleem Shah etc) By: Mr.Shuhsb Khan, advocale *** * ** * * ** it * * * {. * * * *

WGUR ATIMAD, J,. ThrO ugh instant constitutional petition, petitioners have called in question judgment/order of learned Member Board of Revenue KP doted 20.10.2022 whereby he maintained order of Additional Commissioner Mardan Division, dated 27.4.2021 vide which application of petitioners under Section l2(2) CPC had been dismissed.

2 Facts as averred in the petition are that respondents filed an applicationfor partition in respect of various khatas, situated in village Qasami, Tehsil Katlang, Di s tr i c t Mar dan, wher e in pr e de c e s s or' in- int e r e s t of pr e s ent petitioners, namely, Rahim shah was a party who had given M.Ishsq Shah, (SB) Hofi'ble ML.lustice wiqar Ahmad

power of attorney to his legal heirs to represent him in the proceedings. During pendency of the proceeding, Rahim Shah died but his legal heirs were not brought on record to replace deceased Rahim Shah. During execution proceedings, when petitioners came to know about Jinality of said proceedings, they Jiled application under Section 12(2) CPC which was accepted by the AAC vide order 28.B.2020. Feeling aggrieved, respondents challenged same before Additional Deputy Commissioner Mardan who reversed the order of AAC vide order dated 25.11.2020 which order was maintained by the Additional Commissioner as well as Member Board of Revenue, Khyber Pakhtunklnva. Instant petition was then filed by the petitioners praying .for acc eptance of the ir appl ic at ion file d under Section 12(2) C.P.C., ft1eant for setting aside the partition proceedings iniliated by the respondents 3 I have heard arguments oflearned counselfor parties and have gone through the record with their valuable assistance

M.Ishaq Shah, (SB) Hon'ble Mr-lustice lllqar Ahmad

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4 Perusal of record reveals that predecessor-in- interest of the petitioners, namely Rahim Shah, was party in the original proceedings ofpartition and he was being represented by his son Muhabbat Shah as special attorney. He had subsequently died during pendency of the proceedings and his legal heirs had not been impleaded but the partition proceedings had been finalized after allowing partition applicationfiled by respondents, vide order dated 10.1.2019 passed by Additional Assistant Commissioner/AC I't Grade, Katlang. When said order passed therein had attained finality, then petitioners fi.led application under section I2(2) CPC for setting aside of the proceedings and subsequent orders, just because of the fact that legal heirs of Rahim Shah had not been impleaded in the application for partition. It is not denied that legal heirs of Rahim Shah were in l*towledga of pendency of the proceedings in his life time and his real son, namely, Muhabbat Shah, (who is also petitioner No.l in the instant petition), was also representing him as special attorney. The question for determination in the instant proceedings was whether a personwho is impleaded as a party in M.Ishqq Shoh, (SB) Hon'ble M^Jasice Wlqat Ahn ad

sorile proceedings, is duly noticed and dies during pendency of such proceedings at the original side or appellate or reyisional forum and his legal heirs are not impleaded then orders passed in such proceedings (which had alreafii ottained finality), may subsequently be questioned on the only ground of non-impleading such legal heirs

5 Cases of death, marriage and insolvency of parties were aimed to be regulated under Order-MII CPC. Rule-I thereof was providing that where the right to sue survived o suit would not abate with death of plaintiff or defendant. Rule-2 thereof was providing for a case where one of the plaintiff or defendant would die and the right to sue was surviving against the remaining defendant or defendants alone. In said cose en entry to this said effect was required to be made and suit wqs then to be proceeded further, Rule-3 of Order-XflI was providing that where one of several plaintiffs died then legal heirs of such plaintiff should be impleaded but sub-rule-2 was providing that where no application was filed within time allowed by lm,v then the court may proceed with the suit and any order made or judgment announced in such Mlshaq thah, (SB) Hon'ble Mllustice lliqat Ahmad

suit would have same ffict and force qs it has been made or pronotmced before the death had taken place. Rule-4 was providing for a case where one of several defendants or sole defendant died. In said case, the procedure has been provided in sub-rules-l and 2 while consequences of not impleading has also been provided in sub-rules 3 and 4 thereof. Said sub-rules were added subsequently by Ordinance No.t2 of 1972. Rule 4 of Order- WI is relevant for present case and same is also reproduced hereunder for ready reference:-

"4. Procedure in case of death of one of several defen dants or o sole de _(l) Where one of two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants alone 1 [,or on receipt of an intimation of the death of such defendant from the person nominated by him for that purpose under rule 13, Order VIIII, or a sole defendant or sole surviving defendant dies and the right to sue survives, the Court ,on an application made in thqt behalf, shall csuse the legal representative of the deceased defendant to be made q party and shall proceed with the suit. (2) Any person so made a pqrty may make any defence appropriate to his character as legal representotive of the deceqsed defendant. I Ins' by the I-cw Reforms Ordinance, 1972 (12 of 1972), s' 2 and Sch' for the original rule 10i. 2Sbus. ibid., s.2, for the original sub rule (2). Code ofCivil Procedure, 1908 [1908 : YJ Page 179 of 370 t [(3) When within the time limited by lqw no application is made or intimation is given under sub rule (l), the Court may proceed with the suit, and any (SB) flon'bte Mr.tusice wrqo, Ahnqd M.Ishaq Shqh,

order made or judgment pronounced in such suit shall, notwithstanding the death of such defendant, have the same force and ffict as if it had been pronounced before the death took place.l. 2 t@ k shqll not be necessary to substitute the legal representqtives ofany such defendant who has failed to file a written stqtement or has failed to appeqr and contest the suit at the hearing; andjudgment may in such case be pronounced against the said defendant notwithstanding his death, and such judgment shall have the same force and ffict as if had been pronounced before his death took place."

Sub-rules-3 and 4 of Rule-4 have been inserted with a particular aim and object. In the proceedings of nature like matter in hand there are normally numerous parties. It may happen that some of the numerous parties may die during proceedings and the applicant or petitioner do not have knowledge of their death. The proceedings is also being contested by the other parties and once same attained finality after a long run of litigation throughout all the forums then the legal heirs of deceased parties may turn up and file an application for re-opening the whole proceedings Such re-opening of the proceedings would not only be fficting rights of successful parties in the litigation, in respect of their established rights but same would also be against the public policy because taking the matter in this way would leave the civil lll.Ishaq Shah, (SB) Hov'ble Mt.Jastice |nqat Ahmad

litigation unending in most of the cases. It was for suppressing this mischief that sub-rules-3 and 4 have been added to rule-4 of Order-WI CPC. Sub-Rule-i was expressly laying down within the time limited by law no application is made or intimation is given under sub-rule-l the court may proceed with the suit and any order made or iudgment pronouncement in such suit would hove same force and ffict as if it had been pronounced before the death had taken place. If the original defendant is not served properly and the legal heirs also kept uncwqre of the proceedings then it would be a dffirent case but in the case in hand it stood establish on record that son of the deceased (petitioner No'1) was fully aware of the proceedings in the partition application Hon'ble Supreme Court of Pakistan while giving its iudgnent in the case of Sheikh Shahzod alias Fareed Ahmed Vs Mian Abdul eed ond 2 others reported as 200 7 SCMR 941 had, inter alia, held that afier Promulgation of Law Reform Ordinance' 1972 the provision concerning abetment ofcivil causes had been deleted and thereafter legal heirs of any person dying during pendency of litigation would automatically become bound by the decision against their predecessor-in-interest, eyen without

(SB)Hoa'blc Mr.lustlce mqot Aimod M.Ishaq Shah,

irnpleadment. Relevant observations of the Hon,ble Apex Court are also reproduced hereunder for ready;- n4. Il is u known fact that the, provisions concerning abatement of civil causes have long been deleted from the Civil Procedure Code through Law Reforms Ordinance, 1972.

Thereafier, the legal heirs of any person dying during the pendency of litigation automatically become bound by the decision against their predecessor-in-interest, even without impleadmenl Thus, the judgment, dated 17-5- 2001 would be binding on all the legul heirs of the deceased Sheikh Muhammad Ishuque provided they are the legal heirs. Sheikh Farid Ahmed ulias Sheikh Shahzad, if happens to be the son of Sheikh Muhammad Ishaque, is bound by such dccision and hence is a party directly alfected by such judgment but without impleadment. He, therefore, is entitled to lile a petition or appeal, as the case may be, against such judgment. In case of being a son, he is never a slranger to the proceedings."

Further reliance in this respect may also be placed on judgment of Hon'ble Lahore High Court rendered in the case of Ghulatn Fatima Vs Dur Muhammud and others norted ss 2015 MLD 1169L ahord wh ere the Hon'ble High Court, inter alia, held:- u6, As regards the authority of suid counsel to plead the case on behalf of deceused Peeran Dilta before this Court on 8-3-2011, it is suflice to say thal Peeran Ditta along with his four sons i.e. M.Ishaq Shah, (SB) Hon'ble MLtusice Wqar Ahmad

Ghulam Rasool, Ghulam Sorwar, Ghulam Mustafa and Ghulam Haider being unsuccessful defendants ftled civil revision in his life time. The interest of sll lhe defendants/revision pelitioners was common. During the pendency of revision petition Peeran Ditta died. It is not the case of the applicants who are daughters of peeran Ditta that their brothers had colluded with the plaintiffs/respondents of the revision petition meaning thereby that there was no occasion to misrepresent the facts/cose before this Court at the time of final arguments of civil revision. Notwithstanding the above, Jirctly, it was the obligation of the other revision petitioners, who were sons of Peeran Dittu, to bring on record the lefi over legal heirs of Peeran Ditta, that is, the applicants on recordl secondly, it was the duty of the applicants to come forward and become a party in lhe revision petilion; thirdly, other petitioners of civil revision were legal heirs of Peeran Ditta, deceased, therefore, this cannot be said that the orderfiudgment und decree were passed without impleading the legal heirs of Peeran Ditta. As stated above, it was a common interest of Peeran Ditta and other revision petitioners; and, other revision petitioners had contested the revision petition so no prejudice was caused to other revision petitioners and the applicants by the impugned order/judgment and decree. Lastly, the provisions of Order WII, C.P.C., which are not applicable to revisional jurisdiction of this Court, have already been amended by the Luw Reforms Ordinance,1972, and if any of the petitioners, dies M.Ishaq Shah, (SB) Hon'ble Mr.lunice mqa, Ahrnqd

it does not abate the revision petition, hence the order, in the given circumstances, could be possed in the instant cose without impleading the legal heirs of the deceased/Perran Ditta, as held in the case of Khan Sahib Khan Muhammad Saadat Ali Khan v. The Administrator Corporation of City of Lahore (PLD 1949 Lahore S4l), perdil and others v. Barkal and others (PLD 1gS3 peshawar l4), Muhammad Sadiq v. Muhammsd Sakhi (pLD 1989 SC 755) and Bashir Ahmad through I.Rs. u Muhammad Hussain and others (2010 SCMR 822). Even otherwise, lhe revisional proceedings ore always considered as proceedings between a higher Court and a lower Court, This Courl afier examining the record of the case dismissed the revision petition. The applicants huve not alleged that the judgment und decree passed in C.R No.372-D/1996 suffer from misreuding or non- reading of evidence. Thus, in the given circumstances, death of Peeran Ditts and invalidity of his power of attorney executed in favour of above said counsel was not fatal and, therefore, it is not a case of misrepresentation within the contemplation of section l2(2), C,P.C."

6 The learned Member-Il, Board of

Revenue, Khyber Pakhtunkhwa, in the impugned order dated 20.12.2022 in the instant case (while dismissing revision of petitioners) had dealt with matter in detail, M,Ishqq Shah, (SB) Hon'ble Mr.J&stlce Wiqot Ahmad

ll

relevant portion of which is also reproduced below for ready reference:-

"Ftott perusal of record of lhe case and argumenls odvanced at the bar, it reveals thal the deceased Rahim Shah was well represented during court proceedings by his legal heirs and their share are being allotted' so the partition order cannot be revetsed on the sole basis meaning thereby that the pleas of commilting fraud was baseless. Deceased Rahim Shah daring life time had given power of attorney to his legal heirs. Afler tiling application for offrcial partition by the present petitioner, tegol fotmalities were completed and lhereafier partition order was passed by the trial court. No illegality or irregularity was seen on record through which it could be presumed that the orders of the court below were unlawful."

6.On interpretation of Rule-4 Order-XXII CPL, this court has also reached the conclusion that non- impleadment of legal heirs of one of the deceased respondents would not vitiate the proceedings or resultant orders, inthe case inhand

7 In the light of above discussion, lhere seems to be no illegatity or any violation of law which may render the impugned

(SB)Hon'bte Mt,tu$tice Wqat Ahmqd M.Ishaq Shoh,

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orders as unsustainable. Learned counselfor petitioners has also failed to point out any such infirmity in the impugned orders of the revenue hierarchy, which may warrant interference of this court in exercise of its constitutional iurisdiction. Thus finding no substance, this writ petition is dismissed.

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Date of hearlng & announcement ol,Iudgment .....,... .2.11.2023

Date ol Prcparation ond &gning of Jutlgnen .'.............'....... ....30.11,2023 M.lshaq shah,

(SB)on'ble Mt.tusice Wlqat Ahmad