2017 C L C 382
[Balochistan]
Before Mrs. Syeda Tahira Safdar and Syed Anwar Aftab, JJ
AKHTAR HUSSAIN ----Petitioner
Versus
WIDOW OF MALIK NAEEM ULLAH and 3 others ----Respondents
C.P. No.813 of 2016, decided on 21st November, 2016.
Civil Procedure Code (V of 1908) ---
----O. XXII, R. 1 & O. IX, R. 13 ---Suit against dead person ---Scope ---Suit against dead person
was decreed ex parte wherein execution proceedings were also completed ---Application for
setting aside ex -parte decree was moved which was accepted and both the suit and execution
petition were dismissed ---Validity ---Suit against dead person was not valid and could not
proceed ---Where a person was dead at the time of filing of suit, such defect could not be cured
by bringing on record his legal heirs ---Both the courts below were correct in the findings that
neither the suit nor the execution petition were maintainable ---No illegality had been pointed out
in the impugned orders passed by the courts below ---Constitutional petition was dismissed with
cost.
Muhammad Yar v. Muhammad Amin 2013 SCMR 464 rel.
Zahid Malik for Petitioner.
Nemo for Respondents.
Date of hearing: 5th October, 2016.
ORDER
MRS. SYEDA TAHIRA SAFDAR, J. --- The petitioner Akhtar Hussain questioned the
orders dated 22nd September 20 15 of Civil Judge -IV, Quetta, whereby the application under
Order IX Rule 13 Civil Procedure Code (C.P.C.) filed by the legal heirs of Naeemullah was
allowed, as a result thereof the judgment and decree dated 30th September 2010 was set aside
and the execu tion application was also ordered to be dismissed, and dated 4th April 2016 of the
appellate court (Additional District Judge -II, Quetta), whereby the findings of the trial court were
upheld.
2. It was case of the petitioner that he initially filed a suit seeking declaration of his title,
with specific performance of a contract and for consequential relief against one Naeemullah,
husband of respondent No.1, but he despite service of notice failed to appear, thus proceedings
were held ex -parte against him (N aeemullah). While the trial court relied on the material before
it and decreed the suit in the terms as prayed vide judgment dated 30th September 2010. Thus to
implement the decree an application was filed for the purpose, and he (petitioner) was succeeded
to execute the decree to the extent of share of the judgment debtor Naeemullah, and an area of
216 sq: ft of the subject property was transferred in his (petitioner's) name and the execution
application was consigned to record on 25th March, 2011. It was his case that the executing court
allowed him (petitioner) to file a separate suit for the remaining part of the subject property,
against the co -sharers. This order was though questioned by filing a revision, but the relief was
declined, thus on 3rd Octob er, 2011 he (petitioner) filed a fresh suit against the legal heirs of
Malik Inayatullah. This suit was dismissed vide order dated 5th October, 2011, followed by an
appeal, and he succeeded to obtain an order for remand of the case to the trial court vide order
dated 02nd December, 2011. It was further his case that later in time he again applied for
execution of the remaining part of the decree, when in the month of August, 2015 an application
was filed by some unknown persons for setting aside of ex parte order and decree. While this
application was contested, but the trial court in complete disregard of law not only allowed the
application, but also dismissed the suit along with the execution application vide order dated
22nd September, 2015. The revision filed against the order also met with the same fate, hence
the instant petition.
3. The petitioner pressed the instant petition while asserting that the impugned orders were
passed in ignorance of the law, thus not sustainable. Further, if the application under Order IX,
Rule 13, C.P.C. was allowed, the only order which could have been passed that the case be
remanded to the trial court for a decision on merit. Further, the fact that the application was filed
beyond the stipulated period, but the law of li mitation was over looked, and the relief was
allowed in contravention of the law. The request was for setting aside of the impugned orders
and issuance of a direction to the trial court to execute the decree in its true sense, or in alternate
the case be r emanded to the trial court for a decision on merit after setting aside of the ex parte
decree.
4. The learned counsel for the petitioner was heard at length, who just repeated the stance
taken in the petition with no addition.
5. To get acquainted with the true facts the record of the trial court pertaining, to the suit,
the execution applications and of the revision petition were called and perused. The record
revealed that the petitioner approached the court for specific performance of an agreement
assert ed to be executed between him and one Naeemullah. He (petitioner) claimed to have
purchased the land bearing Khasra No. 430, Ward No. 36 measuring 2000 sq: ft. situated at
Zonki Ram, Road, Quetta in the year 1995, since then in possession and constructed a house, but
the entries in the Record of Rights remained in the name of Naeemullah during all these years
despite serious efforts on his part. In addition some arbitration proceedings were referred to settle
the dispute, but not attained finality. The tria l court put the defendant Naeemullah, predecessor
of respondent No. 1, on notice through courier service, as remained unserved, thus the
substituted mode was adopted, and the notice was published in the newspaper Daily Express,
Faisalabad. The defendant (N aeemullah) was proceeded against ex -parte on 16th September
2010, as he remained absent, evidence was produced in shape of affidavits, while vide judgment
dated 30th September, 2010 the suit was decreed in the terms as prayed.
6. It was further evident fro m the record that the execution of the decree was sought by
filing application No.34 of 2010, consequent thereto an area of 216 sq: ft. from the subject
property was transferred in the name of the petitioner (decree holder). It was for the reason that
the subject property reported to exist in the names of number of persons including Naeemullah in
the revenue record, while the share recorded in his (Naeemullah's) name was only 216 Sq: ft. out
of the total area of 2000 Sq. ft. This execution application was t hough consigned to record, but
the petitioner was allowed to file a fresh suit for the non transferred area of the subject property
against the remaining shareholders. The petitioner though questioned the order of dismissal of
the execution application, bu t failed vide order dated 22nd July, 2011 of Additional District
Judge -III, Quetta. Consequent thereto a suit was filed against the widow and remaining sons and
daughters of Inayatullah, the original owner, but the trial court in exercise of powers availab le
under Order VII, Rule 11, C.P.C. dismissed the suit vide order dated 5th October, 2011 of Civil
Judge -IV, Quetta. The petitioner succeeded in appeal, and the case was remanded to the trial
court for a decision on merit vide order dated 2nd December 2011 of Additional District Judge -I,
Quetta. The record unable to disclose the fate of the referred to suit on its remand.
7. The record further spelt out the facts that a second application was filed on 15th May,
2015 for execution of the remaining part of th e decree, meanwhile an application under Order
IX, Rule 13, C.P.C. was filed by a person, claimed himself to be the son of Naeemullah (the
judgment debtor). The application was with the assertions that the suit was filed against a dead
person, who was surv ived by a son and two daughters, along with a widow. The date of death of
Naeemullah was described as 9th March 2008, and the place of death was Jaranwala, District
Faisalabad. Non service of the notice was pressed with the assertion that they were not in
knowledge of pending of the suit before the trial court. This application was opposed by the
petitioner not only on factual and legal grounds, but the death of Naeemullah was also contested.
The trial court allowed the application vide order dated 2nd Dece mber, 2015, and held that the
suit was not valid as filed against a dead person, thus could not be revived by impleading his
legal heirs. As a result the judgment and decree dated 30th September, 2010 was set aside, and
the execution application was reject ed with an observation that if desired the petitioner might file
a fresh suit against the legal heirs of the deceased. The revision petition filed against the order
also failed.
8. The suit was only against Naeemullah, the sole defendant, with no mention o f his death.
The record of the trial court reveals that the notices were issued in the name of Naeemullah,
while the notice for the date 2nd August, 2010 returned with the report that. The trial court
ignored the report, and repeated the notice through pub lication in the newspaper. As the
publication was not responded, therefore, Naeemullah was proceeded against ex parte on 16th
September, 2010. The suit was decreed in the terms of relief prayed vide judgment dated 30th
December, 2010, with complete relianc e on the ex parte evidence filed in the shape of affidavits.
An application bearing No.32 of 2010 was filed for execution of decree was entertained by the
executing court. The order sheet maintained by the executing court for 30th November, 2010 was
with a direction to the petitioner to provide the details of legal heirs as the death of Naeemullah
was disclosed before the court by the report endorsed on the envelope. The order sheets
maintained in the case file further recorded the fact that the learned cou nsel for the decree holder
showed his inability to provide the details, thus on 8th December, 2010 the notice was issued in
the name of "widow of Naeemullah" on counsel's request. This notice also returned un -served as
it was refused to receive. This act o f refusal resulted in issuance of process for transfer of the
subject property in the name of decree holder (petitioner), as a consequence thereof an area of
216 sq. ft. was entered in his (petitioner's) name. The executing court consigned the application
to record as the remaining part of the decree was held to be not executable vide order dated 31st
March, 2011. Though a suit was filed in view of the permission granted, but with no mention of
its fate.
9. The record further disclosed the fact that the sec ond application bearing No.7 of 2015
filed on 20th May, 2015 was also for execution of the decree against the judgment debtor
Naeemullah. The court process issued in the name of Naeemullah again reported his death.
Meanwhile on 19th August 2015 an applicat ion under Order IX, Rule 13, C.P.C. was filed by a
person, who described himself to be son of Naeemullah. This application was though strongly
contested by the petitioner, but it was allowed vide order dated 22nd September, 2015, and the
revision petition failed vide order dated 4th April, 2016, resulted in filing of the instant petition.
10. While dealing with the case in hand the basic question would be that whether a case lies
against a dead person? If filed what would be the legal value of the decision given in the suit?
Before dilating the question with reference to law certain facts to be noted that the date of death
of Naeemullah was stated to be 9th March, 2008, in the application filed by his legal heirs, while
the suit was filed in the year 2010, w ithout disclosing the fact of his (Naeemullah's) death.
Further, in response to the notice issued for Naeemullah at very initial stage, his death was
reported, but ignored, and the trial court opted to adopt the substituted mode of service and on
publicati on in newspaper proceeded against Naeemullah in his absence also passed the final
verdict. In addition the first execution application was filed in November, 2010; the case file
contained an application filed on 3rd December, 2010 with signatures of learne d counsel for the
petitioner, not only described the death, but was with the request to allow him to bring on record
the legal heirs of the deceased Naeemullah. The executing court issued notice in the name of
widow of Naeemullah, which was returned with t he report ( ) It was further noted with concern
that the executing court again unable to read the report as a whole, which was clearly in the
terms that some Afzal, Security Guard, refused to receive the letter. The service as required was
not effected, th us of no legal effect. The executing court remained contended and made no
efforts to ascertain the true facts. In addition on objections of respondent No.2 (Tehsildar,
Quetta) pertaining to the suit property, a joint holding, and only 216 sq. ft. existed i n the name of
judgment debtor Naeemullah as his share, ordered to transfer the mentioned area in the name of
decree holder (petitioner).
11. Certain facts further needed to be attended that the order to consign the execution
application to record was quest ioned, and vide order dated 20th July, 2011 of Additional District
Judge -III, Quetta the relief was declined, followed by a second application for execution of
decree again against Naeemullah (judgment debtor) with no mention of his death. The process
issued through courier service again with the fact of death of the judgment debtor. Despite the
above noted facts the application filed by one Malik Haroon Naeemullah son of Naeemullah on
19th August, 2015 was contested by the petitioner and the death was disp uted. The executing
court at this stage opted to un -earth the truth, thus directed the Assistant Commissioner
Jaranwala to make probe and affirm the death of Naeemullah. The report was with the fact that
the death of Naeemullah was reported, and in respons e thereto the relevant entries were effected
in the names of legal heirs of the deceased in the month of May 2008, which were still intact.
The death certificate of Naeemullah son of Inayatullah, available in the case file, was with the
date of death as 09 th March 2008.
12. The above noted facts established that Naeemullah was already dead, when the suit was
filed in 2010. While this fact came into the knowledge of the trial court at initial stage of the
trial, but was ignored and there were no efforts to a scertain the correct date which was essential
for further proceedings of the matter. The publication was made against a dead person, thus of no
legal effect. In addition the petitioner was in knowledge of death of Naeemullah, but he filed the
suit with con cealment of the facts. Though the petitioner in his first execution application
brought the fact on the record, but with no details of the date of death or of the legal heirs. The
process issued in the name of widow returned un -served, but the executing co urt without going
into the details of the entries on the envelope proceeded in casual manner, thus failed to adopt the
procedure as required.
13. Order XXII Civil Procedure Code (C.P.C.) is clear enough to deal with the situation
when either of the parties dies during the course of proceedings before the court, trial or
appellate, while mandated to bring on record the legal heirs if the right to sue survives. The
question in hand is some what different. It is to be determined that whether a suit could be fi led
against a person who was already dead at the time of filing of the suit? The answer would be in
negative. It is an established principle that a suit against a dead person is not valid, thus could not
proceed. Further, a person already dead at the time of filing of the suit, the defect could not be
cured by bringing on record his legal heirs. The Hon'ble Supreme Court while dealing with the
issue in case Muhammad Yar v. Muhammad Amin 2013 SCMR 464 held:
"Attending to the first question, the legal position by now is quite settled and explicit, in
that, where a suit/lis is against only one defendant/respondent of the case, undoubtedly it
shall be invalidly instituted being against a sole dead person (defendant) and shall be a
nullity in the eyes of t he law as a whole; it shall be a still born suit/lis; an altogether dead
matter, which cannot be reviewed; it shall; thus not merely be a defect which can be
cured, rather fatal blow to the cause. However, the position shall be different where the
lis is i nitiated against more than one defendants/respondents and out of them only one of
few are dead, while the others is / are alive in such a situation, it shall be a validly
initiated suit/lis in respect of the respondent(s), who are alive, but invalid qua th ose, who
are dead to cater for such a situation, it has been held in Malik Bashir Ahmed Khan and
another v. Qasim Ali and 12 others (PLD 2003 Lahore 615): -
"Obviously, if a suit has been filed against the only defendant, who was dead at the time
of institu tion, such suit shall be still born, non -existent, and a nullity in the eyes of law,
therefore, it could not be merely defective and thus, could not be reviews by impleading
the legal heirs of the deceased defendants. The plaintiff in such a situation, sub ject to law
may have the option to bring a fresh suit against the heirs on the basis of the same cause
of action. But, this rule shall not be applicable in a case, where the suit has been instituted
against more than one defendants and one of them was dead at the relevant time. The suit
shall not be nullity in totally, but would be validly instituted against the living defendants,
however, it would be defective qua the deceased party, which defect shall be curable by
the plaintiff bringing on record the hei rs of the deceased defendant. To support this view,
reliance can be placed on the following judgments:
Prima Pala Mul -Narain Mal v. Fauja Singh (AIR 1926 Lahore 153).
Roop Chand v. Sardar Khan and others (AIR 1928 Lahore 359).
Ghulam Qadir Khan v. Ghula m Hussain and others (AIR 1937 Lahore 794).
Nabi Bakhsh v. Malik Muhammad Akram, Settlement Commissioner and others (PLD
1969 Lahore 880), and
The Province of East Pakistan v. Major Nawab Khawaja Hasan Askary and others (PLD
1971 SC 82).
The above is the a pt and correct exposition of law and such judicial opinion of the Lahore
High Court is upheld and approved in its letter and spirit and should be taken to be the
view of this court."
The principle as laid down made it evident that the suit filed against a person who was
dead at the time of its institution is not valid, thus nullity in the eyes of law. This principle
applies in the instant case also. The courts, trial and revisional, were correct in the findings that
neither the suit, nor the execution appl ication were maintainable, and rightly dismissed the both.
No illegality was on part of the courts, trial and revisional, thus need not to be interfered.
The petition was filed with concealment of facts, thus dismissed with the cost of
Rs.15,000/ - (Rupees fifteen thousand only).
ZC/83/Bal. Petition dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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