2013 M L D 1482
[Balochistan]
Before Muhammad Noor Meskanzai and Muhammad Hashim Khan Kakar, JJ
Dr. ABDUL RAZIQ and 2 others ---Appellants
Versus
Mst. HAMEEDA BEGUM and 5 others ---Respondents
Regular First Appeal No.129 of 2009, decided on 28th May, 2013.
Suit for damages ---
----Death of defendant ---Effect ---Indivisible claim ---During pendency of proceedings before
Trial Court, one of the defendants died and subsequent thereto, suit was dismissed by Trial
Court ---Validity ---Suit for damages was incompetent and not maintainable against defendant
who had died during pendency of proceedings and prior to decree passed against him ---Relief
sought against defendant was indivisible and joint, therefore, suit in such circumstances was
bound to abate collectively ---High Court did not find any illegality in judgment and decree
passed by Trial Court and suit of plaintiff was rightly dismissed ---Appeal was dismissed in
circumstances.
Mst. Maqbool Begum and others v. Gullan and others PLD 1982 SC 46; Ms t. Nasri
Begum v. Virgil L. Moore, Consular for Administration, Embassy of the United States of
America and 6 others 1989 CLC 511; Mercantile Co -operative Bank Ltd. v. Messrs Habib and
Co. and others PLD 1967 Kar. 755; Maniramlala Baliramlala v. Mt. Chatti bai AIR 1937 Nagpur
216; Mahant Salig Ram v. Charan Dass and another AIR 1939 Lah. 492; Govt. of Punjab
through Secretary Ministry of Agriculture v. Mst. Kamina 1990 CLC 404; M. Veerappa v.
Evelyn Sequeria 1989 MLD 3225 and Retanlal Bhannalal Mahajan v. Ba boolal Hajarilal Jain
AIR 1960 Madhya Pradesh 200 ref.
Ch. Mumtaz Yousaf for Appellants.
Date of hearing: 9th May, 2013.
JUDGMENT
MUHAMMAD NOOR MESKANZAI, J. ---Instant appeal is directed against the order
dated 24th August, 2009 passed by the Senior Civil Judge -I, Quetta whereby the suit filed by the
appellants was dismissed.
2. Facts relevant for disposal of instant appeal are that the appellants filed a suit for
recovery of Rs.2,28,000,00 as damages against respondents in the court of Senio r Civil Judge -I,
Quetta. It was averred in the plaint that the plaintiffs were in possession of a house bearing No.6 -
7/78(5)) constructed on Plot No.6 -7/104 situated at Sheikhan Street, Quaid Abad, Toghi Road,
Quetta. The defendant No.1 initiated proceedin gs under the settlement laws against plaintiffs
claiming therein that she is owner of the house. The matter went up to the Hon'ble Supreme
Court of Pakistan and the apex Court vide order dated 22nd May, 1998 decided the matter
declaring the plaintiff as te nant and defendant No.1 as owner. On 29th June, 2000 the defendant
No.1 forcibly took over the possession of the said house from plaintiff by throwing out the house
held articles i.e. T.V., Refriegerator, Electronic appliances etc. amounting to Rs.300,000 and
injuring him. Besides, a criminal case under section 107/151, Cr.P.C. was also registered against
the plaintiffs. Resultantly the plaintiff filed a C.P., before this court which was dismissed,
however, on filing C.P.L.A. No.80 -Q of 2002 defendant No.1' s grand son appeared and
undertook that possession of the house will be handed over to plaintiffs within seven days. It was
further averred in the plaint that despite above undertaking instead of handing over possession of
the house to plaintiff, the house was further sold to one Dost Muhammad (defendant No.4) who
further mutated the same in the name of defendant No.5. Besides above, in the year 2004 the
defendants Nos.1, 3 and 5 instituted a suit for declaration and permanent injunction against the
plainti ff No.1 which was later on withdrawn with permission to file a fresh. The plaintiff No. 1
challenged the order passed by the learned Senior Civil Judge before the Additional District
Judge, Quetta. The appeal filed by the plaintiff No. 1 was accepted and t he order of learned trial
Court to the extent of giving permission to the defendants to file afresh suit was set aside. It was
further averred in the suit that defendant No. 5 filed an eviction application against plaintiff No.
1 wherein he produced an aff idavit which contains filthy and derogatory language and frivolous
allegations. The witnesses produced in said eviction application also levelled certain baseless
allegation against plaintiff No. 1, as such; for all these facts the plaintiffs are entitled for a decree
in the sum of Rs.2,28,00,000 (Rupees two crores, twenty eight lacs only).
3. The suit was contested by defendants by way of filing written statement, wherein besides
raising certain preliminary legal objections, the claim of plaintiffs was r epudiated on merits as
well. Thereafter, the learned trial court framed issues, the plaintiffs/appellants produced
evidence, however; vide order referred to herein above learned trial court dismissed the suit filed
by the plaintiffs.
4. The facts incorpo rated in the body of appeal make the competency of appeal
questionable. It may be observed that instant appeal was filed on 14th October, 2009 against six
persons out of whom one namely Mst. Hameeda Begum was admitted to have died during the
pendency of th e suit before the trial Court. For the sake of convenience relevant extract from the
appeal is reproduced:
"That during proceedings of the suit before the trial Court the respondent No.1 i.e.
Hameeda Begum was expired. As the respondents Nos. 2 and 3 ar e the relatives of respondent
No. 1, an application was filed by the appellant before the trial Court that the respondents Nos. 2
and 3 may kindly be directed to furnish the legal heirs (sic) of respondent No. 1, but till date no
list of legal heirs has be en provided to the appellant, hence the name of respondent No. 1 is
incorporated in the instant appeal".
5. This fact was not disclosed by the learned counsel for appellants while arguing the case at
Kacha Peshi stage, so the appeal was admitted to regul ar hearing nevertheless on 4th May, 2011
the process server reported that respondent No. 1 has died three years ago. Learned counsel for
appellant was directed to file amended title of the petition by bringing on record the legal heirs of
deceased responde nt No. 1. Learned counsel for respondent filed an application seeking direction
to respondents for providing list of legal heirs of deceased respondent No.1. On 31st May, 2011,
following order was passed: --
"Despite repeated calls counsel for appellant is not in attendance. Admittedly, respondent
No. 1 has died; the appellant wants to file amended title by bringing on record the L.Rs. of
respondent No. I. Prior to providing the list of L.Rs. of deceased respondent No. 1 to appellant,
learned counsel for the appellant, to satisfy the Court that in such like cases upon the death of
respondent/defendant where the suit is dismissed whether the cause of action survives against the
L.Rs. of deceased respondent"?
6. On the next date of hearing when the learned counsel for respondent was again
confronted with such situation he requested for time and following order was passed: --
"When the learned counsel for the appellant was confronted with the proposition that
consequent upon the death of respondent No. 1 w hether right to sue survives against the Legal
heirs of respondent No. 1; he frankly conceded to the proposition and stated that the suit to such
extent abates. Again the question arises whether in such circumstances and in view of the prayer
clause of sui t, the suit will be found maintainable? The learned counsel for the parties to address
(sic) on this point on the next date of hearing".
7. The learned counsel for appellants instead of satisfying the court regarding points
formulated chose/preferred to remain absent. Perusal of record reflects that the appeal in question
is not maintainable for three vital reasons. Firstly, the respondent No.1 died during the course of
proceedings before the trial Court, the L.Rs. of deceased defendant were not brought o n record.
Legally an appeal against a dead person is absolutely incompetent. Since the legal heirs of
respondent No. 1 were not brought on record, therefore, the decree to their extent has attained
finality and could not be challenged on account of being b arred by time. Secondly, the relief
claimed against the defendant/respondent is indivisible and joint. The responsibility and liability
of each defendant in terms of money, the act done, or the loss caused has not been bifurcated,
therefore, in view of joi nt and indivisible relief, the appeal in present form is incompetent. By
holding the view I am fortified by the dictum laid down in the judgment titled as Mst. Maqbool
Begum and others v. Gullan and others reported in PLD 1982 SC 46. Relevant observations
therefrom are reproduced herein below: --
"As is evident the view expressed in the above paragraph is quite in accord with long list
of precedents quoted therein. In our opinion this was a clear case of an incompetent and not
maintainable appeal due to n on-impleadment of necessary parties, and as the subject -matter of
the dispute namely the impugned sale of year 1951 in favour of Muhammad Yaqub
(vendee/defendant) now represented by some of his legal representatives namely the (petitioners)
was can indivis ible transaction, therefore, the High Court was justified in holding that the appeal
had abated in toto and was not maintainable for the fatal infirmity hereinbefore mentioned. It was
argued that if some of the heirs of the vendee had not been impleaded, a t the most, it could affect
only the shares of the non -impleaded heirs inasmuch as according to Muhammad Law every heir
succeeds only to the extent of his respective share along with others though as tenants in
common. The contention has no merit inasmuch as the present case is to be examined from the
point of view of the oneness of the sale above mentioned and not parts of that sale which was to
stand or fall as a whole.
8. Thirdly, the suit has been filed for damages. During the pendency of the proceedi ngs
before the trial Court, one of the defendants i.e. defendant No.1 died and subsequent thereto, the
suit was dismissed by the trial Court. The law on the subject stands settled that a suit for
damages will be incompetent and not maintainable against a d efendant who dies during the
pendency of the proceedings and prior to a decree passed against him/her. By holding the view,
we are fortified by the dictum laid down in the following cases: --
A. Case titled as (Mst. Nasri Begum v. Virgil L. Moore, Consul ar for Administration,
Embassy of the United States of America and 6 others) reported in 1989 CLC 511 (relevant at
pages 512 and 13), wherein it has been observed: --
"To put it differently, the question is whether cause of action in a suit for damages arising
out of the false and malicious prosecution was personal to the plaintiff and was extinguished
with his death during the trial of the suit brought by him against t he wrong doers. This question
came up for examination before the Courts on numerous occasions and the answer given in the
long unbroken chain of decisions was that to such type of an action, the maxim actio personalis
moritur -cum-persona applied and the ca use disappeared and was extinguished with the death of
the wrong doer or the party wronged. The position, however, is different when the cause had
matured in the decree in the plaintiff's lifetime because on the passing of the decree, there is no
longer a "actio personalis -cum" in existence but then the matter has passed into a judgment and
merged in the estate of the deceased. Similarly, where a tortfeasor's estate stood benefited by the
wrong doer and an action would lie against the representatives of the wrong doer. In the present
case, there is doubt that right to get compensation for malicious prosecution was personal to the
person wronged to which the above maxim of law fully applied. As said above, it is a well -
established principle of law that if the wronged person brought a suit in his life -time for damages
on account of his malicious prosecution but died before passing of a decree in his favour, the suit
would clearly abate and his legal representatives could not continue the suit after his death.
B. Likewise in the judgment reported in PLD 1967 Karachi page 755 (Mercantile Co -
operative Bank Ltd. v. Messrs Habib & Co. and others) relevant at page -763, it has been
observed as under: --
"As has been already stated the suit was filed on 15th August 1961 and the only
defendant Sajan died on 26 -9-1961 and the question which requires to be considered for the
purposes of the preliminary issue is whether the plaintiffs' right to sue survives against the
present four defendants who are the legal represent atives of the original defendant Sajan. From
the averments of the plaint it is clear that the basis of the claim against the original defendant is
his failure to perform the duty which he owed to the plaintiffs as their auditor and that this failure
was du e to his negligence. There is no allegation of fraud, dishonesty or misappropriation on the
part of the said Sajan, nor is it alleged that as a result of the said negligence any benefit has
accrued to the estate of the original defendant. The claim is thus for unliquidated damages based
upon the negligence of the original defendant in the performance of his duty as an auditor
without, however, he or his estate having derived any material benefit from it. The action,
therefore, is plainly one for tort. The f act that the original defendant was appointed as auditor by
the plaintiffs does not by any means render this claim as being based upon contract. The question
which then arises is whether such an action could only be sustained as a personal action against
the deceased and whether that action died with him by the application of the common law maxim
actio pesonalis moritur cum persona."
C. Similarly in the judgment titled as Mir Shakeelur Rehman and others v. Yahya
Bakhtiar and others, (relevant at pages 61 9-620(sic.)), it was held as under: --
18. In the domain of civil law, the person wronged can file a suit for damages for
malicious prosecution. It is a personal action and dies with the death of either of the parties. This
was so held in:
(i) Maniraml ala Baliramlala v. Mt.Chattibai AIR 1937 Nagpur 216.
(ii) Mahant Salig Ram v. Charan Dass and another AIR 1939 Lahore 492.
(iii) Mst. Nasri Begum v. Virgil L. Moore, Consular for Administration Embassy of United
States of America 1989 CLC 511.
(iv) Govt. of Punjab through Secretary Ministry of Agriculture v. Mst. Kamina 1990 CLC
404.
(v) Mercantile Cooperative Bank Ltd. v. Messrs Habib and Co. and others PLD 1967
Karachi 755.
(vi) M Veerappa v. Evelyn Sequeria 1989 MLD 3225.
19. In Retanlal Bha nnalal Mahajan v. Baboolal Hajarilal Jain (AIR 1960 Madhya Pradesh
200), the Court referred to section 306 of the Succession Act held that "personal injuries" under
the afore -referred provision of the Act includes physical as well as mental injuries and a claim
for compensation for loss of reputation or mental agony does not survive after the death of the
party injured. However, the position would be different where suit for defamation has culminated
in a judgment and decree in favour of the plaintiff. The decree would survive death of the decree -
holder because the cause of action merges into the said decree which is part of his estate. His
legal representatives have a right to defend the decree and are therefore entitled to be substituted.
9. The appeal o f appellant besides, warranting dismissal for non -prosecution was also not
found maintainable on above reasons. Additionally, the relief sought against the defendant was
indivisible and joint; therefore, the suit in such circumstances was bound to abate co llectively.
Perusal of judgment impugned makes it crystal clear that there is no illegality or irregularity in
the same.
For the foregoing reasons, we see no force in the appeal, which is dismissed with no
order as to costs. Decree sheet be drawn.
Above are the reasons of our short order dated 9th May, 2013.
MH/53/Q Appeal 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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