P L D 2021 Balochistan 79
Before Abdul Hameed Baloch, J
SHABBIR AHMED--- Petitioner
Versus
MUHAMMAD MUZAMIL HUSSAIN and another---Respondents
Civil Revision Petition No.(s) 31 of 2018, decided on 5th November, 2020.
(a) Civil Procedure Code (V of 1908) ---
----O. XXII, R. 3 ---Procedure in case of death of one of several plaintiffs or of sole plaintiff --
-Scope ---Where no application is made or intimation is given of death of sole or one of
several plaintiffs the court proceed with the case and any or der made and judgment
pronounced in such suit notwithstanding of death of plaintiff have the same force and effect
as it had been made or pronounced before the death took place ---Death of plaintiff during
pendency of his suit would not cause his suit to abate, if no application for impleading his legal representative is brought within the period of limitation ---In absence of such
application for impleading legal representative of a deceased party, Court will continue with adjudication of the suit and decree so passed would be valid.
Muhammad Sadiq v. Muhammad Sakhi PLD 1989 SC 755 ref.
(b) Civil Procedure Code (V of 1908) ---
----O. XIV, Rr. 1 & 3 ---Framing of issues ---Material from which issues may be framed ---
Scope ---Issues are to be framed on the basis of material alleged by one party and denied by
other ---Court should frame issues with regard to material proposition of law or fact ---
Separate issues are to be framed ---Court is to frame proper issues so that a party could know
the controversy.
Juma Gul v. Gul Bibi 2015 MLD 1627 rel.
Anwar -ul-Haq for Petitioner.
Shahid Baloch and Ahmed Ali, Additional Advocate General for Respondents.
Date of hearing: 28th October, 2020.
JUDGMENT
ABDUL HAMEED BALOCH, J. ---Through this judgment I intend to dispose of
above titled civil revision petition filed by the petitioner/defendant against the judgment and
decree dated 30th May, 2018 (impugned judgment and decree) passed by learned District
Judge, Jaffarabad at Dera All ah Yar (appellate court) whereby the appeal filed by the
respondent/plaintiff was allowed and suit of the respondent/ plaintiff was decreed and petitioner/defendant was directed to hand over vacant possession of house in question to the respondent/plaintif f.
2. Concise facts of the case were that the respondent/plaintiff filed a suit for declaration,
re-possession and permanent injunction through consequential relief against the
petitioner/defendant before Senior Civil Judge, Jaffarabad at Dera Allah Yar (t rial court) in
respect of house constructed on a plot allotted by respondent/defendant No. 2 situated in Tehsil Colony Dera Allah Yar with the following prayer:
a. To declare that house in question was lawfully and legally allotted to the plaintiff by the defendant No. 2 vide order dated 29.11.2002;
b. To declare that defendant No. 1 has illegally, unlawfully and unjustifiably occupied the house in question of the plaintiff;
c. To declare that the plaintiff being lawful allottee of property/ house in questi on has
right of re -possession to put in possession of property/ house in question;
d. To order the defendant No. 1 to vacate the property/ house in question and the same be handed over to the plaintiff being lawful allottee;
e. To award the cost of the sui t.
f. Any other relief which this Hon'ble Court deem fit as per circumstances. Cost of the suit may also be awarded in favour of the plaintiff against the defendant.
3. The petitioner/defendant contested the suit on legal as well as factual grounds and
prayed for dismissal of the same. The respondent/ defendant No. 2 also filed written
statement. The trial court framed three issues out of the pleadings of the parties, whereafter; the parties to the lis produced their respective evidence and on conclusion the learned trial court vide judgment and decree dated 14th February, 2018 partly decreed the suit to the extent of allotment of plot in favour of the respondent/ plaintiff. The respondent/plaintiff being aggrieved filed appeal before District Judge, Jaffara bad at Dera Allah Yar, who was
pleased to set aside the judgment and decree of the trial court, vide judgment and decree dated 30th May, 2018 and decreed the suit of the respondent/ plaintiff, hence the petitioner/defendant is before this court.
4. On 24th September, 2020 the learned counsel for the petitioner/ defendant informed
that the petitioner/defendant has been expired and requested for filing amended title of the petition. On 28th October, 2020 it was informed that the respondent/plaintiff has also been
expired. The learned counsel further contended that the legal heirs of the parties have not made contact. In such view of the matter I have left no option but to decide this petition on the basis of available record.
5. Perused the record. The respondent/plaintiff filed a suit for declaration, re- possession
and permanent injunction through consequential relief before the trial court, which was
contested by petitioner/defendant on legal as well as factual grounds by filing written
statement. After concl uding evidence the learned trial court heard arguments and thereafter
partly decreed the suit vide judgment and decree dated 14th February, 2018. The relevant para of the judgment and decree is reproduced as under:
"27. Thus, the plaintiff' has only estab lished one portion of issue No.1 regarding
allotment of the disputed property on his name whereas the plaintiff failed to established ( -) that the defendant No. 1 is illegally and unlawfully occupied the
property in question. Therefore, the suit of the pla intiff is partly decreed in the terms
of allotment in favour of the plaintiff, the plaintiff and the defendant No. 1 are residing in their own portions on property in question, thus the illegal occupation has not been established.------"
6. Being aggrieved from the judgment and decree of the trial court the
respondent/plaintiff filed appeal before the District Judge, Jaffarabad at Dera Allah Yar, which was accepted vide judgment and decree dated 30th May, 2018 and the suit of respondent/plaintiff was decreed. The operative portion of the judgment is reproduced hereunder:
"Observation of learned trial court to declared ( -) his occupation as legal, was
unwarranted and without support of any legal provision, therefore, the impugned judgment dated 14.02.2018 is hereby set aside. The appellant is hereby declared as
legal allottee of the house situated at Ward No.1 Baldila Road Dera Allah Yar and directed the respondent to hand over its vacant possession to the appellant.--- "
7. Before discussing merit of the case, where one or more of the several plaintiffs died
whether the right of sue survive or not? It would be appropriate to reproduce Order XXII, Rule 3, C.P.C., which reads as under:
"Order XXII Rule 3. Procedure in case of death of one of several plainti ffs or of sole
plaintiff --(1) Where one of two or more plaintiffs dies and the right to sue does not
survive to the surviving plaintiffs alone; [or on receipt of an intimation of the death of such plaintiff from the person nominated by him for that purpose under rule 26, Order
VII or a sole plaintiff or sole surviving plaintiff dies and the right to sue survives the Court on an application made in that behalf shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit.
[(2) Where within the time allowed by law no application is made or intimation is given
under sub- rule (1), the Court may proceed with the suit and any order made or
judgment pronounced in such suit shall notwithstanding the death of such plaintiff have the same force and effect as if it had been made or pronounced before the death took place.] "
8. Under sub- Rule (2) of Rule 3 of Order XXII, C.P.C., where no application is made or
intimation is given of death of sole or one of several plaintiffs the court proceed with the
case and any order made and judgment pronounced in such suit notwithstanding of death of plaintiff have the same force and effect as it had been made or pronounced before the death took place. Death of plaintiff durin g pendency of his suit would not cause his suit to abate
after the amendment of Rule 3 of Order XXII of the Code, if no application for impleading
his legal representative is brought within the period of limitation. In absence of such application for imple ading legal representative of a deceased party court will continue with
adjudication of the suit and decree so passed would be valid. Reference is made to the case of Muhammad Sadiq v. Muhammad Sakhi PLD 1989 SC 755.
9. The petitioner/ defendant contested the suit and raised objection that the construction
over the plot was made jointly. The parties had sold the old house and constructed rooms over the plot. The petitioner/ defendant has also raised other legal and factual objections, but no issue was frame d in that regard. Under Order XIV, Rules 1, 3, C.P.C. the issues are to be
framed on the basis of material alleged by one party and denied by other. The court should frame issues with regard to material proposition of law or fact. Separate issues are to be
framed. It is duty of the court to frame proper issues. The party could know the controversy. The disputed fact on which evidence is to be led to enable an effective judgment. Reliance is placed on the case of this court Juma Gul v. Gul Bibi 2015 MLD 1627 , wherein it was held:
"12. No doubt it is duty of the parties to the suit to point out the framing of necessary issues, but it is equally the duty of the trial Court to frame necessary issues for determining the real controversy between the parties. Mere ly because the parties have
not pointed out, does not absolve the trial Court to perform its legal and statutory duty. Action or inaction on the part of the Court cannot prejudice a party to litigation."
For the above discussion the judgment and decree da ted 14th February, 2018 passed
by the learned Senior Civil Judge, Jaffarabad at Dera Allah Yar and judgment and decree dated 30th May, 2018 passed by learned District Judge, Jaffarabad at Dera Allah Yar are set
aside. The case is remanded to the trial Cour t with direction to issue notices to the sons of
respondent/plaintiffs namely Waqas and Fahad mentioned in the list of legal heirs of plaintiff in the suit and implead all legal heirs of respondent/plaintiff and petitioner/defendant No. 1, frame proper iss ues arising out of the pleadings of the parties, record evidence and then
decide the case on merit strictly in accordance with law. The parties are left to bear their own costs.
SA/262/Bal. Case remandedThis 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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