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Civil Petition for Special Leave to Appeal No. 65 of 1970, decided on 9th April 1970.
(On appeal from the judgment and order of the High Court of West Pakistan, Lahore, dated the 4th December 1969, in Regular Second Appeal No. 688 of 1962).
O. XXII, rr. 1 & 3‑Death of party pending proceeding‑Legal representatives‑Plaintiff A dying during pendency of appeal filed by him‑Defendant B, in a separate appeal (arising out of same litigation) filed by himself moving application for bringing legal representatives of A on record B, himself having brought legal representatives of A on record fn another proceeding, held, there was no necessity of fresh application by heirs of deceased A to be brought on record in appeal filed by A.
Malik Mohammad Jafar, Advocate Supreme Court instructed by Muhammad Mehdi Anwar, Advocate‑on‑Record for Petitioner.
Nemo for Respondents.
Date of hearing : 9th April 1970.
‑Land measuring 637 kanals, 11 marlas situate in village Chakrala, Tehsil and District Mianwali belonged to one Fateh Khan. On his death in October 1950, it was mutated in favour of his brother, Mehr Khan. Fateh Khan left a son, Nasir Khan, who was excluded from inheritance on Ha the ground that he was not his legitimate issue. On the 15th December 1952, petitioner Haq Nawaz and Nasir Khan brought a joint civil suit for possession of the land left by Fateh Khan was on the allegation that Nasir Khan was a legitimate son and heir of deceased Fateh Khan and he had sold 2/3rd share of the land inherited by him in favour of the present petitioner. The suit was dismissed by the Senior Civil Judge. On the 9th December 1953 but on appeal it was decreed by the learned District Judge by his order dated the 13th August 1954.
After the decision of the above suit, Nasir Khan, on the 29 the March, 1951, filed in the Court of Civil Judge, Mianwali, Suit No. 201 of 1958, against the petitioner for a declaration that the mutation in his favour in respect of 2/3rd share of the land in dispute was based on fraud. The suit was dismissed on the 7th July 1959. On appeal, the judgment was reversed by the District Judge on the 25th May 1950. He held that the transaction was unconscionable and the mutation in favour of the petitioner was illegal. He, however, held that the present petitioner is entitled to be re‑imbursid by Nasir Khan to the extent of the amount incurred by the former in original suit. The learned District Judge sent back the case to the trial Court for a report on the amount of expenses incurred by the petitioner. This judgment was challenged in R. S. A. No. 290 of 1960 in the High Court of West Pakistan, Lahore, which was dismissed on the 29th September 1967, and an application for grant of certificate for appeal to the Supreme Court was also dismissed on the 17th May, 1968.
In compliance with the order of remand passed by the learned District Judge, the Civil Judge, by his order dated the 25th July 1960, made a report that the amount of expenditure incurred by the petitioner was Rs. 216. This report was confirmed by the learned District Judge, on the 3rd July 1962. He passed a final decree in favour of Nasir Khan on condition of depositing a sum of Rs. 216 in the trial Court. This order was also challenged in R. S. A. No. 688 of 1962 which was dismissed by a Division Bench of the West Pakistan High Court, Lahore on the 4th December 1969. The petitioner seeks permission to file an appeal against the said order.
In support of the petition, Malik Mohammad Jafar, learned counsel for the petitioner, has urged two points. In the first place, the learned counsel has contended that Nasir Khan, the original plaintiff in the case and the predecessor‑in‑interest of the present respondents, died on the 18th March 1961, when the appeal filed by the said Nasir Khan was pending before the learned District Judge. No proceeding by any of the heirs of Nasir Khan was taken for having his legal representatives brought on record. In view of this, the appeal has abated and no decree in favour of Nasir Khan or his heirs could legally be passed by the learned District Judge. Secondly, it was contended that no counsel represented the legal representatives of Nasir Khan and, therefore, the appeal filed by him should have been dismissed.
Non of the contention raised by the learned counsel has any force. It will be noticed that the petitioner himself filed an application before the High Court for bringing the legal represen tatives of Nasir Khan on the record in Regular Second Appeal No. 290 of 1960. This prayer was allowed on the 27th of June 1961. In view of this, the High Court was perfectly right in observing that the party brought on the record are to be consi dered to have been properly impleaded for all future stages of the case. This view is in accordance with the view taken by this Court in the case of Mir Ghulam Abbas v. Hashim and others (1969 S C M R 257). Since the petitioner has himself brought the legal representatives of Nasir Khan on record in another proceeding this was quite sufficient for the purposes of the appeal as well and no fresh application to bring the legal representatives of the deceased party on the record of the suit was necessary. The next point that the legal representatives of the deceased were not proper represented by the counsel was not raised before the High Court. In any case, there is nothing before us to show that respondents were not properly represented by a counsel before the appellate Court. There is, therefore, no force in the petition which is dismissed.
Petition dismissed.
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