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Civil Revision No. 110 of 1956, decided on 19th June 1956, against the order of the Senior Sub‑Judge, Peshawar, dated 17th February 1956.

, O. XXII, r. 3--- Legal representative of a deceased plaintiff cannot be made party as defendant against his will.

Ordinarily, when a plaintiff in a case dies all his or her legal representatives should be brought upon the record as plaintiffs. The word "party" seems to have been used .in O. XXII rule 3, Civil P. C., because there is always a possibility that some of the legal representatives of the deceased‑plaintiff may not like to be brought upon the record as plaintiffs, and if that eventuality arises, the Court will have the jurisdiction to implead them as defendants in the case. Where, however, the legal representatives of the deceased plaintiff are not only willing but insistent that they should be made plaintiffs in the case, the Court has no other alternative but to make them plaintiffs even if it is against the wishes of the plaintiff already upon the record.

, O. XXIII, r. 1 ----One of several plaintiffs cannot withdraw without concurrence of others.

One of the plaintiffs cannot withdraw the case without the concurrence and consent of the other plaintiffs.

Muhammad Yunas Shah for Petitioner.

Abdul Wahid for Respondent No. 1.

Respondent No. 3 in person.

.‑Mr. Peer Bakhsh Khan M. A., LL. B., an Advocate of this Court, purchased certain property from Ayub Khan, Hussain Khan and Mst. Malko, by three separate deeds dated 15th July 1953, 19th July 1954, and 18th September 1954, respectively. Three suits for possession by pre‑emption with respect to the above property were brought against Mr. Peer Bakhsh Khan, and the vendors, by two sisters Mst. Tajwar Sultan and Mst. Chano Bibi. During the pendency of the suits Mst. Chano Bibi died. Mst. Tajwar Sultan made an application that the legal representatives of her deceased sister i.e., herself and the deceased's husband Muhammad Yunas be brought upon the record under O. XXII, rule 3, Civil P. C. She, however, prayed that instead of making Muhammad Yunas as her co‑plaintiff, he should be made a defendant in the case, because he was on inimical terms with her and was colluding with Mr. Peer Bakhsh Khan, the vendee.

The learned Senior Sub‑Judge Peshawar, who is trying the three cases, upheld Mst. Tajwar Sultan's contention, but added "I would like to make it clear that this Court will feel free to give such relief to Muhammad Yunas in the matter of the property in question to which he may be entitled as an heir of Mst. Chano Bibi".

Aggrieved by this order Muhammad Yunas has put in three revision petitions in this Court, and since common questions of law and fact are involved in all the three cases, they will be disposed of by this one single order.

Under O. XXII, rule 3 when one of the two plaintiffs dies and the right to sue does not survive to the surviving plaintiff, then the Court on an application made in that behalf, shall cause the legal representative of the deceased‑plaintiff to be made a party. Ordinarily, when a plaintiff in a case dies all his or her legal representatives should be brought upon the record as plaintiffs. The word "party" seems to have been used in O. XXII, rule 3, Civil P. C., because there is always a possibility that some of the legal representatives of the deceased‑plaintiff may not like to be brought upon the record as plaintiffs, and if that eventuality arises, the Court will have the jurisdiction to implead them as defendants in the case. Where, however, the legal representatives of the deceased plaintiff are not only willing but insistent that they should be made plaintiffs in the case, I think the Court has no other alternative but to make them plaintiffs, even if it is against the wishes of the plaintiff already upon the record. The ends of substantial justice also require that the legal representative of a plaintiff should ordinarily be made a plaintiff in the case, because otherwise there is a likelihood of the person already a plaintiff in the case to act in a manner, which might prejudicially affect the case of such legal repre sentative. Such plaintiff may absent himself, and thus suffer the case to be dismissed in default, or he may enter into a compromise with the contesting defendant, or withdraw the suit under O. XXIII, rule 1, Civil P. C. In such an eventuality the legal representatives of the deceased‑plaintiff, who is defendant in the case, is left with no remedy whatsoever. Apart from that, a plaintiff has got certain privileges under the Civil P. C., one of them being to produce evidence in rebuttal of the defendant's case. If a person, who is in fact a plaintiff, is made a defendant in the case, he loses all those privileges. On the other hand I really do not see what harm can it cause to the plaintiff already upon the record, if all the legal representatives of the deceased -plaintiff are impleaded as plaintiffs in the case, even though some of them are not well‑disposed towards him. He cannot suffer the case to be dismissed in default, nor can he withdraw the case, because according to the well‑settled law one of the plaintiffs cannot withdraw the case without the concurrence and consent of the other plaintiffs.

I am consequently of the opinion that Muhammad Yunas as a matter of right was entitled to be brought upon the record as a plaintiff in the case, and the learned trial Court was wrong in impleading him as a defendant. The revision petitions are thus accepted, and Muhammad Yunas is ordered to be impleaded as a plaintiff in the case, which will then be proceeded with in accordance with law. The petitioner shall have his costs from Mst. Tajwar Sultan in all these three petitions. Pleader's fee Rs. 30 in each case.

A. H.

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