2008 PLP 55 (CLC)

NADEEM AZHAR SIDDIQI, J.

By this application the plaintiff has prayed that legal heirs of deceased defendant No.2 may be brought on record. In support of the application the learned counsel has filed his own affidavit which is silent with regard to the reasons for impleading the legal heirs of deceased defendant No.2. No counter-affidavit has been filed on behalf of defendant No.1. On 3-5-2007 the learned counsel for the plaintiff was directed to satisfy the court whether after expiry of defendant No.2 his legal heirs can be brought on record. The learned counsel for the plaintiff submits that since the right to sue is surviving the legal heirs can be brought on record and the suit cannot be abated. He further submits that since the deceased defendant has not filed the written-statement the judgment can be pronounced against him without impleading his legal heirs. He relied upon the following reported cases:

(1) Mrs. Itrat Zahida and others v. President A.B.L. and others 2006 SCMR 1287, (2) Mg. Salma Bibi v. Muhammad Nawaz and others 2000 SCMR 1051, (3) Rahim Tahir v. Ahmed Jan and others PLD 2007 SC

423. The suit was filed against the defendants for recovery of damages amounting to Rs.100 million on account of illegal lease of Plots Nos.B-22, 8A/L, 8A measuring 400 Sq. yards in Scheme No.33, Gulzar- e-Hijri, Karachi, in favour of defendant No.2 by defendant No.1. The plaintiff has filed an application under section 54 of the Cooperative Societies Act which was allowed and inspite of undertaking of defendant No.2 before the Senior Civil Judge, Malir, the possession was not handed over to him. After service of notice no written statement has been filed by deceased defendant No.2. The cause of action as explained in the plaint is of illegal lease of plot in favour of defendant No.2 and non-handing over the physical possession of the plot to the plaintiff. Order XXII, rule 4, C.P.C. deals with the effect: of death of a sole defendant or one or two or more defendants during pendency of the suit and where the right to sue survives against the legal-heirs they can be brought on record. The suit was filed for damages under tort on account of suffering by the plaintiff caused to him, due to illegal lease of plot to defendant No.2. It is now well established principle that personal action dies with the person and effect is that the death extinguishes the liability in tort. The learned counsel for the plaintiff fails to demonstrate that the cause of action is survived against the legal heirs of the deceased. In the case of Government of Punjab and another v. Mst. Kamiana and others 1990 CLC 404 a learned Division Bench of this Court while interpreting maxim "Actio personalis mortum cum persona has held as under:

"From the above discussion, it is clear that the meaning of this maxim is that a personal action dies with the person, the effect is that the death extinguishes the liability in tort. In other words the death of the party wronged or the wrongdoer brings an end to the cause to action and the right to sue or be sued for gets extinguished. But this is subject to a qualification viz. where a tortfeasor's estate is benefited by the wrong-done, an action would be against the representatives of a wrongdoer. The essence of the maxim applies to an action brought for damages for a personal wrong." In the reported case of Mercantile Cooperative Bank Ltd. v. Messrs Habib & Co. and others PLD 1967 Kar. 755 it was held that the claim was for unqualified 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. In this case also the claim is purely based upon the illegal lease of plot in favour of defendant No.2 which was restored to the plaintiff in the arbitration proceedings under the Cooperative Societies Act, The learned counsel has failed to show that the estate of the deceased was benefited with the illegal lease. The judgments cited by the learned counsel have distinguishable facts and are not applicable to the present suit. The first reported case relates to inheritance of pensionary benefits. The second case relates to non-filing of written statement by the deceased defendant and pronouncement of judgment after his death. The last case related to Illegal Dispossession Act, 2005. The plaintiff cannot maintain the suit for damages against the legal heirs of the deceased defendant No.2 as the death of defendant No.2 extinguished the liability in tort and brings an end to, the cause of c action. In view of the discussion the application is dismissed. The suit against defendant No.2 stands abated. The parties to bear their own costs. M.H./S-81/K Application dismissed.