P L D 2004 Supreme Court (AJ&K) 45 (PLP)

KHAWAJA MUHAMMAD SAEED, J.‑‑‑This appeal, with leave of the Court, is directed against the judgment and decree of the High Court dated 3‑4‑2003.

2. Relevant facts, briefly stated, arc that the appellants, herein, brought, a suit in the Court of Senior Civil Judge Kotli on 13‑11‑2001, seeking declaration that they have obtained a portion of land through oral sale from Mst. Zahoor Begum for Rs.90,

000. As the land was mortgaged by her husband with the House Building Finance Corporation, therefore, it was promised with them that after getting it redeemed from the said Corporation, the land purchased by them through oral sale shall be transferred to them through the modes recognized by law. They admitted that Ahmed Din and Muhammad Sadiq who were arrayed as defendants with Mst. Zahoor Begum, are legal descendants of the husband of Mst. Zahoor Begum, therefore, they sought a declaratory decree from the trial Court that they be declared owner in possession of the land ands all the entries in the Revenue Record in favour of the aforementioned defendants be declared illegal and inoperative against the true facts, as such liable to be cancelled. They also sought a direction that the entries be recorded in their favour in the revenue papers. Mst. Zahoor Begum out of three defendants, admitted the claim of the appellants, herein whereas on the request of the said appellants, the service upon defendants Nos.2 and 3, namely Ahmed Din and Muhammad Sadiq, was effected through proclamation. Both these defendants failed to appear in the Court on the date fixed in the proclamation, as such, were proceeded against ex paste. Finally after 15 days on 28‑11‑2001, an ex parte decree was passed in favour of the present appellants.

3. Muhammad Sadiq and legal descendants of Ahmed Din, deceased, filed an application under Order IX, Rule 13 of the C.P.C. for setting aside the ex parte decree. In para. 2 of the application it was specifically stated by them that Ahmed Din was permanently residing in; Lahore and died there which fact was in the knowledge of the appellants, I herein, but the said appellants concealed the true facts in order to obtain, the ex parte decree. The trial Court invited objections from the appellants, herein, which were accordingly filed by them before it. Initially the issues were framed, however, after hearing the arguments the trial Court did not feel it proper to record evidence of the parties in the circumstances of the case, therefore, recalled the ex parte decree vide judgment and decree dated 17‑5‑2002. The present appellants, assailed this order by way of an appeal before the District Judge on 28‑5‑2002, who by accepting their appeal vide his judgment and decree dated 23‑8‑2002, remanded the case to the trial Court for fresh decision after taking evidence of the parties on the issues framed in the case. The respondents, herein, filed an appeal before the High Court against the said order of the District Judge. Their appeal was allowed by the High Court and the remand order passed by the District Judge Kotli was set aside vide judgment under challenge dated 3‑4‑2003. Hence this appeal with leave of the Court.

4. Mr Muhammad Yunus Tahir, the learned counsel for the appellants, argued that the trial Court framed the issues in the light of the contents of application moved by the respondents for setting aside ex parte decree against them and objections filed by his clients before it. It was, therefore enjoined upon the trial Court to provide the parties opportunities to lead their evidence for and against the claims set up by them in their respective pleadings but the trial Court did not follow the procedure provided in the Code of Civil Procedure for the trial of civil disputes. The learned District Judge, therefore, was justified in law to set aside the order recorded by the trial Court for setting aside the ex parte decree passed in colourable exercise of jurisdiction and remanded the case for fresh decision after providing the parties chance to lead their evidence in support of their respective claims. The reliance was placed upon a case titled Mirza Sadiq Hussain v. Ch. Shahab‑ud‑Din etc. (1989 ALD 263(1)), whereby an application moved by the defendants for setting aside the ex parte decree was dismissed without framing the issues and providing them opportunity to produce the evidence. in support of their claims listed by them in their application for setting, aside ex parte decree. In the circumstance of the above referred case the jurisdiction exercised by the trial Court was held faulty attracting the interference by the High Court in exercise of its revisional jurisdiction. This authority has distinguished features and had nothing common with the facts of the present case.

5. On the other hand, Ch. Muhammad Sharif Tariq, the learned counsel for the respondents, argued that in para. 2 of the plaint the present appellants had admitted that Ahmed Din had died and that they were not aware of his legal descendants. They, therefore, requested that Ahmed Din and Muhammad Sadiq, who were arrayed as defendants Nos.2 and 3, be summoned through proclamation. On their request the proclamation was published requiring a dead person to appear before the Court on the date fixed in the proclamation. When in response to the proclamation Ahmed Din and Muhammad Sadiq failed to appear in the Court, they were proceeded against ex parte and an ex parte decree was finally passed against them. According to the learned counsel when it was admitted by the appellants in para. 2 of their plaint that defendant No.2, Ahmed Din, was not alive the suit was not maintainable against a dead person. He further argued that there was no occasion for the trial Court to issue proclamation against a dead person. So this was an admitted fact which need not be proved by any evidence. The learned Judge in the High Court in light of the admitted facts was justified in law to hold that the suit against a dead person was nullity in the eye of law, therefore, ex parte decree passed in such circumstances was rightly recalled by the trial Court in exercise of its inherent powers.

6. We have considered the respective arguments of the learned counsel for the parties in the light of the relevant record of the case. In the suit which was filed on 13‑11‑2001 by the present appellants they impleaded in the line of defendants Mst. Zahoor Begum, Ahmed Din and Muhammad Sadiq. All the three were shown as the principal defendants C and a common declaratory decree was craved for against all the three defendants. In para. 2 of the plaint, the plaintiff‑appellants had admitted that defendant No.2, Ahmed Din, was not alive but, according to them, they were not knowing his legal descendants. They, therefore, requested that he alongwith defendant. No. 3 Muhammad Sadiq, be summoned through proclamation. Para 2 of the plaint being relevant is reproduced below:‑‑

7. The trial Court allowed their request and fixed the case for the appearance of respondents on 26‑11‑2001 through proclamation. On this date the Court recorded the evidence of the plaintiff‑appellants and the counsel for defendant No.1, Mst. Zahoor Begum, admitted the claim of the plaintiff‑appellants. The case was fixed for appropriate orders on 28‑11‑2001, when decree was recorded against Mst. Zahoor Begum on account of her admission of the case of the plaintiff‑appellants and ex parte decree was recorded against the rest of two defendants. The suit was decreed in favour of the appellants within 15 days by the trial Court. Thereafter an application was moved by Muhammad Sadiq and legal descendants of Ahmed Din, who were eight in number, before the Senior Civil Judge Kotli on 13‑12‑2001, seeking cancellation of ex parte decree. In para. 2 of the application it was specifically mentioned by them that suit was filed against a dead person and decision was obtained in haste which amounted to justice rushed is justice crushed. It was further mentioned by them that the suit between Mst. Zahoor Begum and other defendants was also pending in the Court in which the next date of hearing was fixed as 9‑1‑2002 and the Court has also regulated the possession of the land by issuing interim injunction in that suit. In para. 2 of their objections filed by the present appellants they admitted that Ahmed Din was residing at Lahore permanently where he died. But, according to them, they were not aware of his death, as such, his legal descendants were not made party in the plaint. The relevant para. of their objections reads as follows:‑‑

8. The aforementioned stand is directly in conflict with the claim as pleaded by them in para. 2 of the plaint. Because in their plaint both the appellants had admitted the death of Ahmed Din at the time of filing of their suit before the trial Court. However, they had mentioned that they were not aware of his legal descendants. They, therefore, requested that he alongwith Muhammad Sadiq, the contesting respondent No. 1, herein, be summoned through proclamation. The Court allowed this request and summoned dead person Ahmed Din, and Muhammad Sadiq who was shown in the plaint resident of Trarkhal through proclamation. As we all know the substitute service through proclamation is the last resort which is to be adopted in a case where defendants cannot be served through other means provided in the Code of Civil Procedure. Muhammad Sadiq was shown the resident of Trarkhal a little beautiful town of the liberate part of the State. He should have been summoned through ordinary means provided in the Code of Civil Procedure but he was also summoned through proclamation which was illegal exercise of jurisdiction on the part of the trial Court. Ahmed Din, the other defendant, since dead was also summoned through proclamation, therefore, the decree obtained against a dead person was nullity in the eye of law. In a case titled Elisa and others v. A. Doss (AIR 1992 Madras 159), a decree was obtained against a dead person without complying with Order XXII, rule 4(4) of Civil Procedure Code. Later on in execution proceedings it was proved that the decree was obtained against a dead person without impleading his legal representatives as defendants. It was held that decree obtained against a dead person was nullity and as his legal representatives were not brought on record as answering defendants, therefore, such decree was not executable against them. In another case titled Ainuddin Bepari and others v. Banessa Bibi and another (PLD 1969 Dacca 658), the defendant was alive when the suit was filed. During the pendency of the suit the defendant died but the plaintiff failed to comply with Order XXII, Rule 4(4) of C.P.C. Ultimately at the end of the trial the decree was passed in favour of the plaintiff. When it was presented for execution before the trial Court the legal descendants of the deceased defendant raised an objection and claimed that the decree was nullity in the eye of law as it was obtained against a dead person. The objection was sustained by the trial Court and ex parte decree obtained by the plaintiff‑appellants was recalled. The order of the trial Court was challenged before the High Court on the ground that while executing decree the trial Court was not justified in law to determine whether the decree was nullity in the eye of law as it was obtained against a dead defendant. The High Court held that the decree obtained against a dead person was a nullity in law, therefore, the executing Court was justified in refusing to execute such decree. In Mst. Sardar Begum and others v. Mst. Chiragh Bibi and another (1989 CLC 825), it was laid down that if defendant dies during the pendency of the suit and no application is moved within the period of limitation for bringing on record his legal representatives, the decree obtained against such defendant shall be treated as void and of no legal effect. In a case titled Muhammad Ibrahim v. Custodian Evacuee Property and 10 others (1999 YLR 2336), a dead person was impleaded as respondent. An application was moved for bringing on record his legal descendants. It came in the knowledge of the Court that the said respondent was dead at the time when the petition was filed in the Court. The application was rejected on the ground that the appellants and respondents are such persons who must be alive and on the death of any one of them the application for substitution of his legal representative must be moved within the period of limitation. That shall give a continuity to the original proceedings but if a dead person is impleaded as a respondent then his legal representatives cannot be allowed to be brought on record as that shall amount to add new party and not to substitute a new one as respondent against the original respondent on account of his death. The application moved was held not maintainable and the appeal was also dismissed on this ground.

9. From the survey of the reports of the aforementioned authorities it is clear that under the Code of Civil Procedure no suit can be filed on behalf of a dead person or against a dead person. Moreover the substitute service through proclamation is the last resort which can be adopted in the light of the reports submitted by process server while effecting service upon the defendants. In this case the plaintiff‑appellants had admitted the death of Ahmed Din in their plaint but still they impleaded him as defendant No.2, therefore, the decree obtained against this defendant was nullity in the eye of law. The notice issued to Muhammad Sadiq, the other defendant, was not received back after due service when on the request made in the plaint he was also summoned through proclamation and just within 15 days, a decree was allowed in favour of the appellants, herein. The whole procedure adopted by the trial Court, which culminated in the ex parte decree in favour of the appellants, herein, was bad in law. The new Presiding Officer of the trial Court was, therefore, justified to law in setting aside such decree which was rightly maintained by the learned Judge in the High Court through judgment under challenge in the present appeal. In view of above, finding no force in this appeal, the same stands dismissed with no order as to costs. H.B.T./16/SC(AJK) Appeal dismissed.