2009 PLP 1755 (YLR)

MAULVI ANWAR UL HAQ, J.

For the purposes of this judgment, reference to the pleaded facts would not be necessary. Suffice it to say that a suit filed by Mst. Zainab Bibi the mother of the respondents Nos.1 and 2 against the petitioner and the other respondents was contested and dismissed by the learned trial Court on 5-10-2000. Against this judgment and decree a first appeal was filed by the respondents Nos.1 and 2, which was allowed by a learned ADJ, Hafizabad, on 10-7-2002 who remanded the case to the learned trial Court for fresh decision.

2. Learned counsel for the petitioner contends that the impugned order is without jurisdiction inasmuch as the respondent No.8 had not filed any written statement and it was not at all necessary to implead his LRs. Learned counsel for the respondent supports the impugned remand order.

3. I have gone through the copies of the records. The plaint has been examined. I find that primarily a sale effected by means of Mutation No.3285 attested on 4-7-1990 in favour of the petitioner was questioned. The defendant No.8 is Ahmed Khan. It has simply been stated in para-7 of the plaint that the said defendant No.8 has also participated in the conspiracy. As to how he has done it is not stated and the only relief claimed is that the said mutation be declared to be void. The suit was contested only by the petitioner and no other defendant contested the same, the learned ADJ has proceeded to set aside the judgment and decree of the learned trial Court on the sole ground that the evidence in the case had been recorded after the death of the said defendant No.8. The learned ADJ, of course, omitted from consideration the specific provision of Order XXII, Rule 4, C.P.C. which provides that it will not be necessary to implead the L.Rs. of a defendant who has not filed a written statement or the list of his L.Rs.

4. The impugned remand order, therefore, cannot be sustained. The civil revision accordingly is allowed and the impugned remand order dated 10-7-2002 is set aside. The result would be that the first appeal filed by the respondents Nos.1 and 2 shall be deemed to be pending and will be decided on its merits. The contesting parties shall appear before the learned District Judge, Hafizabad, on 16-12-2008. The learned District Judge shall requisition the records and to proceed further himself or entrust the matter to learned ADJ who shall hear the parties and decide the appeal on its merits after examining the records. No orders as to costs.

5. A copy of this judgment be remitted to the learned District Judge, Hafizabad, immediately. H.B.T./M-350/L Order according.