2005 PLP 281 (CLD)

CH. IJAZ AHMAD, ACTG. C.J.‑‑‑The brief facts out of which the present appeal arises are that respondents Nos.2 and 3 and predecessor‑in‑interest of the appellants secured loan from respondent‑Bank under credit scheme for their partnership firm namely Zahoor Brothers. The respondent‑Bank sanctioned the loan in favour of the predecessor‑in‑interest of the appellants and respondents Nos.2 and 3 after securing mortgage deeds from them as is evident from para.4 of the plaint. The predecessor‑in -interest of the appellants and respondents Nos.2 and 3 failed to discharge their liabilities in terms of the agreement executed between the parties. The respondent Bank filed a suit for recovery of Rs.39,63,117 before the Banking Court, Gujranwala on 25‑7‑1993. The predecessor‑in‑interest of the appellants and respondents Nos.2 and 3 filed joint application for leave to defend the suit before the Banking Court on 31-3‑1994. During the pendency of the suit predecessor‑in‑interest of the appellants died on 14‑10‑1994. The Banking Court decreed the suit against respondents Nos.2 and 3 and, predecessor- in‑interest of the appellants vide judgment and decree dated 14‑6‑1999. The respondent‑Bank filed execution petition before the Banking Court wherein the respondent Bank has impleaded the appellants as defendants being legal heirs of Manzoor Alam on 28‑10‑1999. The appellants filed an application for setting aside the decree before the Banking Court on 11‑7‑2000 which was dismissed by the Banking Court on 28‑7‑2002. The appellants being aggrieved filed this appeal.

2. Learned counsel for the appellants submits that impugned order of the Banking Court is in violation of the mandatory provisions of Order XXII, rule 4(1)(3) read with Order XXII, rule 4(4), C.P.C. He further submits that Order XXII be read as a whole including rule 9(2) of the same. He further urges that it is the duty and obligation of the respondent‑Bank to bring on record legal heirs of Manzoor Alam which was in the knowledge of the respondent‑Bank as the respondent‑Bank filed another suit against respondents Nos.2 and 3 and present appellants before the Banking Court which was also decreed vide judgment and decree dated 3‑3‑1996 whereas present suit was decreed by the Banking Court vide judgment and decree dated 14‑6‑1999. He further urges that respondent‑Bank cannot take benefit of its own negligence. He further submits that impugned order is not in consonance with the law laid down by the superior Courts. In support of his contention he relied upon Hafiz Brothers v. PICIC (2001 SCMR 1).

3. Learned counsel of the respondent‑Bank submits that predecessor‑in‑interest of the appellants and respondents Nos.2 and 3 are real brothers who had secured loan from the respondent‑Bank jointly. They jointly filed application for leave to defend wherein the claim of the respondent‑Bank was accepted by them as is evident from the prayer clause of the application for leave to defend the suit. Therefore appellants filed application for setting aside the judgment and decree dated 14‑6‑1999 mala fide and the Banking Court was justified to dismiss the same which is in accordance with law laid down by the superior Courts. In support of his contention he relied upon Sohaj Khan v. The Registrar (1988 CLC 973). He further urges that period for filing an application to bring on record legal heirs is prescribed as 90 days in view of Article 177 of the Limitation Act. The appellants did not file application within the prescribed period. Therefore, application was rightly dismissed by the Banking Court. He further submits that predecessor‑in‑interest of the appellants has died during the pendency of the suit. Therefore, suit cannot be abated under Order XXII, rule 4, C.P.C. In support of his contention he relied upon the following judgments:‑‑ Bibi Khudeja v. Pir Sarwaruddin Shah (1992 MLD 490), Allah Wasaya v. Irshad Ahmad (1992 SCMR 2184).

4. Learned counsel of the appellants in rebuttal submits that it is the duty and obligation of the respondent‑Bank/plaintiff to file an application to bring on record legal heirs of predecessor‑in‑interest of the appellants in view of Order XXII, rule 9(2), C.P.C. as per the law laid down by the Honourable Supreme Court in Syed Ghias Haider v. Mst. Allah Rakhi (1986 SCMR 853).

5. We have given our anxious consideration to the contentions of the learned counsel of the parties and perused the record.

6. It is admitted fact that predecessor‑in‑interest of the appellants and respondents Nos.2 and 3 are real brothers. It is also admitted fact that predecessor‑in‑interest of the appellants and respondents Nos.2 and 3 had filed joint application for leave to defend. It is better and appropriate to reproduce operative part of the prayer clause to resolve the controversy between the parties:‑‑ "Under the circumstances, it is most respectfully prayed that leave to appear and defend may please be granted. In the alternative, if the contentions raised hereinabove, do not find favour by this august Court, facility of repayment through easy installments after waiver of compound interest and future interest may please be allowed." Mere reading of the aforesaid prayer clause clearly reveals that predecessor‑in‑interest of the appellants and respondents Nos.2 and 3 had admitted the claim of the respondent‑Bank. It is also admitted fact that it was in the knowledge of respondents Nos.2 and 3 qua the death of predecessor‑in‑interest of the appellants. Therefore, it is the duty and obligation of respondents Nos.2 and 3 to intimate the Banking Court. Coupled with the fact that predecessor‑in‑interest of the appellants and respondents Nos.2 and 3 failed to submit list of legal representatives along with the application for leave to defend which is their statutory duty under Order VIII, rule 13, C.P.C. In case the aforesaid facts are' put in a juxta‑position then it brings the case in the area that the appellants have not filed the application within the prescribed period and it is not believable that it was not in the knowledge of the appellants qua the pendency of the suit in question as their real uncles/ respondents Nos. 2 and 3 were party in the suit. They have also not challenged the impugned decree dated 14‑6‑1999 before this Court. The judgment relied by the learned counsel of the appellants is distinguished on facts and law as in the cited judgment, the suit was filed against the dead person whereas in the present case the suit was not filed against the dead persons. The application for leave to defend the suit has also been filed by the predecessor‑in‑interest of the appellants along with respondents Nos.2 and

3. It is settled principle of law that each and every case is to be decided on its own peculiar circumstances and facts as the law laid down by the Honourable Supreme Court in Trustee of the Port of Karachi v. Muhammad Saleem (1994 SCMR 2213).

7. In view of the above, we do not find any infirmity or illegality in the impugned order of the Banking Court A which is in accordance with the provisions of law. It is settled principle of law that failure to bring on record legal heirs of a dead party in a pending proceeding is not fatal to such proceedings. In arriving to this conclusion I am fortified by the law laid down in Gul Muhammad Khan's I case (1998 MLD 2110), Sultan Ahmad's case (NLR' 1999 Appeal Cases 748) and Muhammad Yaqub's case (1994 MLD 1843). The question of law has already been settled by this Court in Abdul Ghafoor's case (2001 MLD 1797). The relevant observation is as follows:‑‑ "It was a common interest of Muhammad Yar and Abdul Ghafoor and Abdul Ghafoor had contested the revision petition so no prejudice was caused to Abdul Ghafoor and other L.Rs. of the deceased by passing of the impugned order by respondent No.l. Order XXII, rule 3, C.P.C. has already been amended by the'Law Reforms Ordinance, 1972 and if any of the petitioners, dies it will not abate the revision petition and the order can be passed even without impleading the L.Rs. of the deceased/ Muhammad Yar, as held in the case of Muhammad Sadiq noted (supra). As to this argument of the learned counsel for the petitioner is concerned, it is suffice to hold that no prejudice has been caused to the petitioner, hence this argument is devoid of force and is not sustainable in law." It is pertinent to mention here that in the present case as mentioned above there is no clash of interest between respondents Nos.2 and 3 and predecessor‑in‑interest of the appellants. Therefore, no prejudice has been caused to the appellants which is in accordance with the law laid down by the Division Bench of the Karachi High Court in Khudeja Bibi's case (1990 MLD 490). In view of what has been discussed, this appeal has no merit and the same is dismissed. M.B.A./M‑787/L Appeal dismissed