2010 PLP 393 (MLD)

ABDUL AZIZ KUNDI, J.

The present revision petition is directed against the judgment and order, dated 23-8-2006, passed by District Judge/Zilla Qazi, Dir Bala, dismissing the appeal of the petitioners against the judgment, dated 21-4-2004, passed by Senior Civil Judge/Aaala Illaqa Qaiz, Dir Bala, dismissing the objection petition filed by petitioners during the course of execution of a decree, passed in favour of respondents decree-holders on 31-7-1999 and maintained by Additional District Judge/Izafi Zilla Qazi, Dir Bala, vide judgment, dated 21-1-2000.

2. The facts precisely stated are that Nawabzada Shah Salim Khan, predecessor-in-interest of the respondents Mst. Khaista Jana alias Balqeesa Khisro and others filed a suit against Bahader, Abdul Matin Khan and Jumara Ali Malik for declaration and possession in respect of the property detailed in the plaint of the said suit and the said suit after contest was decreed by learned Illaqa Qazi, Dir Bala, vide judgment and decree, dated 31-7-1999. It appears that during the pendency of the said suit Bahader, defendant No.1 died, which fact was brought into the notice of the Court seized of the suit and the said Court on 2-11-1995 directed that the list of legal heirs of deceased Bahader and also Jumara Ali Malik, who had also in the meantime died, be filed within three days. Muhammad Zahir Shah, one of the sons of Bahader appears to have filed a list of legal heirs of his deceased father, which comprised of Muhammad Zahir Shah himself and his five others brothers, namely, Muhammad Nawaz, Shakirullah, Nizamuddin, Miftahuddin and Amir Nawaz. On conclusion, the learned trial Court, as stated above, decreed the suit but strangely enough, in the decree sheet the legal heirs afforested were not shown as defendants/judgment-debtors nor was Bahader defendant No.1 shown as dead. This decree was, however, assailed by the first five legal heirs of deceased Bahadar through Appeal No. 70/14 of 1999, which was, however, dismissed by Additional District Judge/Izafi Zilla Qazi, Dir Bala through his judgment and decree, dated 1-11-2000.

3. The decree-holders started the execution of their decree in their favour on 25-2-2003 and henceforth their actual worries started.

4. Initially, the judgment-debtors i.e. Muhammad Zahir Shah and others, who had contested the suit up to the appellate Court filed objection petition raising objections regarding execution of the decree in respect of twelve shops. This objection petition, dated 20-3-2004 was contested by the decree-holders through their reply, dated 9-4-2004 and thereafter the executing Court vide judgment/order, dated 14-5-2004 dismissed the said objection petition.

5. Mst. Shaheen Bibi and others, the present petitioners, claiming to be the legal heirs of Bahader and owners of the disputed house as a result of having fallen into their share in the legacy of deceased aforestated and having not been impleaded as a party to the suit, thus claimed the judgment and decree to be ineffective upon their rights. This objection petition, dated 7-12-2004 was also contested by the decree-holders through their reply, dated 13-12-2004 and thereafter the Executing Court vide judgment/order, dated 21-5-2005 dismissed the objection petition, wherefrom they preferred Appeal bearing No.6/14 of 2005, which was also dismissed by District Judge/Zilla Qazi, Dir Bala on 23-8-2006. Hence, this revision petition.

6. Mr. Abdul Sattar Khan, Advocate learned counsel for the petitioners vehemently contended that petitioners are the legal heirs of deceased Bahader and thus have a legal right to have been impleaded as defendants in the suit on the sad demise of their predecessor but the male heirs Muhammad Zahir Shah etc. intentionally omitted them from the list of legal heirs; that the property in question has devolved upon the petitioners and they are in its possession; that provisions of Order XXII, Rule 4 Sub-Rule (3), C.P.C. would not apply to the case of the petitioners, as it is not a case where no list of legal heirs was filed but in fact a list was filed and some of the legal heirs were left out to be brought on the record. He further contended that non-compliance with the only other provision governing the subject i.e. Order VIII, Rule 13, C.P.C. has no penal consequences, therefore the same cannot hit present petitioners. It was thus argued that petitioners who are in possession of the house in dispute as its owners have not been given a chance to prove their stance; that decree has been .passed against a dead person as is apparent from the decree drawn by trial Court. The impugned judgments were accordingly termed to be against the settled law governing the administration of justice in civil matters.

7. Mr. Jan Muhammad Khan, Advocate learned counsel for the decree-holders respondents contended that the original suit had been filed way back in 1985 initially before PATA Courts and later on, on the abolition of PATA Courts transferred to regular civil Court and after a long period of 14/15 years, a decree was passed in favour of the decree-holder Nawabzada Shah Salim Khan, who was then alive and now succeeded by respondents; that the real son/brother of the petitioners had filed the list of legal heirs of the deceased Bahader and the petitioners claiming to be living in the same house had never raised any objection during the pendency of the suit and even after the filing of the Execution Petition; that initially the male legal heirs tried to obstruct the execution petition by filing an objection petition and it was only on the dismissal of the same that the petitioners came forward with this collusive objection petition; that under Order XXII, Rule 4 sub-rule (3) if legal heirs are not brought on the record by moving an application, then the Court may proceed with the suit and any order made or judgment pronounced in such suit shall notwithstanding the death of such defendant, have the same force and effect as if it had been pronounced before the death took place. It was further contended that the case of the petitioners is fully covered by sub-rule (3) of Rule 4 of Order XXII, aforesaid because there is no other provision of law which deals with such a situation. Learned counsel for the decree-holder respondents while referring to the original judgment and decree, dated 31-7-1999, particularly the joint findings of the trial Court on issues 1, 2 and 3, further argued that except for delaying the execution proceedings no useful purpose could be achieved by sending the matter back to the Executing Court for recording evidence vis-a-vis the claim of the petitioners/objectors. He placed emphasies on following portion of the finding of the trial Court:- He placed reliance on a DB judgment of this Court reported as 1985 CLC 471, where it was held as under:-- "Order XXII, R.4(4), O.VIII, R.13 (as amended by Law Reforms Ordinance (XII of 1972), section 6(ix)(a)(i))

List of legal representatives filing of

Defendant, under obligation to file along with his written statement list of his legal representatives and to nominate a person to intimate Court fact of death of defendant and to furnish Court with necessary particulars and addresses of legal representatives of defendant and also to make an application for their substitution under O.VIII, R.13, C.P.C. non-compliance would authorize Court to proceed with suit notwithstanding death of such defendant

Failure of plaintiff/petitioner to file a list of legal representatives of deceased defendant, held, could not result in abatement and dismissal." He also placed reliance on 1980 CLC 1794 and contended that though a set of the legal heirs of the deceased Bahader contested the suit on merits but all his legal heirs are bound by the said decree. In the cited case, it was held as under:-- "(a) Section 47 read with O.XXI, R.58 and Muhammadan Law, rule of inheritance

Discharge of debts of deceased out of deceased's estate before distributing same among themselves

Religious duty of legal heirs of Muslim deceased

Court of law to lean towards enforcement of such religious duty

Estate of Muslim deceased represented by one or more legal heirs, decree passed in any such suit, held, cannot be defeated- on ground of non-joinder of some other legal heirs, particularly in event of such other legal heirs having knowledge of pendency of suit (Muhammadan Law)."

8. I have heard the learned counsel for the parties at sufficient length and gone through the record of the case made available with this revision petition.

9. Though the learned counsel for the petitioners did his best to take his case out of the ambit of Order XXII, Rule 4 sub-rule (3), C.P.C. by arguing that this sub-rule would be attracted when no list of legal heirs is at, all filed and that the only other enabling provision of Order VIII, Rule 13, C.P.C. has no penal consequences for its non-compliance.

10. For the sake of' ready reference Order XXII, Rule 4, C.P.C. with its sub rules is reproduced hereunder:-- "Procedure in case of death of one of several defendants or of sole defendant...(1) Where one of two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants alone (or on receipt of intimation of the death of such defendant from the person nominated by him for that purpose under Rule 13, Order VIII) or a sole defendant or sole surviving defendant dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit. (2) Any person so made at party may make any defence appropriate to his character as legal representative of the deceased defendant. [(3) When within the time limited by law no application is made or intimation is given under sub-rule (1), the Court may proceed with the suit, and any order made or judgment pronounced in such suit shall, notwithstanding the death of such defendant, have the same force and effect as if it had been pronounced before the death took place.] [(4) It shall not be necessary to substitute the legal representatives of any such defendant who has failed to file a written. statement or has failed to appear and contested the suit at the hearing; and judgment may in such case be pronounced against the said defendant notwithstanding his death, and such judgment shall have the same force and effect as if it had been pronounced before his death took place.]

11. A bare reading of the above rule particularly its sub-rule (3) would show that when no application is made or intimation given under sub-rule(1), the Court may proceed with the suit and any order made or judgment pronounced. in such suit shall, notwithstanding the death of such defendant have the same force and effect as if it had been pronounced before the death took place.

12. The case of the petitioners cannot be taken out of the ambit of aforesaid sub-rule. When the law gives full force to a decree passed in the event of the absence of the legal heirs of a deceased defendant, then it can be safely said that in the case of the present nature, where a set of legal heirs contested the matter but another alleged set left out of the contest and that too by their own co-heirs and none else, decrees passed in such a situation would also be fully protected and have the same force and effect as provided in sub-rule (3) ibid.

13. The objectors who claim inheritance from the common ancestor with the judgment-debtors Zahir Shah and others have in their objection petition levelled no allegation of fraud, or misrepresentation etc. against the said Zahir Shah etc.; and they have also not claimed any clash of interest with the said judgment-debtors and thus would be bound by the judgment and decree passed in favour of the respondents.

14. In a somewhat similar situation though pertaining to ejectment proceedings, the Hon'ble apex Court had in a judgment reported as 1982 SCMR 90 disapproved of filing of such objection petition by the members of the same family. The petitioners who claim to be members of the family of the judgment-debtors living in the same house under one roof, having no conflicting interest had purposely abstained themselves from appearance during the trial of the suit in order to have a chance of filing objection petition and thus delay the execution proceedings and in fact through the present objection petition filed on 7-12-2004, they have been able to delay the execution proceedings for long five years.

15. Even otherwise the remand would serve no purpose because during the trial of the main suit which was duly contested by Zahir Shah etc., the learned trial Court had held the decree holders to be the owners of the disputed house, which portion of the judgment has been reproduced in the earlier part of this judgment. Having found no illegality or irregularity in the impugned judgments, the same are maintained and the Revision Petition is dismissed with costs throughout. The Executing Court is directed to finalize the execution proceedings without any further loss of time. H.B.T./212/P Petition dismissed.