2016 PLP 848 (YLR)

MUHAMMAD ALAM, J.

Order dated 05-06-2014 passed by the learned first appellate court Skardu, whereby, the learned first appellate court rejected the petition dated nill of the petitioners that petitioners had filed during pendency of appeal (CFA No.62/2014). Through the said petition under Order I Rule 10(2), C.P.C., petitioners sought to be impleaded in the plaint of Civil Suit No.73/2010.

2. Mst. Bilqees, respondent/plaintiff No.3, filed a civil suit in the trial court of Civil Judge No.II Skardu, who, through his decree/judgment dated 28-06-2012, decreed the suit against respondents Nos.1 and 2/ defendants No.1 and

2. Feeling aggrieved from the same, respondents Nos.1 and 2 filed appeal (CFA No.62/2014) and during pendency of the appeal, petitioners moved a petition under Order I Rule 10(2), C.P.C., seeking impleading of them as defendants in the plaint of the suit. Learned first appellate court dismissed the said petition through impugned order which goes as under:-- 18. 05-06-2014 Through the instant application the applicants Mst. Roqia and Mst. Jano daughters of Ali want to be impleaded in the case as defendants to defend their right of inheritance. Perusal of record shows that plaintiff Mst. Bilqees mother of deceased Ejaz Hussain has claimed her share from the legacy of her deceased son. Record shows that present suit is between mother of Ejaz Hussain who died issueless. In this controversy the present petitioners are not directly involved. Perusal of Mutation No.1343 dated 11.3.93 it appears that mutation was attested in the name of three sons of Ali excluding the daughters. Petitioners are the daughters of said Ali and in their said capacity they can claim their due share from the legacy of their father deceased Ali. In the present controversy they are neither necessary nor proper party. This petition is dismissed leaving the applicants Mst. Raqia and Mst. Jano at liberty to claim their share from the legacy their father if they so desire. Sd/xxx District Judge Skardu

3. I have heard learned counsel for parties at length and have gone through the file. The case in hand has peculiar circumstances in the sense that petitioners have filed the petition on the ground of their close relationship with rest of the parties of the case. It is not disputed that respondent No.3, who is plaintiff of the suit, has filed the suit for her share in the property of Mr. Ejaz Hussain. It was further admitted at bar that, at the time of death of said Mr. Ejaz Hussain, his property was not partitioned from the properties of Mr. Baqir and Mr. Mohammad, real brothers of Mr. Mehdi, and Mr. Mehdi is father of Mr. Ejaz Hussain. Mst. Bilqees, plaintiff of the suit, is mother of said Mr. Ejaz Hussain and has filed the suit against Mr. Baqir and Mr. Mohammad for her shari share in the properties of his son Mr. Ejaz Hussain (deceased). Petitioners have claimed to be legal heirs of Mr. Ali, father of Mr. Mehdi, Mr. Baqir and Mr. Mohammad. Petitioners have further claimed, as is evident from arraying of parties in the petition, that petitioners are the paternal aunts of Mr. Ejaz Hussain, i.e., Mr. Mehdi, Mr. Baqir and Mr. Mohammad had two sisters also, who are the petitioners. So the question worth debate is that what share petitioners are entitled to, in the property of their father Ali and what share petitioners are entitled to, in the property of Mr. Ejaz Hussain? Obviously, said two shares are quite different as through the suit in hand, plaintiff of the suit has prayed for her share in the property of her son Mr. Ejaz Hussain, while share of petitioners, if any to the suit property, would be different from plaintiff of the suit. Therefore, petitioners be impleaded to the suit but up to the determination of their share in the property of said Ejaz Hussain only. While as to the share of petitioners in the properties of their father Ali they are free to file a separate suit because same cannot be determined through the suit in hand. In my opinion, a very crucial aspect of the case is the determination of the above explained position by the trial court and the trial court should be very particular and clever to the extent of determining of this question and this aspect of the case. For that purpose, the trial court is free to implead the petitioners as plaintiffs and not as defendants as petitioners have claimed through this petition. Petitioners to pay costs of Rs.10,000/- to the respondent No.3.

4. I, therefore, allow this petition in the terms and conditions explained and described in para No.3 above. Impugned order as well as judgment/decree dated 28-06-2012 of the trial court set aside. Case stands remanded to the trial court with direction to implead the petitioners as plaintiffs to the suit and that also to the extent of their claim as to their share in the property of Mr. Ejaz Hussain, deceased. Obviously, impleading of the petitioners to the plaint as plaintiffs would not affect the claim of plaintiff of suit as to her shari share in the suit property. Learned trial court is free to ask the so impleaded plaintiffs for showing their shari share in the share of deceased Ejaz Hussain. After doing the needful amendments in the plaint in the light of above directions and after payment of the costs, the trial court is directed to resume the trial proceedings. Copy of this judgment be sent to the first appellate court as well as to the Civil Court for compliance. Parties are directed to appear before the court of Civil Judge No.II, Skardu for further directions from the said court. Petition allowed but subject to payment of costs of Rs.10,000/- and in the terms and conditions elaborated in paras Nos.3 and 4 above. This file be consigned to record. ZC/124/GB Revision allowed.