2012 PLP 6 (YLR)

(3) C.M. No.11056/10 SALMAN HAMID, J.

By a statement dated 4-10-2010 it was informed that the defendant has expired. This C.M.A. cropped up thereafter. It was prayed that Mr. Aurangzeb Alamgir Memon, son of late Mr. Ghulam Muhammad be impleaded in the present suit as, "legal representative" of deceased defendant.

2. Mr. Aurangzeb Alamgir Memon filed counter-affidavit to the affidavit that was filed in support of the C.M.A. It was deposed that he (Mr.Memon) being a step son of the deceased defendant cannot be shown as her legal representative. It was also asserted that such would be against the principles of Muslim Personal Law relating to inheritance. It was also mentioned in his counter-affidavit that as per the list dated 7-2-2007, filed in the suit, names of legal representatives of the deceased defendant had been disclosed and/or brought on record of the file. Absolute unwillingness was expressed by Mr.Memon in impleading him as defendant after the death of Mst. Zaib-un-Nisa.

3. Confronted with above situation, learned counsel for the plaintiff argued that the list that was filed on 7-2-2007 in the suit, showing names of legal representatives of deceased defendant was not in conformity to provisions of Order VIII, Rule 13, C.P.C. Therefore, by virtue of sub-Rule 3 of Rule 4 of Order XXII, C.P.C. and in view of the position that Mr. Memon is unwilling to be impleaded as a defendant, this court may proceed with the Suit notwithstanding the death of defendant inasmuch as that the judgment that would be passed by this court will have the same force and effect as if it was pronounced before the demise of defendant (Zaib-un-Nisa). It was asserted by the learned counsel that the list dated 27-2-2007 provided by the defendant does not conform strictly with the provision of Rule 13 of Order VIII, C.P.C. Neither addresses nor other particulars of the persons mentioned in the list were provided. For want of particulars and addresses such person cannot be arrayed as defendants in place of deceased defendant. Under the circumstances, it was urged that the case against deceased defendant be proceeded with as demanded by sub-Rule 3 of Rule 4 of Order XXII, C.P.C.

4. In support of his contention, learned counsel for the plaintiff relied upon Bibi Khudeja through LRs. v. Pir Sarwaruddin Shah through L.Rs. and others (1992 MLD 490) wherein a Division Bench of this court held that where a defendant had died during pendency of the suit, plaintiff could proceed with it without joining the legal representatives of deceased defendant. It was also held in the cited case that the legal representatives however, have an option left to join the suit proceedings to make any defence appropriate to their character as legal representatives of deceased defendant. The other precedent that was cited by the learned counsel was Allah Wasaya and 5 others v. Irshad Ahmed and 4 others (1992 SCMR 214) wherein the apex court held that plaintiff's failure to bring legal representatives of deceased defendant on record was not fatal to the suit as the proceedings were continued against a dead person, and decree could be passed against such dead person notwithstanding his death during pendency of suit and that non-impleading legal representatives of the deceased defendant would not legally hamper progress of suit. It was further held, therein, that heirs of deceased defendant have equal responsibility to have brought factum of death of deceased to the notice of court with request for bringing his legal representatives on record. In the last precedent i.e. Mst. Lalan Bibi and others v. Muhammad Khan and others (2007 SCMR 1193), it was held by the Hon'ble Supreme Court of Pakistan that defendants are under legal obligation to file list of legal representatives along with his written statement and to nominate a person to intimate court of the fact of death of defendant and to furnish to the court with necessary particulars and addresses of his legal representatives and also to make application for their substitution in view of Order VIII, Rule 13, C.P.C. and non-compliance of such provision would authorize the court to proceed with the suit, notwithstanding death of such defendant. It was also held in the precedent that each and every case is to be decided on its own peculiar facts and circumstances.

5. Learned counsel appearing for Mr. Memon contended that section 2(11), C.P.C. defines legal representatives as a person, who in law, represent the estate of deceased person and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of party so suing or sued. It was urged that Mr. Memon is not a person on whom the estate of the deceased has devolved. Therefore, he cannot be a legal representative of the deceased defendant. It was further urged that since the list of legal representatives of the deceased defendant is available on record of the file, they be arrayed as defendants in the suit. It was further mentioned that even if the particulars of the legal representatives of the deceased defendant as mentioned in the list have not been disclosed, the same is not fatal inasmuch as: in the first instance efforts could be made to find out their particulars whereafter they could be served; alternatively after filing of the amended title such legal representatives can always be served through publication and/or by substituted service in terms of the provision Order V, Rule 20, C.P.C.

6. Gathering the above arguments, it may be noted that the provision of Rule 13 of Order VIII are directory and not mandatory. No consequence or penalty is attached in not conforming with such provisions strictly. As a matter of fact by way of sub-rule 2(a)&(b) of Rule 13 of Order VIII, C.P.C., it is provided that: (a) the defendant may at any time file in the court an amended list of his presumptive legal representatives and (b) nominate another person in the place of the person nominated under Clause (b) of sub-rule (1) for the purposes of that clause. Sub-rule (3) of Order VIII provides that a nomination under clause (b) of sub-rule (1) shall unless vary under clause (b), sub-rule (2) remain in force throughout the pendency of the suit and proceedings arising therefrom, including appeal, revision or review.

7. What come to fore is that: the defendant and/or the legal representatives of defendant whose list is available on the record in the wake of Mr. Memon's unwillingness to become defendant would continue to hold the field and such legal representatives would be arrayed as defen-dants in the captioned suit as the require-ments of the provisions of Order VIII, Rule 13, C.P.C. if not strictly, have been, at least close to it had been complied with. Addresses and other particulars with little efforts could always be located. Right of defence of such legal representative, in all fairness, will not be thrown out by this court only because the list of legal representative of deceased defendant which is available on the record of the file does not fall squarely to the suiting of Order VIII, Rule 13, C.P.C. The plaintiff and Mr. Memon, in the first instance, may find out the particulars and/or addresses of the legal representatives of deceased defendant and thereafter get them served. In failure, such legal representatives may always be served through substituted service.

8. The three precedents relied upon by the learned counsel for the plaintiff also held (1) that the legal representatives however, have an option left to join the suit proceedings to make any defence appropriate to their character as legal representatives of deceased defendant (2) that heirs of deceased defendant have equal responsibility to have brought factum of death of deceased to the notice of court with request for bringing his legal representatives on record and (3) that each and every case is to be decided on its own peculiar facts and circumstances. Since the list of legal representative is available on record, which in spirit was filed in compliance to the provisions of Order VIII, Rule 13, C.P.C., there is an option left with the legal representatives of the deceased to join the present proceedings and to raise appropriate defence; provided they are made aware of these proceedings. Therefore it would be in the larger interest of justice that such legal representatives come forward and defend the suit.

9. Above being the position, the present C.M.A. is disposed of in the terms that in the first instance the plaintiff as well as Mr. Memon would make an effort to find out the particulars of the legal representatives of the deceased defendant; failing which they may be served through substituted service as provided under Order V Rule 20, C.P.C. and thereafter the suit proceed further. The plaintiff is directed to file amended title of the suit within fortnight. C.M.A. is disposed of in terms hereof. M.H./M-155/K Order accordingly.