2007 PLP 941 (SCMR)

SARDAR MUHAMMAD RAZA KHAN, J.

Mian Abdul Majeed of Mohallah Kutb-ud-Din Rawalpindi and Sheikh Muhammad Ishaque of Kanak Mandi Rawalpindi had been litigating over the disputed shops and a godown. Writ Petition No.111R of 1983 was lastly filed by Mian Abdul Majeed before Lahore High Court, Rawalpindi Bench on 28-2-1983. During its pendency Sheikh Muhammad Ishaque passed away on 12-10-1992. The writ petitioner impleaded Mst. Zubaida Begum widow, Muhammad Ilyas, Fayyaz Ahmed and Muhammad Riaz, sons of deceased who contested the writ petition, which was ultimately decided in favour of Mian Abdul Majeed on 17-5-2001.

2. The aforesaid impleaded legal heirs did not proceed further but one Fareed Ahmad alias Sheikh Shahzad, the son of Sheikh Muhammad Ishaque filed a Petition No.2443 of 2001 seeking leave to appeal from the judgment, dated 17-5-2001 passed in Writ Petition No.11/R of 1983. It came up for hearing before this Court on 12-12-2003 when learned counsel for the respondent raised a preliminary objection regarding maintainability of the petition on the sole ground that petitioner Sheikh Shahzad is not a legal representative of Sheikh Muhammad Ishaque deceased and that being a stranger he had no locus standi to challenge the judgment of the High Court.

3. To the contrary, it was alleged that the real name of the petitioner was Fareed Ahmed and that Sheikh Shehzad was his alias or nick name and that he being the son of Sheikh Muhammad Ishaque and being directly an aggrieved person, had every right to file the petition irrespective of the fact whether he was impleaded in the writ proceedings or not. He relied upon various documents like special power of attorney executed by all other legal heirs of Sheikh Muhammad Ishaque describing Fareed Ahmed alias Sheikh Shehzad as the son of Sheikh Muhammad Ishaque. Further reliance was placed on birth certificate, national identity card, passport, driving licence and Nikah Nama. All these documents are reproduced in the judgment dated 12-12-2003 in C.P.L.A. No.2443 of 2001. This Court in the said judgment came to the conclusion that Sheikh Shahzad was a stranger and not entitled to get any relief. The leave was, therefore, declined. The petitioner has filed the instant review petition against the judgment, dated 12-12-2003, aforesaid.

4. It is a known fact that the' provisions concerning abatement of civil causes have long been deleted from the Civil Procedure Code through Law Reforms Ordinance, 1972. Thereafter, the legal heirs of any person dying during the pendency of litigation automatically become bound by the decision against their predecessor-in-interest, even without impleadment. Thus, the judgment, dated 17-5-2001 would be binding on all the legal heirs of the deceased Sheikh Muhammad Ishaque provided they are the legal heirs. Sheikh Farid Ahmed alias Sheikh Shahzad, if happens to be the son of Sheikh Muhammad Ishaque, is bound by such decision and hence is a party directly affected by such judgment but without impleadment. He, therefore, is entitled to file a petition or appeal, as the case may be, against such judgment. In case of being a son, he is never a stranger to the proceedings.

5. His status needs to be discussed and determined. It is a matter of common sense that if one legal heir of some one admits any other to be his co-legal heir, he makes a statement against his interest by admitting the other one as his co-owner in the property, to be shared by that other. In the instant case, leaving aside for the moment, all pieces of evidence mentioned earlier, the special power of attorney dated 28-12-2002 given by as many as eleven legal heirs of Sheikh Muhammad Ishaque in favour of Fareed Ahmed alias Sheikh Shahzad (page 27 of the C.M.A. No.884 of 2003), describing him as son of Sheikh Muhammad Ishaque is an unavoidable document that could not be ignored by any stretch of reason. This Court, while passing the order under review, primarily fell into the confusion created by the petitioner as well as by his alias and omitted to consider the most important document in the shape of special power of attorney dated 28-12-2002. We, believe, in the interest of justice, that there exist strong circumstances for the review of the impugned judgment.

6. The objection that Fareed Ahmed alias Sheikh Shehzad did not apply for impleadment before the High Court, is not material because impleadment, if at all necessary, was the responsibility of the petitioner in the writ petition. A non-impleaded legal heir, if directly affected by such judgment, has every right to challenge such judgment. As already observed, when all the legal heirs admit, the petitioner to be their son and brother respectively, one has. no reason to disbelieve. The only confusion is created by the irresponsible conduct of Fareed Ahmed alias Sheikh Shehzad who seems to be more fascinated by his alias rather than his real name given in more than many documents. We are constrained to observe that such weakness alone, for which the opposite party can duly be compensated, should not be considered an impediment in the way of doing complete and real justice. We may also observe that the family of Sheikh Muhammad Ishaque has not been exhibiting a responsible conduct. Although not bound yet the four legal heirs impleaded in the writ petition ought to have informed the Court that their predecessor-in -interest died leaving behind eleven heirs. In the instant review petition, the legal, heirs numbering eleven are mentioned at page 8 but the special power of attorney dated 28-12-2002 indicates of another daughter named Farrah Deeba who is omitted to be given in the list at page 8.

7. Another important factor must not be lost sight of. Original Petition No.2443 of 2001 was filed by the petitioner on 20-7-2001 while special power of attorney on behalf of all the remaining heirs was executed on 28-12-2002. In such power of attorney the serial number of C.P. No.2443 of 2001 pending before the Supreme Court is already mentioned, meaning thereby, that all the legal heirs who had not filed any petition against the judgment in writ petition and the pendency whereof was within their knowledge on 28-12-2002, have failed to challenge the judgment dated 17-5-2001 in Writ Petition No.11/R of 1983. They, now cannot challenge the same being hopelessly time-barred,. Their act of authorizing Fareed Ahmed alias Sheikh Shehzad to file the petition solely in his own name, is not valid for being hopelessly time-barred by almost one and half years. Petition No.2443 of 2001 can, therefore, be considered to be filed by the petitioner alone and in his own right.

8. Consequent upon what has been discussed above, we are of the view that the petitioner deserved to be heard in Civil Petition No.2443 of 2001 and, in the circumstances, was not a stranger. The slacking and irresponsible behaviour of the petitioner requires also to be taken notice of. The petition is accepted, the judgment, dated 12-12-2003 is reviewed and C.P.LA. No.2443 of 2001 is restored for rehearing on merits, subject to a cost of Rs.40,000 to be paid to the opposite party and to be deposited by the petitioner in this Court before Deputy Registrar (Judicial), within fifteen days from the announcement of the order, failing which the judgment dated 12-12-2002 of this Court in C.P.L.A. No.2443 of 2003 shall hold the field. M.H./S-5/SC Petition allowed.