1993 PLP 633 (CLC)

After dismissal of suit by Sub‑Judge Dhirkot on 31‑8‑1989, filed by the appellant, the appeal against the judgment is also dismissed by the District Judge, Bagh on 29‑12‑1991, hence this second appeal.

2. The facts which lead to this appeal are that a suit was filed by the appellant for a declaration of adverse possession in respect of land measuring 14 Kanals 16 Marlas comprising number Khasra 404, situated in Village Dhirkot. A sale‑deed executed by respondent No.l on 8‑6‑1974 in favour of respondents 14 to 16 (his sons) was also challenged by filing an amended suit on 15‑12‑1982, with the permission of the Court.

3. On refusal of respondent No.2 and deceased father of respondents Nos.5 to 12 (who was alive then), to accept the service of process issued by Sub‑Judge Dhirkot, both were ordered to be proceeded ex parte by the learned Sub‑Judge on 8‑9‑1982. Respondent No.2 later on got the ex pane order vacated, but the order continues against the deceased father of respondents Nos.5 to 12 till now. Besides other objections and para‑wise reply to the plaint, an objection was raised through the written. statement filed by the defendant/respondent on 16‑11‑1983, that suit is liable to be dismissed/stands abated, for failure of appellant/plaintiff to implead the legal representatives of Sultan Muhammad Khan father of respondents 5 to 12, who, according to answering defendants, had died on 18‑4‑1983.

4. Several issues were framed by the trial Court on 3‑12‑1983, but the suit was tried on issues 4 and 5 only. Issue No.5 was decided against the defendant/respondents against which no appeal is filed by them. However, the suit was dismissed on account of issue No.4, which is as follows:‑‑ The learned District Judge, Bagh concurred with the Sub‑Judge on this issue and held that as the legal representatives of the deceased Sultan Muhammad Khan were not impleaded, hence the suit was declared to have abated and appeal was dismissed.

5. The learned counsel for the appellant has assailed the finding of the Courts below on two grounds: one of which is specifically raised in the memorandum of appeal; while the other ground was argued at bar with the permission of the Court. The first ground of attack against the orders of the Courts below is that the share of Sultan Muhammad Khan deceased was distinctly ascertained, hence the suit, if it is at all to abate could abate to the extent of his share only not in toto. He referred to the evidence lead in this behalf and the entries in the record‑of‑rights where the share of the deceased is entered as 47th share, which, according to the learned counsel comes to 2 Marlas of land only. The learned counsel placed reliance upon 1.989 CLC 2402 and PLD 1978 SC (AJ&K)

112. The other point which is argued with the permission of the Court is that as Sultan Muhammad Khan deceased was proceeded ex parte before his death on account of his refusal to accept the service, the appellant/plaintiff was not bound under law to implead the legal representatives of a defaulter as according to him, his legal representatives had to step into their predecessor's shoes and as an ex parte order already stood recorded against the deceased, no fresh notice was required against his legal representatives as well. The learned counsel for the respondents/defended the orders passed by the Courts below and contended that in cases of adverse possession, the suit abates in toto as the interest in case of a decree of adverse possession is joint and indivisible. He referred PLD 1991 Azad J&K 56 and PLD 1977 Lah.

513. The other contention raised in the Court is opposed on the ground that no fresh ground can be raised for the first time, without a specific plea in the appeal.

6. After hearing the learned counsel for the parties at length, I've gone through the record and considered the arguments advanced at Bar. The learned Sub‑Judge after framing the issues confined the trial of the case to the issue of failure of plaintiff/appellant to implead the legal representatives of deceased Sultan Muhammad Khan and its effect upon the suit. The real matter in controversy between the parties is neither tried nor attended. Though the issues of law which do not involve inquiry into the facts ought to be decided first, so as to lessen the burden of parties. If a suit is ultimately to fail for a patent and glaring legal flaw, it should not be allowed to prolong, which adds to the agony of the parties. But if an issue is not simply an issue of law only, but a mixed question of law and facts, it is the responsibility of the Court to order and allow the parties to lead evidence on all the issues and decide all the issues together. Decision of some of issues as preliminary issues, after recording evidence on those issues which takes as much time as is consumed for the trial of the entire case, is abuse of process of Court and in fact, vexing the parties. The trial Courts in cases of mixed issues of facts and law, must record the evidence as a whole and decide the case on all the issues, instead of forcing the parties to undergo multiple rounds of litigation. The case in hand is an example of such a cumbersome procedure adopted by the Court, where the parties, even after eleven years of litigation are at the preliminary stage.

7. A few facts of the case are admitted. E.g. the death of Sultan Muhammad Khan father of respondent 5 to 12; the order of the Court to proceed ex parte against Sultan Muhammad Khan, when he was alive; the failure of deceased and of his legal representatives to have the ex parte order set aside; failure of the plaintiff/appellant to file an application for impleading the legal representatives of the deceased Sultan Muhammad Khan; and the ascertained share of Sultan Muhammad Khan in the disputed land being 47th.

8. The legal controversy as to whether failure of the plaintiff to implead the legal representatives of a deceased person within time provided by law, entails abatement of his suit in toto or to the extent of his share, is set at rest by the Supreme Court. It is held in "Muhammad Yaseen and others v. Mst. Begum Noor and others" PLD 1978 SC (AJ&K) 112: "

9. It is now settled that where the rights of the plaintiffs and the defendants are ascertained or ascertainable, the death of one or more of them cannot cause the abatement of the entire suit. A suit. in such cases shall only abate with reference to such of the plaintiffs or defendants whose legal representatives have not been substituted but rights of other parties shall be adjudicated on the merits of the case." This view is followed in the case of "Muhammad Latif Khan and 15 others v. Muhammad Ashraf Khan and 3 others" reported as 1989 CLC 2402. It is held that: " .... It is well settled that when interest of the deceased party whose legal representatives are not brought on the record is ascertainable distinctly from the surviving parties the abatement only takes place in relation to the deceased party." Applying the above test of law to the case in hand, the suit of the appellant/plaintiff cannot be said to have abated in entirety, as the share of Sultan Muhammad Khan is distinctly entered as 47th in the revenue record produced alongwith the suit. The authority reported as PLD .1991 Azad J&K 56, laying down the following rule: "

9. The decree of the adverse possession is a joint and indivisible decree. Therefore, if the appellants are allowed to continue their appeal against the remaining respondents, there is likelihood of coming into existence of two inconsistent decrees if their appeal is allowed. order to avoid such an eventuality, where conflicting and contradictory decrees are likely to be passed, the appeal abates as a whole."

9. It is respectfully differed for the reasons that the authority relates to a case of decree of adverse possession whence the shares were not ascertained, but the case in hand is still at a preliminary stage and the share of the deceased is distinctly ascertained. Moreover, there is no likelihood of coming into existence of two inconsistent decrees, as even if the suit of the plaintiff/appellant for a declaration of adverse possession is deemed as abated, his right of defence to a suit for possession by the legal representatives of the deceased is not barred. In the case of adverse possession, the possession of a person is protected for the reason. of remedy of the owner for the possession being barred. The position in both the cases remains the same, i.e. the possession of the plaintiff/appellant is protected. Thus there is no likelihood of conflicting decrees.

10. However, the appeal deserves acceptance on a different ground. It is admitted that an ex parte order was passed by the trial Court against the deceased Sultan Muhammad Khan, when he was alive. In case of an ex parte order, the defendant no doubt, may join the proceedings at any later stage, but hr cannot be relegated back to the stage where the ex parte order was passed, unless that order is got set aside. The ex parte order creates a right in favour of plaintiff, to obtain an ex parte decree forthwith, if the record justifies the decree, and if the evidence already on record does not so justify, it still entitles the plaintiff to lead the evidence without further notice or an objection from the defendant. The legal representatives of the deceased defendant step into the shoe of their predecessor. They are bound to follow the legacy of their predecessor. Their right to be impleaded as legal representatives or obligation of the plaintiff to implead them as such is not independent of the right of the deceased or higher than that. The legal representatives of a deceased defendant cannot be given the premium of the death of their predecessor if he was a defaulter. They have also to follow the same course for bringing their defence on record, which their predecessor had to. The rules laid in the Code of Civil Procedure are of equal and similar application. The concession, relaxation or penalty has to be of uniform application. One provision of the Code cannot be interpreted in a way that it takes a right from a litigant party and the other in the way that it not only bestows the other with a higher right, but pushes the right of his adversary further back. All procedure is for advancement of justice, not to stifle justice. To me there seems no justification in burdening the plaintiff/appellant with the penal provisions of Order XXII, Rule 2 or 4 of C.P.C. and exonerating the defendants/respondents from the obligation to comply with the provisions of Order IX, Rules 6 and 7 of C.P.C.. The right to invoke the provisions of Order XXII, C.P.C. in fact, could have come into play when the deceased party or his legal representatives had joined the proceedings after complying with the requirements of rule 7 of Order IX, C.P.C.

11. The appellant/plaintiff did not fail in his duty to implead the legal representatives of the deceased when such duty under law, in fact, fell upon him i.e. at the stage of filing first and second appeals. There was neither any stage nor an obligation upon the plaintiff to implead the legal representatives of the deceased before vacation of the ex parte order against them. The just and proper course under the circumstances seems to relegate the parties to the stage when the matter was closed and let them play their cards fairly on merits.

12. The appeal is, therefore, accepted. The order of abatement of plaintiff/appellant's suit is set aside and ex pane order passed by the trial Court on 8‑9‑1982 against the predecessor of the respondents 5 to 12 is also set aside. Respondents 5 to 12 are allowed to file the written statement before the trial Court and the Court is directed to expeditiously dispose of the matter on merits, as the parties have already suffered a lot for technicalities. In view of the circumstances of the case, no order as to costs. Appeal accepted. Order announced. AA./544/H.C.A Appeal accepted.