Wednesday, 29 October 2014

Application to make legal heirs party to the suit

PLJ 1996 Karachi 353
Present: SHAFI MUHAMMADI, J. Late SAIFUDDIN through his legal representative-Applicants
JAMIL AHMED-Respondent
Revision Application No. 85 of 1995 accepted on 11-7-1995.
 (i) Civil Procedure Code, 1908, (Act V of 1908)--
—S. 115 read with O.XXII r. IV-General Power of Attorney-Revocation of-Suit for declaration-Death of defendant-Application by Legal heirs for impleading as defendants-Dismissal of-Challenge to--Delay in moving application under O. 22 r. 4~Effect of—If delay can be explained and no prejudice is caused to any contesting party, then delay can be over looked-No point of delay was urged by respondent when application was argued before trial Court-Held: Weapon of technical delay in moving an application should not be used in promotion of principles of natural justice.
[Pp. 3357 to 359] A, B, & C
1994 CLC 544, 1994 CLC 2030 rel.
(ii) Civil Procedure Code, 1908 (Act V of 1908)--
—O. 22 r. 4-Whether Revision is not maintainable against O. 22 r. 4 of CPC-Question of-It is not correct that only appeal can be maintainable in each and every case of an application under O. 22 R. 4--In a case where there is not ex-parte order and defendant is contesting against plaintiff with full force then refusal by Court to bring his L.Rs on record after his death would attracted only Revision-After amendments brought in Rule 4 Order 22 CPC through L.R.O. 1972, a suit or appeal does not abate for non impleading of L.Rs even if no application is made-Held : If L.Rs. are refused to be brought on record, such decision of court would amount to crucify justice-                   [P. 359] D & E
AIR 1957 Madras 236 ref.

 (iii) Legal Representatives-
—Legal representatives only step into shoes of their predecessor-Right of legal heirs after impleading them as legal representatives of deceased defendant is neither lower nor higher or independent, because death of deceased cannot be used as rod of right to get any concession relaxation, penalty or sympathy for any body.            [P. 362] H.
(iv) Words and Phrases-
—O. 22 r. 4 (4), of C.P.C.-Opening sentence of sub rule 4 of Rule 4, does not give an impression of "Probibition"~Therefore, there is no prohibition in bringing LRs on record after death of any defendant.       [P. 360] F
(v) Words and Phrases--
—O. 22 r. 4(4), of C.P.C.--Word "or" used in sub-rule (4) of Rule 4 order 22 CPC given both impressions "Either" and "Conjunctiveness" in different situations--In case interest of L.Rs is effected directly or indirectly, then it is not proper for a court to dismiss an application under O.22 Rule 4.
[Pp. 360 & 361] G.
Mr. Shamsul Arifeen, Advocate for Applicants.
Mr. Khalid Habibullah, Advocate for Respondents.
Dates of hearing: 19-6-95, 26-6-95, 28-6-95, 3-7-95 and 11-7-1995.
This revision is addressed against the order of learned Vlth Senior Civil Judge, Karachi (South) passed on January 31, 1995 whereby application under Order 22 rule 4 C.P.C. filed by L.Rs of deceased defendant namely, Saifuddin for impleading them as Legal Representatives of the deceased was dismissed.
2. Facts giving rise to the present revision relate to a "twenty years old controversy" started in the shape of Suit No. 1347/75 renumbered as 3056/1985 on transfer to the Vlth Senior Civil Judge. The suit was filed by the present respondent namely Jameel Ahmed, against deceased Saifuddin and an advocate namely Muhammad Ahmed, for deceleration and permanent injunction. Important facts as unfolded in the plaint can be summarised as under :-
(a)              After creation of Pakistan, deceased Saifuddin (stated to be defendant No. 1 in the plaint and to be referred so hereinafter) became the owner of a business already established in Karachi and he executed a General Power of Attorney   on   8.10.1970   in   favour   of   the   plaintiff/respondent.
(b)       The said defendant purported to revoke power of Attorney on 31.1.1974 on board of foreign ship "S.S. Dwarka". The purported revocation was delivered to one Muhammad" Ahmed advocate made as Defendant No. 2 in the suit.
(c)              Declaration was sought by the plaintiff that purported  evocation of the power of Attorney by defendant No. 1 and its delivery to defendant No. 2 was illegal and unlawful and respondent continued to be lawful attorney of Defendant No. 1.
(d)              Saifuddin, on account of being on Indian National, could not travel to Pakistan to look-after the case property, therefore, he failed to appear in the court to file written statement with the result that an exparte decree was passed against him on 12.5.1976 whereas defendant No. 2 was dropped by the plaintiff.
(e)              Civil Appeal filed against the exparte decree was also dismissed by IV Additional District Judge on 20.7.1976. Hence Revision Petition No. 202 of 1976 was presented before this court which was allowed on 12.9.1984 and the matter  was   remanded  back  to  the  trial   court  for proceedings from the stage of evidence of the plaintiff as it was on 24.4.1976 with the following observations :-
"One cannot loose sight of the fact that the petitioner/defendant had merely been made exparte but he was still represented by a Counsel and if the evidence of the plaintiff was recorded in the case, the counsel of the petitioner could exercise the right of cross examination and could effectively present the case of the petitioner and brought out facts which could help the court in arriving at a reasonable decision. It is thus clear that by changing the decision of recording of evidence of the plaintiff to the decision of granting the decree merely on the basis of the averments in the plaint the court deprived the petitioner of a valuable right to cross examine the plaintiff which was available to him by the order dated 24.4.76. In these circumstances I am of the view that the dictim of their lord­ships of the Supreme Court in P.L.D. 1978 S.C. 89 is attracted, where a mere holder power of attorney without disclosing him interest, if any, in clear details, has been granted a declaration without any condition that the power of attorney granted in his favour is irrevocable. Therefore, I set aside the decree of the two lower courts below and send back the case to the trial court for proceeding with the case from the stage of the evidence of the plaintiff as it was on 24.4.1976 after the petitioner had been made exparte. I want to make it quite clear that I have not set aside the decision made by the trial court in making the petitioner exparte on 24.4.1976 because nothing has been brought to my notice which could convince me that the order of exparte was unjustified."
This was the end of first round of controversy in the High Court.
3.     After remand of the case by the High Court in 1984 the trial court failed to decide it even after expiry of 10 years and Saifuddin, the defendant No. 1, died in 1994, An application under Order 22 Rule 4 CPC was filed by the legal representatives of late Saifuddin for bringing their names on record but the application was dismissed on January 31, 1995 by  he learned trial court on the ground that it was not necessary to substitute the LRs of such defendant who had failed to file written statement. Logically of the learned trial Judge in his.own words, appears as under :-
"To may mind. L.Rs cannot be allowed to bring on record because defendant No. 1 failed to file the written statement, therefore, they are only at liberty to cross examine theplaintiff and if they have engaged their counsel, their counsel could only address the court for the proper guidance to the court to reach to right conclusion. For the abovereasons I find no merit in the application which his hereby dismissed."
Aggrieved by the said conclusion, LRs of deceased Saifuddin presented this Revision on 6.4.1995 which is the second round before this Court.
4.     Before, I touch the meritorious averments of the learned advocate, I consider it necessary to point out that on 29.5.1995, when this matter was fixed for Katcha Peshi and Mr. Shamsul Arfin, the learned advocate for the applicant was arguing the matter, Mr. Khalid Habibullah appeared in the court and showed his anxiety on behalf of the respondent to say something. I cannot put a seal of appreciation on the conduct of the learned advocate who intercepted  at the  stage of  atcha Peshi but Ioverlooked the same on account of scandalous delay of 20 years already taken place in disposal of the case by the trial court and I wanted to disposeof this revision as soon as possible. However, this indulgence further encouraged the learned advocates not only to argue the matter on the point specifically raised in the memorandum of this revision but also on several other points at bar including applicability of several provisions of law such as, Order 1 Rule 10, Order 22 Rule 10, Order 41 Rule 20 of C.P.C. besides several Articles of Limitation Act. Admittedly none of the points were raised before the trial court. In these circumstances, burdening this court with such points which were never raised before the trial court by taking advantage of unlimited patience of this court could be avoided and it would be appreciable that the same he avoided.

5.    This reality may not be denied by any sensible person that procedural provisions of law are introduced for advancement of justice and not to stifle the justice by hanging it with the ropes of technicalities because such an attitude may deprive the rightful persons from their rights which is strictly prohibited in our religion. Reference in this regard can be made to a tradition of the Holy Prophet (peace be upon him) quoted in a case reported as Kashmir Corporation v. P.I.A. in PLD 1995 Karachi 301. But these linesdo not mean to ignore any provision of Civil Procedure Code. The courts are bound to follow these provisions in their true sense and with their true spirit so that all other relevant provisions remain linked with one another and none of them becomes practically redundant at the time of its application. Ihave no hesitation to say that if any interpretation of any provision of law on the principles of natural justice keeps the said spirit and sense intact, then, the same must be preferred instead of falling in the clutches of technicalities. On the basis of these propositions, I decided to touch the main points urged by the learned advocates, of the parties in the forthcoming paragraphs.
6.   The learned counsel for the respondent supported the impugned order of the trial court on three grounds: one of which was specifically raised by the petitioner in the memorandum of revision while the other two grounds were mentioned in the counter-affidavit filed by the respondent. These grounds can be summarised as under :-
(a)    Interpretation of Order 22 Rule 4 CPC as discussed by the trial court was in accordance to the spirit of legislation ;

(b)              Application filed under Order '±2. Rule 4 CPC by the Petitioner before the trial Court was time-barred; and
(c)             The present revision was not maintainable.
So far as the delay in moving an application for impleading the LRs of a deceased party is concerned I am of the view that if any party of a suit fails to bring such an application within time and the said delay can be explained in the light of facts and circumstances of the case and no prejudice is caused to any of the contesting parties if these LRs are brought on record, then the delay can be overlooked. Reliance in this regard can be placed on the case of Walayat Hussain Vs. Dost Muhammad (1994 CLC 544) and Muhammad AsianVs. The Custodian Evacuee Property (1994 CLC 2030).
It was observed in the case of Walayat Hussain (Supra) by a Single Bench of the Lahore High Court as under :-
"It was true that application for setting aside of the abatement and substitution of the deceased defendant's legal representatives was filed beyond time but in the facts andcircumstances of the case noted above, the delay deserved to be   overlooked.    Contrary   course   shall    cause   grave miscarriage of justice and punishment awarded shall be misplaced.  In  result of judgments  of the lower courts        defendants earned a premium and the plaintiff suffered undeserved punishment"            Similarly the Hon'ble Supreme Court of A. J. & K obs rved in the case of Muhammad Aslam (supra) that :-
"It is a settled proposition that in appropriate cases the application to implead legal representatives filed after limitation can be allowed if the circumstances so justify in this regard."
In the present case, it is not known whether any separate application ™" -i. for condonation of delay or any such prayer was made or not in the _^, application moved under order 22 rule 4 CPC but from the impugned order it can be understood that no such point was urged by the respondent when application under Order 22 Rule 4 CPC was argued before the trial Court. This sole reason an be treated sufficient to strike down contention of the learned advocate for the respondent regarding delay, if any, in moving application by the petitioner under Order 22 Rule 4 CPC but I consider it necessary to take into consideration several other facts and circumstances too which are reflected from the record to deal with the point of delay in moving application under Order 22 Rule 4 C.P.C. by the LRs of the deceased defendant. Admittedly the petitioner (L.Rs of the deceased) reside at ^ Bombay in India and their deceased father Saifuddin was also an Indian vX, National. Although he was technically knocked out from filing his written statement before the trial court, yet he continued fighting for his rights with the present respondent till his death during the last twenty years. Position of the LRs is not different from the deceased predecessor because they also cannot travel freely from India to Pakistan. These facts and circumstances convince me not to burn the rights of these L.Rs in the furnace of technicalities merely on the ground of delay of few weeks in moving an application particularly in comparison to the delay of more than twenty years during which the suit could not be disposed of by the trial Court It is on account of such type of scandalous delay that the poor citizens avoid to fight for their rights in the courts and I have no doubt in my mind that such courts are responsible themselves for shattering the confidence of the courts ~ j—• in the eyes of citizens. Besides these important aspects, I enquired Mr. Khalid Habibullah, the learned counsel for the respondent to tell this court as to what prejudice would be caused to the respondent/plaintiff if the legal representatives are brought on record. The learned counsel lukewarmly conceded that no prejudice may be caused to the respondent.
On account of these reasons, I do not consider it proper that weapon of technical delay in moving an application be used as hurdle in promotion of principles of natural justice. In these circumstances, the delay in moving an application under Order 22 Rule 4 C.P.C. can be overlooked particularly when no prejudice is caused to the opposites party and the matter can be decided on merits.
7. Another ground also urged at bar was about the maintainability of this Revision. It was stressed by the learned counsel for the respondent that this revision is not maintainable because the matter can be agitated in an appeal. But the learned counsel failed to satisfy the court that only appeal could be filed against an order of dismissal or rejection of an application under Order 22 Rule 4 C.P.C. I have no doubt in my mind that in the circumstances of the case, the petitioners were fully justified to seek their remedy by filing this revision and not an appeal. There may be circumstances where revision may not be maintainable if an application under Order 22 Rule 4 C.P.C. is dismissed or allowed but it is not correct that only appeal can be maintainable in each and every case. For example in case of an ex-parte order against a deceased defendant during his life, a revision would not be maintainable against the finding of a Court if it comes to a conclusion that bringing legal heirs of deceased defendant is not necessary. Reference is this connection can be made to the case of Shamsher Narain Singh vs. Muhammad Safe reported in AIR 1926 Patan 29. But, in a case where there is no ex-parte order and defendant is contesting against the plaintiff with full force then refusal by the court to bring bis L.Rs on record after his death would attract only Revision. Reference in this regard can be made to the case of Rqjappa Vs. Andalamal reported in AIR 1957 Madras 236.
Same is in legal position of present revision. The trial Court had passed ex-parte order against the father of present petitioners on the ground of his failure to file written statement but the said order was set aside by this Court as detailed in para 2(e) above. At the time of death of the deceased, there was no exparte order against him and he was contesting the suit with full force. Therefore in the light oiRajappa case (supra) the contention of the learned advocate for the respondent has no force and the revision ismaintainable.
Besides the above reasoning, this point can be considered from another angle too. Prior to the Law Reforms Ord., 72 abatement of suits was common if a plaintiff failed to move an application for bringing the legal heirs on record within specified time but after the amendments brought in Rule 4 Order 22 CPC through L.R.0.1972, a suit or an appeal does not abate for non-impleading of LRs even if no application is made for the said purpose. It continues to its conclusion as if the plaintiff was still alive. In these circumstances if the legal heirs of a deceased defendant are refused by a court to be brought on record, then the result is obvious i.e. that the court may proceed ex-parte or without being opposed by anyone in favour of the plaintiff by keeping the LRs of the deceased to remain spectators only. Such decision of the Court would amount to crucify justice particularly in the present case because this court had already not approved such an act in the previous revision. In the light of this reason also, the contention of the learned advocate for the respondent does not appear to be convincing. I, therefore, hold that in view of the facts and circumstances as discussed above, this revision is maintainable.
8.   The main bone of contention between he controvertists in this revision relates to construction of Order 22 Rule 4 CPC. The portion under discussion of the relevant provisions to be construed i.e. sub-rule (4) Rule 4 of Order 22 CPC, runs as under :
"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 contests the suit at the hearing;   "
(underlining* is my own)
In my view the opening sentence of the said provisions i.e. "It shall not be necessary" certainly differs in its sense from that "It shall be un-necessary". May this view be accepted or not by any of learned advocates but, undoubtedly, this sentence does not give an impressing of ^'prohibition,". Therefore, in my view if there is any difference of opinion among the parties regarding necessity of bringing LRs on record and if any of the contesting parties, may be the plaintiff/plaintiffs or defendant/defendants", wants to bring LRs on record after the death of any defendant then there is no prohibition. Therefore, the words "It shall not be necessary be not construed in the sense that it is prohibited.
9.   Notwithstanding to this interpretation of the words i.e. "It shall not be necessary", contention of the learned adv., for the respondent can be taken into consideration from another angle too.
The relevant portion of the said provisions can be read as under :
(a)    It   shall   not   be   necessary   to   substitute   the   legal representative of any such defendant who has failed to file a written statement.

(b)    It  shall  not or be  necessary to  substitute the  legal representative of any such defendant who had failed to appear and contest the suit at the hearing.
From the impugned order it appears that the learned court has treated the word "Or" used in the provision in the sense of "either" or disjunctively. But the question arises:

"Here in Italics.
What would be the legal position if written statement has not been filed but the defendant is appearing and contesting the suit at the hearing or vice-versa ?
Whether the word "or" gives an impression of "conjunctive­ness" or otherwise ?
I am of the view that the word "or" used in sub-rule (4) of Rule 4 Order 22 CPC gives both impressions in different situations. For example, if death of defendant does not affect the interest of his legal heirs or in case the suit is decreed but the decree cannot be legally executed against the legal heirs then the word "or" would be read as "either". In such case, there may not be any necessity of brining the L.Rs on record if the deceased defendant and either failed to file written statement or had failed to appear and contest the suit at the hearing. But, in case the interest of L.Rs is affected directly or indirectly in the shape of execution of decree if the suit is decreed or in the shape of appeal filed against them, in case the suit is dismissed, or in another shape whatsoever it may be, then it is not proper for a Court to dismiss an application under Order 22 Rule 4 CPC no matter the same is moved by the plaintiff or by the L.Rs of the deceased defendant. In such situation the word "or" has to be construed in the sense of conjunctiveness.
In the present case, no doubt the deceased defendant has failed to file his written statement but he was appearing and contesting the suit at the hearing as a right which on denial by the court has been restored by this Court by interpreting this provision in that sense. In the present case if the legal feeirs are not brought on record and suit is decreed in favour of the plaintiff/respondent or dismissed, then these legal heirs may face hardships at the time of execution of decree or in case an appeal is filed against them. In this regard contention of the learned counsel for the plaintiff that these legal heirs can contest the matter at the time of execution of decree or appeal, as the case may, be does not seem to be convincing or in accordance to the actual spirit of justice. Hence the same cannot be embraced by this Court.
10. It may be interesting to point out that the last few lines of the impugned order appear to me not only novel but also symbol of dogmatism. These lines run as under:
"........................... they (mean L.Rs) are only at liberty to cross examine the plaintiff and if they have engaged their counsel, their counsel could only address the court for the proper guidance to the court to reach to right conclusion."
Can any court allow any counsel to address the court on behalf of any such person who is not a party in the matter ?
To whom the plaintiff would make party as respondent in an appeal in case the suit is dismissed & if there was none as defendant after the death of defendant during the pendency of suit ? Whether the dead person ? or
The L.Rs who were not brought on record ?
I leave these questions without any further observation for consideration of the learned Senior Civil Judge, who dismissed the application under Order 22 Rule 4 CPC by expressing his view that a counsel could address the court for such legal heirs who were refused to be brought^ on record, and for the learned advocate also who supported such an impugned order of the learned trial Court.
11.   The learned counsel for the respondent specifically expressed his apprehensions that the L.Rs, if permitted to be brought on record, may re-open different issues by claiming that they have independent rights. To wash-away such baseless apprehension based on presumptions, I consider it necessary to make it clear that the petitioners in this revision (i.e. the LRs. Of the deceased defendant) only step into the shoe of their predecessor to follow his legacy and death of their deceased predecessor does not provide them any premium. Therefore, right of legal heirs after impleading them as legal representatives of deceased defendant is neither lower nor higher or independent of the right of the deceased because death of any defendant cannot be used as rod of right to get any concession, relaxation, penalty orsympathy for any body.
However, any effort or will of the respondent/plaintiff to get final order in the suit by keeping the L.Rs. of the deceased defendant out of the suit in any manner whatsoever is not a fair play particularly when no prejudice is caused to him in allowing the application under Order 22 Rule 4 CPC and the legal heirs are wishing to contest the suit with all its consequences. The just and appreciable path leading towards justice requires the parties to play their cards fairly on merits. In this regard the courts can play their role most effectively by crossing all hurdles, if any, to promote the said cause.
12.     In view  of the  aforesaid reasons,  this Revision  deserves acceptance which is accordingly allowed. Resultantly the impugned order of the learned Senior Civil Judge, Karachi (South) dated 31.1.1995 is set-aside. L.Rs. of the deceased defendant to be brought on record and the matter would proceed now from 'the stage as it was when defendant Saifuddin died.
The trial court is also directed to dispose of this "20 years old" matter expeditiously instead of keeping it as "antique". It would be appreciable if the suit be not adjourned in future for more than 7 days after every hearing unless there are unavoidable circumstances if it cannot proceed from day to day. No order as to costs in the circumstances of the case.
(MYFK)                                                                          Revision accepted.

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