IN THE HIGH COURT OF SINDH AT KARACHI.
H.C.A. No.143 of 2010
Anwar Khan and other
V/s
Fouzia Khan and another
Before:
MR. JUSTICE AQEEL AHMED ABBASI J.
MR. JUSTICE FAROOQ ALI CHANNA J.
Date of Hearing: 09.10.2012
Appellants: Through Ms. Shabana Ishaque, Advocate.
Respondent No.1: Through Mr. Mirza Saeed Baig, Advocate.
Respondent No.2: Through Mr. Rafiullah, Advocate.
AQEEL AHMED ABBASI J.:- Through instant high court appeal, the appellants have impugned two orders i.e. (1) Order dated 16.03.2009, whereby, the suit No.143/2010 filed by the appellants was dismissed for non-prosecution and (2) Order dated 19.04.2010, whereby, the application U/O IX Rule 9 CPC filed by the appellants for restoration of suit was dismissed by the learned Single Judge of this Court.
2. While making submissions, learned counsel for the appellants has argued that the Suit No.143/2010 was filed by three plaintiffs out of which Abdul Rasheed, plaintiff No.2 had died and on the fateful date i.e. 16.03.2009, the matter was fixed “for further order as amended titled was not filed as per order”. It has been contended by the learned counsel that on the said date no one appeared from either side and the learned Single Judge dismissed the entire suit for non-prosecution without any fault on the part of appellants No.1 & 3. Per learned counsel the plaintiffs having no knowledge about the dismissal of suit when approached the office to pursue an application filed U/O 40 Rule 1 CPC on 03.10.2009 came to know about such dismissal of the suit and moved an application U/O IX Rule 9 CPC on 27.10.2009 for setting-aside the order dated 16.03.2009 and restoration of the case to its original position, however the said application was declined by the learned Single Judge on the ground of limitation, though admittedly, the application U/O IX Rule 9 CPC was filed within time i.e. 30 days from the date of knowledge. Learned counsel has further contended that even otherwise, the order dated 16.03.2009 was patently illegal and void ab-initio, therefore, no limitation runs against such void order. It has further been contended that even the list of legal heirs of deceased plaintiff No.2, who died during proceedings was available in the suit file, therefore, the learned Single Judge either could have taken cognizance himself or would have required the remaining plaintiffs to file amended title after bringing the legal heirs of the deceased plaintiff on record. It has been contended by the learned counsel for the appellant that in view of the provisions of Order 22 Rule 2 CPC, in case of death of one of several plaintiffs or defendants, the right to sue survives in the remaining parties and the legal heirs.
3. While confronted with the above factual and legal position as stated by the learned counsel for the appellants, the learned counsel for the respondents could not controvert the same. However, it has been stated that the suit may be restored to its original position, however, the directions may be given to the learned Single Judge to conclude the proceedings preferably within a period of three months.
4. The question as to whether after the death of a plaintiff, proceedings would abate primarily depends on the nature of cause of action. Any action might abate on death of a party but cause of action might survive. In the instant case admittedly the suit was filed by three plaintiffs out of which one has died during pendency of the suit, as such the right to sue remains alive, hence the dismissal of the entire suit for non-prosecution of the remaining plaintiffs whose right to sue survived, seems to be illegal and contrary to express provisions of law as referred to hereinabove. Provisions of order XXII C.P.C. dealing with abatement, has to be strictly construed and entire suit cannot be taken to have abated simply because some of the plaintiffs has died whereas the legal representatives have not been brought on record. In the instant case, if the order of learned Single Judge for bringing on record the legal representatives of the deceased plaintiff was not complied with, even then, the Court itself was competent to bring on record the legal representatives of the deceased plaintiff as list of legal heirs was already attached with the plaint in terms of Order VII Rule 26 CPC.
5. In view of hereinabove, we hereby set-aside the impugned orders dated 16.03.2009 and 19.04.2010 and allow the instant appeal with directions to the appellants to file the amended title after bringing the legal heirs of deceased plaintiff No.2 on record, whereafter, both the parties shall proceed with the matter diligently, without seeking any unnecessary adjournments. The learned Single Judge may dispose of the suit after recording the evidence of both the parties, preferably, within a period of six months.
Appeal is allowed in the above terms.
J U D G E
Dated: __.10.2012.