MUHAMMAD ZAMAN AND Another vs SULTAN AHMAD
This petition for leave to appeal arose from a civil suit where the respondent claimed a right of way over certain land parcels. The appellate court decreed the suit in the respondent's favor. During the pendency of the Regular Second Appeal filed by the defendants, one of the co-defendants died, and his legal representatives were not impleaded. The High Court consequently dismissed the appeal as having abated in toto, on the ground that the deceased was a necessary party without whom no effective decree could be passed. The petitioners, who were the remaining co-defendants, contended that because one petitioner exclusively owned one of the land parcels and the other petitioner jointly owned the second parcel with the deceased, the appeal could still be maintained to the extent of their respective interests. The Supreme Court of Pakistan granted leave to appeal to consider whether the non-impleadment of the legal representatives of a deceased co-owner results in total abatement of the appeal when the interests of the surviving co-defendants are distinct or separable.
- Does the failure to implead the legal representatives of a deceased co-defendant result in the total abatement of an appeal if the surviving co-defendants hold distinct or separable interests in the suit property?
- Can surviving co-defendants maintain a regular second appeal to the extent of their own proprietary interests despite the death and non-substitution of a joint owner co-defendant?
ORDER
M. S. H. QURESHI, J.-A suit had been brought by Sultan Ahmad against Sher Zaman, his brother Muhammad Zaman and Muhammad Khan, claiming the right of way in Khasra Noss. 684 and 685 of village Sohga Dutt, Tehsil Gujar Khan, which was decreed in his favour by the appellate Court Sher Zaman and other defendants moved R. S. A. No. 56 of 1965. During the pendency of the Regular Second Appeal, Sher Zaman died on 1-11-1971. His L. Rs were not impleaded. The learned Judge of High Court held that Sher Zaman was a necessary party to the suit in whose absence no effective decree could be passed and as such dismissed the appeal as having abated in toto.
Aggrieved, Muhammad Zaman and Muhammad Khan have moved this petition for leave to appeal.
2. Learned counsel submits that the admitted position, as duly noted by the learned Judge of the High Court, was that Muhammad Khan petitioner exclusively owned Khasra No. 684 while the other Khasra No. 685 bad been jointly owned by Sher Zaman deceased and Muhammad Zama petitioner. He, therefore, contends that notwithstanding the non-impleadment of the L. Rs. Of Sher Zaman, the present petitioners could maintai the appeal in so far as it involved their interest. For this he relied on Faza Dad v. Nek Alam PLD 1957 Lab. 430
3. 'The point needs consideration. We accordingly grant leave to appeal. Security Rs. 2,000. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.