SHUJAWAL Versus SHERALI SUTARIA

ORDER

1. AJMAL MIAN, J.‑‑ This is a High Court Appeal against the order dated 30‑3‑1987 passed by a learned Single Judge of this Court in suit No.573/81 allowing the application of the intervenor under Order I Rule 10 C.P.C. on the ground that they were related to the deceased defendant No.l. The appellants being aggrieved by the above order have filed the present appeal.

2. The brief facts leading to the filing of the above appeals are that the present respondent No.l filed the aforesaid suit against Miss Gulsher R. Kharas who was defendant No.l in the suit, and the present appellant who was defendant No.2 in the suit for specific performance of a contract for sale of immovable property. During the pendency of the above suit defendant No. 1 expired. Thereupon C.M.A 4233/86 was filed under Order I, Rule 10, C.P.C. whereby the intervenor sought impleading of himself and two other persons as the legal heirs of the deceased whereas the second application was filed under order XXII Rule 2 C.P.C whereby the plaintiff sought impleading of two persons namely Mrs. Rusi Minocherji and Mrs. Ava Kharas. The learned Single Judge has allowed the above applications. The appellant being, aggrieved by the above order has filed the present appeal.

3. In support of the above appeal Mr. Iqbal Kazi the learned counsel for the appellant has vehemently submitted that since in the counter‑affidavit filed by the appellant it was denied that the deceased/ defendant had left any legal heir it was incumbent upon the learned Single Judge to have held enquiry in terms of Order XXII Rule 5 C . P . C . particularly in view of the fact that there was a statement of deceased /defendant alongwith the written statement that she had no legal heirs. However, from the order under appeal we find that no rich arguments were advanced though the objection was taken in the counter‑affidavit. Be that as it may, in our view, it will be just and proper to observe that it will still be open to the appellant to question the status of the impleaded persons as the legal heirs of the deceased defendant at a subsequent stage by filing appropriate application.

4. With the above observation the appeal is dismissed in limine.

5. H.B.T./H‑74/K ‑‑‑‑‑ Appeal dismissed.