DILAWAR ALI KHAN Versus ZOHRA JAVAID

Initially plaintiff has filed this suit on 28th September, 1986 for recovery of Rs.4,10,000 as well as for mesne profit, against the defendants. On 18‑2‑1990, defendant No. l was, declared ex parte and the Nazir was appointed guardian ad litem of two minor defendants, namely, Masooma and Ali Kachelo, who is now being represented by Mr. Muhammad Saleem, Advocate. On 14‑3‑1993, the plaintiff was allowed amendment in the plaint and the plaintiff No.2, Mrs. Tahira Dilawar was also allowed to be joined as plaintiff No.2 subject to the objection of the defendants Nos.2 and 3. Accordingly, amended plaint was filed on 2‑5‑1993. Present controversy revolves against the present defendants raising out of last amended plaint.

2. The case of the plaintiffs is that plaintiff No.l is a businessman and is running a business of car rental under the name and style of 'Real Motors' and that the plaintiff No.2 is the wife of plaintiff No. 1. That the defendants are legal heirs of Javaid Ahmed Kachelo, who on or about 11‑2‑1985 hired a car make Toyota Corolla, fully loaded valuing Rs.1,35,000 on rental from the plaintiff No. 1. It was agreed that the rental of the car was Rs.4,000 per day. On 8‑6‑1985, deceased Javaid Ahmed Kachelo issued a cheque of Rs.45,000 towards the rental value which was dishonoured. Again, on the insistence of plaintiff No. l deceased Javaid Ahmed Kachelo issued another cheque for the same amount which was honoured and adjusted against the outstanding car rental. .

3. It ‑is further claimed by the plaintiff that as a result of negligence and reckless driving by the deceased Javaid A. Kachelo on 23‑12‑1985, an accident was caused which damaged the car extensively. That on the same day at about 1‑30 p.m. the said deceased left the car with M/s. Glaxy Auto Works for repair but did not inform M/s. Glaxy Auto Works that the car belongs to a rental company.

4. That the said Javaid died in the month of January, 1986 leaving the abovesaid car with Messrs Glaxy Auto Works, who came to know in the month of February, 1986 that the deceased has died and, therefore, they approached plaintiff, in the month of February, 1986. Plaintiffs have filed a Car Hire Agreement, Exh.P/l, and have based their case on clause 13 of the said agreement. In view of the above background, the plaintiff has prayed for the following relief:

"(i) that the defendants do pay to the plaintiff a sum of Rs.1,35,000 towards damages equivalent to the valuation of the said car or deliver back the car in its original condition and a sum of Rs.2,75,000 being the rental of the car up to the date of filing of the suit after adjustment of Rs.45,000 paid by the deceased to the plaintiff No. l in all a sum of Rs.4,10,000 with mark‑up at bank rate from the date of institution of the suit till realisation thereof.

(ii) The defendants do pay to the plaintiffs rental. of the car at the rate of Rs.400 per day from the date of institution of the suit till realisation thereof

(iii) Costs of the suit.

(iv) Any other/better/further relief/reliefs that: this Hon'ble Court may deem fit and proper in the circumstances of the case."

5. The minor defendants have filed their joint written statement, raising several preliminary legal objections. They have denied major portion of the plaint for want of knowledge. They have also alleged that the suit is without cause of action as far as minor defendants are concerned and have prayed for dismissal of the suit. The defendant No. l who is widow of deceased as well as mother of minor defendants was declared ex parte.

6. On 22‑12‑1991, following consent issues were adopted by this Court:‑‑

(a) Whether the deceased Javed Ahmed Kachelo hired a car on the terms and conditions specified in the Car Hire Agreement?

(b) Whether deceased Javed Ahmed Kachelo owned Rs.4,10,000 as claimed, to the plaintiff?

(c) Whether according to hire agreement, defendants are jointly and/or severally liable to pay the amount of, claim. If so, to what extent?

(d) What should the decree be?

7. In support of their case, plaintiffs have examined plaintiff No. 1, as Exh. 5, P.W.2 Noor Ali Khan as Exh. 6 and P.W. 3 Syed Rehman Rahim as Exh.

7. No evidence was led by the defendants.

8. At the very outset, Mr. Muhammad Saleem, learned counsel for the minor defendants, has raised a legal objection on the maintainability of this suit. According to Mr. Muhammad Saleem, since the car in question was admittedly in the name of Mst. Tahira Dilawar, who was impleaded as plaintiff No.2 vide this Court order dated 25‑4‑1993 after her claim became time‑barred. He has referred to section 22 of the Limitation Act, 1908, which reads as follows:‑‑

"22. Effect of substitutint2 or adding new plaintiff or defendant. ‑‑‑(1) Where, after the institution of suit, a new plaintiff or defendant is substituted or added, the suit shall, as regards him be deemed to have been instituted when he was so made a party.

(2) Nothing in subsection (1) shall apply to a case where a party is added or substituted owing to an assignment or devolution of any interest during the pendency of suit or where a plaintiff is made a defendant or a defendant is made a plaintiff."

9. In support of his case, Mr. Muhammad Saleem, Advocate for minor defendants, has referred to the cases of Hayat and others v. Amir (PLD 1982 SC 167), Mehtab Beg and 2 others v. Ghulam: Muhammad and others (PLD 1975 Lahore 580) and Muhammad Ali H. Alla Rakhya v. Piarali H. Ladha Bhai and another (PLD 1968 Karachi 345). He has also referred to the case of Chand Oil Mills v. Haji Muhammad Zakaria (PLD 1958 Karachi 510), which was overruled by the Hon'ble Supreme Court in the case of Hayat and others.

10. The question before the Hon'ble Supreme Court in the case of Hayat and others (supra) was whether a new defendant is deemed to have been made a party to the suit on the date when an application to implead him is filed or on the date when such an application is finally allowed by the Original or the Appellate Court. Section 22(1) of the Limitation Act was also interpreted in the following words:‑‑

"7. Now according to this section, when a new person is substituted or added as a party in a suit already pending, then the suit as regards him shall be deemed to have been instituted only from the point of time when he is so made a party. In other words for purposes of determining whether the suit qua him is barred by limitation, the time shall be computed as if the suit had been filed by him (if he is a plaintiff), or against him (if he is a defendant), on the date of which he was 'so made a party'. The word ' so' used her evidently refers to .his being made a party by 'substitution' in place of another party or by 'addition' as a new party."

11. The rule laid down by a Division Bench of this Court in the case of Muhammad Ali H. Allah Rakhya (supra) is of no help to the defendants as in that suit one of the defendants was transposed as co‑plaintiff and, therefore, it was held that section 22 of the Limitation Act is not applicable as it is what envisaged in subsection (2) to section 22 of the Limitation Act. In the case of Mehtab Beg and 2 others, a learned Single Judge of Lahore High Court held that when parties are added by the Court after the institution of a suit, section 22 of the Limitation Act provides "that the date when they are added is deemed to be date of institution of the suit so far as they are concerned for purpose of limitation and the rights which they may have acquired under the Limitation Act are, therefore, sufficiently safeguarded.

12. The cause of action in the original plaint as well as in the last amended plaint filed after impleading Mst. Tahira Dilawar as plaintiff No.2 disclosed that it was firstly accrued on 11‑2-1985 when deceased Javed A. Kachelo, hired the said car and again in February, 1986 when the plaintiffs came to know about the death of the deceased. Admittedly the car was in the name of plaintiff No.2, who for the first time on 18‑3‑1993 filed an application under Order, 1, Rule 10, C.P.C. praying that she be impleaded as co‑plaintiff since the car in question was purchased by the plaintiff No. 1, Benami, in her name for doing business of renting out cars. This application was granted by this Court order dated 25‑4‑1993. Even if for reckoning the period of limitation the date of application is accepted, which is 18‑3‑1993, it appears that this application was filed seven years after the cause of action was lastly accrued in the month of February, 1986. In background of the above narrated facts, I am of the view that as far as plaintiff No.2 is concerned, her claim is barred by the Limitation Act and she is not entitled to any relief.

13. P.W. 1 Dilawar Ali Khan, who is plaintiff No. 1, was examined as Exh.

5. In his entire examination‑in‑chief he has not said a single word about the ownership of the car in question nor in his evidence he has anywhere stated that the plaintiff No. l was Benamidar owner or that the plaintiff No.2 was only an ostensible owner. He was examined and cross‑examined on 13‑1‑1992 before the. Commissioner. He has not filed the ownership documents of the car in question.

14. P.W. 2, namely, Noor Ali Khan, who is son of ‑plaintiffs, supported the evidence of plaintiff No. l who has added that the said car was in the name of his mother i.e. plaintiff No.2 and that it was purchased from the funds, provided by his father. It is interesting to note that this witness has also not produced any document to show that the car in question belongs to the plaintiff No.2. Even in the legal notice dated 28‑5‑1986, addressed to defendant No. i and her deceased husband (Exhs. P/5 & P/6), nowhere the plaintiff has said that the plaintiff No.2 was ostensible owner. After admission of P.W.2 that the car was in the name of plaintiff No.2 and in absence of any ownership documents burden was upon the plaintiff to conclusively prove that it was a Benami transaction and the plaintiff No. l was the Benamidar owner. Evidence of plaintiff No. l is absolutely silent on this question. However, there is another document brought by the plaintiff which is a Car Hire Contract Exh.P/1 and (Exh.6/1) which has not been denied by the defendants. In my view, this document gives a right as well as cause of action to the plaintiff No. l to file a claim but again deceased defendant.

15. The most crucial question, however, is whether any amount is payable by the defendants as the legal representatives of the deceased Javed Ahmed Kachelo. Nowhere in the evidence of the plaintiff No. l namely. Dilawar Ali Khan it was stated that the deceased Javed Kachelo has left any movable or immovable properties covering the amount of their claim or that the defendants have acquired certain movable and immovable properties from their deceased predecessor. Evidence of the remaining plaintiff's witnesses is also silent on this point. No doubt, in para. 2 of the plaint an attempt was made to show that deceased had left some estate but this has been denied by the defendants. The plaintiff was required to prove through evidence that some part of estate/properties of the deceased came into the hands of the defendants. The defendant No.l is ex parte while minor defendants are being represented by Nazir of this Court who was appointed guardian ad litem for these two minor defendants. In these circumstances, it is the duty of the Court to consider the interest of the minors as well as absent defendants. With this view, I have scrutinised the plaintiff's evidence in detail. (For any reference, see the case of F. Kanematsu & Co. Ltd. v. S. Nazir Hussain Puri (PLD 1957 Karachi 832). In absence of any evidence to this effect, I am of the view that the suit is liable to be dismissed.

16. The pleadings have never been treated as part of evidence. An attempt p was made by Mr. Muhammad Saleem, Advocate for the minor defendants to rely upon their written statements. It was argued by Mr. Mushtaque Memon that a statement not verified on oath could not be treated as evidence and that it could not be accepted. He has rightly referred to the cases of Muhammad Yousuf Ishaqui v. Abdul Majid Khan and 5 others (1984 CLC 243), Mst. Khair‑ul‑Nisa and 6 others v. Malik Muhammad Ishaque and 2 others (PLD 1972 SC 25), Muhammad Nawaz v. hand Rai and 2 others (1981 CLC 867) and Nazir Ahmed Khan and 2 others v. Muhammad Ashraf Khan and 3 others (PLD 1975 Karachi 594 . In the last reported case, it was held by a Division Bench of this Court that "as a rule pleadings are not evidence by themselves". In the case of Muhammad Nawaz (supra) another Division Bench of this Court has held that "any statement recorded by Judge during course of inspection is also of no evidentiary value unless the person whose statement was recorded was subjected to cross-examination or the opposite‑party had opportunity to do so". I am of humble view that this principle is equally applicable on the question of admitting plaint as a piece of evidence. In the instant case, the plaintiffs were also required to comply with the mandatory requirements of Rule 5 and Rule 9(2) to Order VII; C.P.C. in their plaint.

17. My above view is supported by a judgment of this Court in the case of Messrs Industrial Development Bank of Pakistan v. Mst. Roqaiya Begum and others (1986 CLC 1592). In this reported case, one of the defendants died and his legal heirs were brought on record. Accordingly the issues settled earlier were re‑framed and one of the issue was:‑‑

"What amount, if any, is payable by the defendants singly or jointly to the plaintiff?"

It was contended by the defendants in the reported case that the legal heirs cannot be held liable to the decretal amount as they have not inherited any property from the deceased defendant. It was observed by a learned Judge of this Court Mr. Saleem Akhtar, J. (as his lordship then was) that except this assertion no further arguments were advanced to illuminate this aspect of the case and that no evidence was on record to establish that the defendants have inherited any property from their predecessor defendant. The learned Judge after referring to section 2(11), C.P.C. and the cases reported as Muhammad Iqbal and 2 others v. Ghulam Ali Shah (PLD 1975 Lahore 1205), Dr. Arshad Mahmood v. Dr. Mumtaz Hussain (PLD 1974 Lahore 312), Jai Kishen Das v. Karimuddin and another (AIR 1939 Lahore 321), Shabir Hussain v. Farzand Hussain (AIR 1938 PC 80) and several other cases from the Indian Jurisdiction, came to the following conclusion:

"The law permits that if a person against whom claim is made dies before institution of the suit then for such claim suit can be filed against those who are in possession of the estate or property of the deceased or represent it ---------- From the definition it is clear that unless it is established that the person sought to be joined or sued as legal representative of a deceased person is in possession or has inherited the property of the deceased he cannot be termed as legal representative of the deceased. This interpretation finds support from the subsequent provisions of the Code of Civil Procedure, namely, sections 50, 52, 53 and 146 ----------Therefore, a person as legal representative can be charged with liability only if the property of the deceased has, come in his hand and he has not unduly disposed of or applied such property. "

18. The suit in the reported case was dismissed with no order as cost by the learned Single Judge of this Court with the following observation:

"The law is well‑settled that if the deceased has not left any estate and nothing has come into the hand of any heir or other person then he cannot be termed a 'legal representative' and cannot be sued as such for a claim against the deceased debtor nor a decree passed against a deceased judgment‑debtor be executed against him."

19. In the present suit the entire evidence of the plaintiff is silent as to what estate/properties the deceased had left or what estate the defendants have acquired from their deceased husband or father. Result of the above discussion is that this suit is dismissed with no order as to cost.

A.A./D‑7/K Suit dismissed.