MALI And Others vs MUHAMMAD KHAN
The petitioners filed a suit for pre-emption, which was initially rejected by the trial court due to a failure to make up a deficiency in court fees. The District Judge subsequently set aside this rejection and remanded the suit for disposal. The respondent, Muhammad Khan, appealed this remand order to the High Court, which restored the trial court's order of rejection. During the pendency of the High Court appeal, the respondent died, and his legal representatives were brought on record. The petitioners sought leave to appeal against the High Court's order but filed the petition naming only the deceased respondent, Muhammad Khan, rather than his legal representatives. A preliminary objection was raised regarding the competency of the petition due to this defect. The Supreme Court observed that the petitioners had no explanation for filing the petition against a deceased party despite the substitution of legal representatives in the lower court. Consequently, the petition was dismissed as incompetent.
- Is a petition for leave to appeal filed against a deceased respondent, without impleading the legal representatives who were substituted in the lower court, competent?
- Does the failure to implead legal representatives of a deceased party in a petition for leave to appeal render the petition liable to dismissal?
SAAD SAOOD JAN, J--The petitioners filed a suit for pre-emption. Their plaint was rejected for the reason that despite opportunities being given to them they had failed to make up deficiency in the court-fee. They preferred an appeal before the District Judge. The learned District Judge accepted the appeal, setaside the order of rejection of plaint and remanded the suit to the trial Court for disposal in accordance with law. The respondent, Muhammad Khan, filed an appeal before the High Court against the order of remand. During the pendency of the appeal he died. His legal representatives were duly brought on the record. By an order, dated 4-5-1981 a learned Single Judge in the High Court accepted the appeal and restored the order of the trial Court. The petitioners now seek leave to appeal from the order of the learned Single Judge.
2. On behalf of the legal representatives of Muhammad Khan a, preliminary objection has been raised to the competency of this petition. It is stated that this petition has been filed against Muhammad Khan alone without impleading them even though he was duly substituted by them in the High Court. The learned counsel appearing for the petitioner has no explanation whatsoever for filing this petition against a dead man. The petition is accordingly dismissed.