MUHAMMAD SHAM AND Another vs MUHAMMAD MUSTAQEEM AND ANOTHER
The matter concerns a petition for leave to appeal against a Lahore High Court order dismissing a civil revision. The petitioners filed a suit for specific performance of a contract regarding a property sale. During the proceedings, it was discovered that one defendant had died prior to the filing of the suit. The trial court dismissed the suit on the ground of abatement. The petitioners subsequently sought to set aside the abatement, but their application and subsequent appeal were dismissed. The High Court, while acknowledging that Order XXII of the Code of Civil Procedure 1908 was technically inapplicable because the defendant died before the suit commenced, held that the trial court's dismissal order had attained finality as it was not challenged via appeal. The Supreme Court upheld this decision, ruling that because the petitioners failed to appeal the trial court's decree, it became final and could not be reopened in revision proceedings. The Court affirmed that procedural defects regarding deceased parties must be challenged through appropriate appellate channels rather than collateral revision.
- Can a suit dismissed on the ground of abatement be reopened in revision if the original dismissal order was not appealed?
- Does Order XXII of the Code of Civil Procedure 1908 apply to a suit instituted against a person who was already deceased at the time of filing?
- Is a trial court's order dismissing a suit for abatement final if not challenged through an appeal?
- Order XXII Rule 3, Code of Civil Procedure 1908
- Order XXII Rule 9, Code of Civil Procedure 1908
- Order I Rule 10, Code of Civil Procedure 1908
ORDER
1. WAHEEDUDDIN AHMAD, J.-The petitioners entered into an agreement for sale of shop No. 122, Block No. 1, Bhalwal, District Sargodha, with Muhammad Mustaqeem respondent No. 1 on the 6th January 1960. This respondent sold the property in dispute to Khalida Begum respondent No. 2 and Mst.
2. Chiragh Bibi in equal shares on the 11th May 1967. Thereafter, a suit for possession by specific performance of the contract was filed by the petitioners on the 1st September 1967, in which Mst.
3. Chiragh Bibi, was also impleaded as a defendant. On the 16th September 1967, the process-server reported that Mst. Chiragh Bibi had died. On the 7th December 1967, an application was made under Order XXII, rule 3, C. P. C. Praying that Muhammad Umar be impleaded as legal representative of Mst. Chiragh Bibi deceased. On the 26th February 1968, the trial Court dismissed the suit on the ground that it had abated.
4. On the 22nd March 1968, an application was made under Order XXII, rule 9, C. P. C. For setting aside the abatement. This application was dismissed on the 28th June 1968. An appeal was filed against this order which was also dismissed. The matter was then taken to the Lahore High Court in Civil Revision No. 255 of 1969 which was dismissed on the 25th May 1972, by a learned Single Judge of the Lahore High Court. The petitioners seek permission to file an appeal against the said order.
5. Mr. Almas Ali, learned counsel for the petitioners, has con--tended that the High Court has come to the conclusion that Order XXII did not apply in the case as the death of the deceased took place before the filing of the suit. He contended that the High Court has rightly observed that in case a suit is instituted against a dead person, the defect normally can be rectified by taking resort to the provisions of Order I, rule 10, C. P. C. According to the learned counsel, in view of this conclusion of the High Court, the finding of the learned Civil Judge that the suit has abated cannot be sustained in law and the High Court should have permitted the petitioners to implead the legal representative of the deceased under Order I, rule 10, C. P. C. The contention of the learned counsel has not impressed us. Admittedly, no appeal was filed against the order of the Civil Judge dismissing the suit for abatement., The decree of the civil Court has, therefore, become final. The proper course for the petitioners was to file appeal against the order of the Civil Judge dismissing the suit and to request the appellate Court to implead the legal representative of the deceased under Order I, rule 10, C. P. C. As this was not done, the order of the Civil Judge dismissing the suit has become final. It cannot be reopened, in these proceedings. The High Court was perfectly justified in observing that as the decree of the civil Court has become final, it is not within the competence of that Court to interfere with it. The revision petition has rightly been dismissed. There is no force in the petition. The petition is dismissed.