Mst. MURAD BEGUM AND Others vs MUHAMMAD RAFIQ AND OTHER
This matter arises from a petition for special leave to appeal against the order of the High Court, which dismissed the petitioners' appeal on the ground that it had abated in its entirety for want of bringing on record the legal representatives of certain deceased parties. The core legal question is whether the non-joinder or failure to bring on record the legal representatives of certain deceased persons—who were allegedly mere cultivators with no independent title and had been given up in prior proceedings—resulted in the abatement of the entire appeal. The Supreme Court held that the High Court erred in holding that the whole appeal fell through on account of the said abatement, given that the contesting parties and principal representatives were on the record and the deceased individuals allegedly held no independent rights. Consequently, the Court granted leave to appeal to examine whether the appeal could proceed without those representatives, while directing the petitioners to furnish security for costs and maintaining the stay of execution.
- Whether an appeal abates in its entirety due to the failure to bring on record the legal representatives of parties who died during the pendency of the suit?
- Do cultivators possessing no independent right to retain property constitute necessary parties whose absence causes an appeal to fail?
ORDER
1. S. A. RAHMAN, J.-In this case the High Court, has dismissed the appeal of the petitioners on the ground that it was improperly constituted for want of some necessary parties. Those necessary parties were said to be the legal representatives of certain parties who had died and whose representatives were not brought on the record within the time allowed by law. The petitioners seek special leave to appeal from the order of the High Court.
2. Mr. Ghias Muhammad on behalf of the petitioners has pointed out that out of 9 persons, whose representatives are not said to be on the record, three had, according to the finding of the High Court itself, died during the pendency of the suit in the original Court, namely, Buland, Dhannu Mal and Muhammad Musa. The petitioners had not brought the legal representatives of Moti, Abdul Wahid and Abdullah on record, on the plea that they were not necessary parties. It is stated by Mr. Ghias Muhammad that these persons were merely cultivators under Shaikh Mehr Din, deceased, who had an agreement to sell in his favtour, given by Qazi Mehr Din, deceased plaintiff, and the predecessor-in-interest of the respondents. They had no independent right to retain the property.
3. Similarly, he argues that Palya, Ali Muhammad and Abdur Rahman were also mere cultivators under Shaikh Mehr Din and could not set up an independent title. They stood or fell with Shaikh Mehr Din himself. It is also of some significance to note that tile deceased Shaikh Mehr Din himself had given up Moti, Ali Mohammad Abdur Rahman and Abdullah as parties, in the appeal which he filed in this Court at one stage and which resulted in case being remanded to the High Court for re- decision of the first appeal. He had also not impleaded Palya in the appeal in this Court. The legal representatives of the contesting defendants, namely, Shaikh Mehr Din, Karam Elahi and Mohammad Din, and of Qazi Mehr Din plaintiff are all on the file according to learned counsel. In the circumstances it is contended that tile order of the High Court holding that owing to abatement for want of representatives of the deceased parties qua them, the whole appeal fell through, was erroneous.
4. Leave to appeal is granted to consider this question. The petitioners will furnish security for costs in the sum of Rs. 2,000 before the appeal is heard. The stay of execution of me decree will continue meanwhile, on the same terms as those mentioned in the ad interim order.