KHAN MUHAMMAD KHAN and 19 others vs SAIF ALI and 22 others

' SARDAR SAID MUHAMMAD KHAN, C.J.---This appeal has been directed against the judgment of the High Court, dated 29-9-1998, where by the writ petition filed by the appellants, herein, was dismissed.

2. The brief facts of the case are that the appellants, herein, filed a suit seeking the declaration for adverse possession over the suit land measuring 25 Kanals and 14 Marlas situate in Rangla, Tehsil Bagh. Afterwards non-appellants 'also filed a suit for possession for the same suit land. However, the Trig Court did not consolidate the sub and proceed with the trial separately. 0 22-9-1985 and 5-11-1988, Saif Ali respondent, filed application that Muhammad Ashraf, Feroze Khan and Ghani Ahmad defendants, had died before the institution of the suit but they were impleade as a party.

He prayed for the dismissal of the suit as being improperly constituted. The objections were filed by the appellants to the said applications. However, the Trial Court dismissed the suit and appeals to the Additional District Judge Bagh and the High Court also failed. The High Court has observed that the suit against dead persons was a nullity and, thus, their legal representatives could not be impleaded after such a long time.

3. Sh. Abdul Aziz, the learned counsel for the appellants, has argued that the High Court has treated the application under Order XXII, C.P.C., for bringing legal representatives on the record whereas the application filed by the appellants was under Order 1, Rule 10 for impleading the legal representatives of the aforesaid defendants because they could not be arrayed in the line of the defendants due to bona fide mistake. The learned counsel has argued that there is no limitation provided for impleading a person as a party under Order 1, Rule 10 and, thus, the Courts below have committed an error in dismissing the suit filed by the appellants.

4. In reply, Raja Muhammad Yunus Tahir, the learned counsel for the respondents, has submitted that initially the application was made by the appellants for bringing the legal representatives of the deceased defendants and when an application was filed that the concerned defendants had died before the institution of the suit and the same should be dismissed, they changed their stand that the legal representatives of the deceased-defendants may be brought on the record under Order 1, Rule 10 of Civil Procedure Code. The learned counsel has argued that the appellants- plaintiffs have been negligent in doing the needful within the prescribed period of limitation. Thus, the learned counsel has submitted that this is a case in which discretion to implead the legal representatives of the deceased defendants could not be exercised in favour of the plaintiffs- appellants at a belated stage because that would be violative of law of limitation.

5. We have given due consideration to the arguments raised at Bar. The High Court has dismissed the suit filed by the appellants, herein, on the ground that they had instituted the suit in which three of the defendants were dead before the institution of the suit and that they failed to file application for bringing their legal representatives on the record within 90 days. It may be observed here that it is not an application under Rule 4 of Order 22 of Civil Procedure Code which deals with the bringing legal representatives of a deceased defendant on the record who dies during the pendency of the suit; in the instant case it is admitted position of both the opposite parties that said defendants had died before the institution of the suit. Therefore, the case would be governed by Rule 10 of Order 1 and not by Rule 4 of Order 22 of Civil Procedure Code. The learned counsel for the respondents could not justify the finding of the High Court that as the application for impleading legal heirs was not submitted within 90 days, they could not be brought on record; no law has been cited in support of the proposition that there was any limitation prescribed for bringing legal representatives of a defendant who had died before the institution of the suit. It may be stated that if there are more than one defendants out of which some were dead before the institution of the suit, their legal representatives can be brought on record in exercise of provision contained in Order 10, Rule 1 of the Civil Procedure Code subject to the point of limitation; the limitation against such heirs would start running from the date when they were impleaded. A reference may be made to the following authorities.

' In case reported as Mst. Gulab Jan v. Umar Din (1987 CLC 1698), it was held that two defendants who were dead before the institution of the suit their legal representatives should have been brought on record by the Trial Court under the provision of Order 1, Rule 10(2) of, C.P.C., instead of dismissing the suit against them. Thus, the order of the Trial Court was set aside and the Court was directed to proceed with the trial in the light of observation made by the Court.

' In case reported as Roop Chand v. Sardar Khan and others (AIR 1928 Lah.359), it was held that the provisions contained in Rule 4, Order 22 are applicable in suit or appeal in which defendants or respondents dies during the pendency of the suit. Thus, if the suit is brought against number of defendants one of whom happened to have died before the suit was instituted,. The Court should not dismiss the suit against the other defendants but should strike of the name of the former under Order 1, Rule 10(2) of C . P . C .

' In case reported as Makram Ali Molla and others v. Abdul Hamid Molla and others (AIR 1927 Ca1.880), it was held that if a suit is instituted in the name of a sole defendant who was dead at the time of the institution of the suit, the same cannot be amended but where a co-mortgagee brings a suit on his mortgage and adds his co-mortgagee who is dead, either as pro forma-defendant or co-plaintiff, the suit can be amended under Order 1, Rule 10 by adding the legal representatives of co-mortgagee as co-plaintiffs.

6. It may be observed that the question as to whether the suit for adverse possession filed by the appellants, herein, would be time-barred against the legal representatives does not require resolution at this stage. The respondents-defendants would be at liberty to raise the question of limitation after the impleadment of the legal heirs of the said defendants.

In the light of what has been stated above, we accept the appeal, set aside the findings of the Courts below whereby the suit filed by the appellants, herein, was dismissed and direct the plaintiffs-appellants to delete the names of the said defendants who had died before the institution of the suit and in their place implead their legal representatives. In the circumstances of the case we make no order as to costs.