Judgment Sheet

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

C. P. No. S – 1966 of 2010

Before :

Mr. Justice Muhammad Shafi Siddiqui

Petitioners : Abdul Rahman Jiskani and others,

through M/s Lachhmandas D. Rajput and Mukesh Kumar G. Karara Advocates.

Respondents : Misri Khan and others,

through Mr. Soomar Das R. Parmani Advocate.

Date of hearing : 01.10.2018.

J U D G M E N T

MUHAMMAD SHAFI SIDDIQUI, J. : Petitioners namely Abdul Rahman and Luqman both sons of late Muhammad Murad filed a suit for declaration and mandatory injunction. At some stage of the trial, one of the plaintiffs i.e. Abdul Rahman filed an application for transposing his brother Luqman, the other co-plaintiff as defendant as he claimed to have developed interest contrary to plaintiff’s case. By an application dated 26.11.2002, the co-plaintiff Luqman was prayed to be transposed as defendant No.7 and by an order dated 23.12.2002 he was. The suit was decreed on 22.01.2004, whereafter the appeal was preferred by other defendants / respondents namely Misri Khan, Abdul Karim and Muhammad Ali. Appellate Court remanded the case to the trial Court after setting aside the judgment and decree dated 22.01.2004, since the opportunity was not given to the defendants / respondents to record evidence. Prior to this, Luqman, the transposed defendant had already been declared ex parte. While the suit was pending, after remand from the appellate Court, Luqman expired whereafter the legal heirs filed an application for re-transposing the legal heirs of Luqman as co-plaintiffs. The application was contested, however, it was dismissed on 29.05.2010. In Revision Application No.24/2009 the order was impugned which was maintained, whereafter petitioner preferred this petition.

2. I have heard the learned counsel and perused the material available on record.

3. The legal heirs of Luqman have no better defence than what their predecessor had. Luqman was already declared ex parte and the order is as under:

“O R D E R.

8.4.2003.

Whereas the plaintiff No.2, transposed as defendant No.7 and he was served and since 18.3.03, the matter was fixed for filing of his written statement but since then he used to obtain the adjournments on the ground that he has to engage an advocate which were granted and today he submitted an application stated there in that he is a poor man and is not able to engage an advocate what so ever Court may pass the order.

From the contents of application it is clear that the defendant No.7, namely Luqman do not want to file w.s and proceed his case, therefore, he has not filed any written statement though sufficient time was given to him I, therefore order to proceed him ex-parte.”

These legal heirs of Luqman only stepped into the shoes of their predecessor / father Luqman. Luqman kept quiet when an application for his transposition was filed on 26.11.2002 which application was not contested and was allowed on 23.12.2002. In terms of order dated 23.12.2002 plaintiff No.2 / Luqman had developed an interest contrary to plaintiff No.1’s interest. Thus, there was no other occasion than to transpose him as defendant No.7. Applicant No.2 Luqman never challenged the order of his transposition or the reasoning assigned in affidavit and order. Although, the suit was decreed ex parte as far as Luqman is concerned, the other defendants filed an appeal challenging the main judgment and decree only which was set aside. The legal heirs of Luqman, thus, cannot plead case other than what has already been conceded by their predecessor. Luqman never challenged ex parte orders. Since he neither objected to his transposition nor contested the application for his transposition as defendant No.7, his defence is not difficult to ascertain.

4. In terms of Order XXII Rule 4 sub-rule (4) CPC it is not necessary to substitute the legal representatives of any such defendant who has failed to file a written statement or has failed to appear and to contest the suit at the hearing; and the judgment in such cases may be pronounced against the said respondents notwithstanding his death, and such judgment shall have the same force and effect as if it had been pronounced before his death took place. Surprisingly, the same counsel is appearing for both the alleged co-plaintiffs.

5. The order of transposition though apparently was not appealable but a Revision was preferred and the legal heirs of Luqman remained unsuccessful. As against the order of the Revisional Court, this petition has been preferred by them which otherwise is not maintainable since the revisional order is not open to challenge on any legal ground. Reliance is placed in the case of Muhammad Khan and 6 others V/S Mst. Ghulam Fatima and 12 others, 1991 SCMR 970. Since it is a short leave refusing order, the judgment is reproduced as under:

“Leave to appear is sought against the order of the High Court dated 29.07.1990.

2. The facts, in brief, are that the respondents 1 to 7 filed a suit for declaration and possession against the petitioners and respondents Nos.8 to 11. The petitioners moved an application under Order VI, Rule 17 CPC seeking permission to amend the written statement. The trial Court vide order dated 29.03.1989 disallowed the application for amendment. The petitioners’ Revision Petition against the said order was dismissed by the District Judge on 17.1.1990. The petitioners then challenged the two orders in a Constitution Petition in the High Court. The petition was dismissed. The learned High Court observed that a revisional order arising out of civil litigation could not be challenged in the Writ Petition and relied upon Ghulam Hussain v. Malik Shahbaz Khan 1985 SCMR 1925; Muhammad Bakhsh v. Ghulam Hussain 1989 SCMR 443 and Muhammad Zahoor v. Lal Muhammad 1988 SCMR 322.

3. The order of the High Court in the circumstances is not open to challenge on any legal ground. The order was legal and proper. No point of law is involved in this petition. The petition is dismissed and leave to appeal is refused.”

6.       In view of above facts and circumstances, there is no substance in this petition and the same is dismissed.

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J U D G E

N.M.