IN THE HIGH COURT OF SINDH, KARACHI

H.C.A. No.05 of 2025

[Mukhtar Ahmed Chauhan v. Zulfiqar & others]

PRESENT:

Mr. Justice Arshad Hussain Khan

Mr. Justice Amjad Ali Sahito

Appellant : Through Ms. Rizwana Ismail, Advocate.

Respondents No.1-3 : Through M/s. Asim Iqbal and Farmanullah

Khan, Advocates.

Respondent No.4 : Through Ms. Bushra Salahuddin, Advocate.

Date of hearing : 27.08.2026

Date of Decision : 27.08.2026.

O R D E R

ARSHAD HUSSAIN KHAN, J. Through this High Court Appeal filed under Section 15 of the Ordinance X of 1980 read with Section 3 of the Law Reforms Ordinance, 1972, the Appellant has assailed the order dated 10.12.2024 passed by the learned Single Judge of this Court in J.M. No. 33 of 2023 arising out of Civil Suit No. 1564 of 2022. By virtue of the impugned order, the learned Single Judge allowed the application filed by Respondent No.3 under Section 12(2) CPC and, consequently, set aside the compromise order dated 06.11.2023 as well as the consent decree dated 14.11.2023, upon recording a finding that the same had been obtained through fraud and misrepresentation.

2. The dispute pertains to commercial property bearing Plot No.27-C, Bukhari Commercial Lane-15, Phase-VI, DHA, Karachi, measuring 200 square yards (the “subject property”). The Appellant, who was the Plaintiff in Civil Suit No.1564 of 2022, asserted title over the subject property on the basis of a series of antecedent transactions and court proceedings. Respondent No.3, on the other hand, claims to be the lawful owner in possession thereof, having purchased the subject property from Respondent No.2 for a valuable consideration of Rs.53,200,000/-, whereafter the property was transferred in his name in the official record of DHA. The Appellant instituted Civil Suit No.1564 of 2022, which culminated in a consent decree dated 14.11.2023 on the basis of a compromise purportedly entered into by Respondent No.1 as attorney for Respondent No.3. Respondent No.3 challenged the decree under Section 12(2) CPC, asserting that he was the lawful owner of the property, had neither appointed Respondent No.1 as his attorney nor been served in the suit, and that the decree had been obtained through fraud and misrepresentation. The learned Single Judge accepted his plea and, vide order dated 10.12.2024, set aside the compromise order and consent decree, giving rise to the instant appeal.

3. Upon notice of the present appeal, Respondent No.3 entered appearance through his counsel. On 01.04.2026, learned counsel for the Respondent filed a statement along with certain documents, raising a preliminary objection as to the maintainability of the appeal on the ground that the Appellant, Mukhtar Ahmed Chauhan, had passed away on 10.11.2022, much prior to the institution of the present appeal in 2025. It was contended that despite the Appellant’s death, the appeal was instituted and pursued through an attorney on the basis of a Special Power of Attorney executed in 2022, which had ceased to have effect upon the death of the principal. It was further alleged that the factum of the Appellant’s death had been concealed from this Court while the purported attorney continued to proceed with the matter. In response, a reply was filed wherein the factum of the Appellant’s death was not disputed; however, it was maintained that the appeal could not be dismissed on that ground. Objections to the said reply were thereafter filed by the Respondent. Learned counsel for Respondent No.4 also filed certain documents along with an application for exemption, which are taken on record subject to just exception, copies whereof have been supplied to learned counsel appearing on behalf of the Appellant.

4. Learned counsel for Respondent No.3, while reiterating the contents of his statement and the objections filed in response to the Appellant’s reply, contended that the Appellant had admittedly passed away prior to the institution of the present appeal; therefore, the appeal subsequently filed in his name was a nullity ab initio. He submitted that the Special Power of Attorney relied upon for instituting and pursuing the appeal stood terminated upon the death of the Appellant, leaving the purported attorney with no lawful authority to act on his behalf. It was further argued that the factum of the Appellant’s death was concealed from this Court and surfaced only when Respondent No.3 produced the death certificate and other supporting documents. Learned counsel further contended that the plea regarding survival of the right to sue could not cure this fundamental defect, as substitution of legal representatives under Order XXII CPC applies where a party dies during the pendency of validly instituted proceedings, whereas, in the present case, the Appellant had died before the appeal was instituted. Thus, according to him, no valid lis ever came into existence and the defect was substantive and jurisdictional rather than a mere procedural irregularity. He also pointed out that no application for bringing the legal representatives on record was filed within the prescribed period under Order XXII Rule 3 CPC read with Article 176 of the Limitation Act, 1908. He, therefore, prayed that the appeal be dismissed as not maintainable. In support of his contentions he has relied upon the case of Muhammad Yar (deceased) through L.Rs. and others v. Muhammad Amin (deceased) through L.Rs. and others [2013 SCMR 464], Mst. Nasim Akhtar v. Abdul Rashid Khan and 2 others [2009 SCMR 12], Hafiz Brothers (Pvt) Ltd and others v. Messrs Pakistan Industrial Credit and Investment Corporation Ltd., [2001 SCMR 1], Mst. Dani and 5 others v. Deputy Settlement Commissioner (Lands), Vehari and others [1990 SCMR 553], Ziaul Haq malik and others v. Pakistan through Secretary, Establishment Division & others [1997 SCMR 576], Messrs Muhammad Bux Abro & co. v. Messers Askari Bank Ltd., Ghotki Brach [unreported judgment dated 05.12.2023 in Ist Civil appeal No.D-20 of 2019], Mohyuddin Mohammad Khan through General Attorney v Chief Settlement Commissioner / Member (Judicial-V), Board of Revenue Punjab, Lahore and 10 others [PLD 2021 Lahore 130], Malik Bashir Ahmad Khan and another v. Qasim Ali and 12 others [PLD 2003 Lahore 615], Muhammad Shafa v. Provincial Government through Chief Secretary, Gilgit-Baltistan, Gilgit and 7 others [2020 CLC Note 44] and Muhammad Ali Zubair v. Sabira Khatoon and another [2017 YLR 138].

5. Conversely, learned counsel for the Appellant opposed the preliminary objection and contended that the death of the Appellant prior to the institution of the appeal was merely a curable procedural defect and did not render the appeal non-maintainable. She submitted that the right to sue survives and, an appeal being a continuation of the original proceedings, the matter ought to be decided on merits rather than defeated on a technicality. She further maintained that the attorney, who had been duly authorized and had represented the Appellant in the underlying proceedings, was competent to institute the appeal and that any defect in representation could subsequently be cured by bringing the legal heirs of the deceased Appellant on record. She accordingly undertook to file an appropriate application for their impleadment, if so required, and prayed that the preliminary objection be rejected and the appeal be decided on merits.

6. Learned counsel for Respondent No.4 (DHA) support the contention of the learned counsel for the respondent No.3 and seeks dismissal of the present appeal.

7. We have heard learned counsel for the parties on the preliminary objection raised by Respondent No.3 regarding maintainability of the present appeal, perused the material available on record, and have also summoned and examined the record of the underlying J.M. No.33 of 2023.

8. The objection goes to the very competence of the appeal. The material placed before us reflects, and indeed it is no longer disputed on behalf of the Appellant, that Mukhtar Ahmed Chauhan, in whose name the present appeal has been instituted, passed away on 10.11.2022. The present High Court Appeal, however, was instituted in the year 2025, i.e., more than two years after his death, through an attorney purportedly acting under a Special Power of Attorney executed by the deceased during his lifetime. Significantly, the factum of his death was neither disclosed in the memorandum of appeal nor otherwise brought to the notice of this Court at the time of institution of the appeal. It surfaced only when Respondent No.3 raised the objection and placed the death certificate and other documents on record.

9. The principal question, therefore, is not whether the right to sue survived the death of Mukhtar Ahmed Chauhan, but whether an appeal could validly be instituted in his name after his death by a person claiming authority under a Power of Attorney executed during his lifetime. The two concepts are distinct. Survival of a cause of action determines whether the substantive right may be pursued by or against the legal representatives of a deceased person; it does not confer legal existence upon the deceased himself for purposes of instituting fresh proceedings.

10. It is elementary that a person who has already died has no legal capacity to institute proceedings. Likewise, an attorney derives his authority from the principal and ordinarily cannot continue to exercise such authority after the death of the principal. A Power of Attorney is an instrument of agency, and the authority flowing therefrom comes to an end upon the death of the principal, subject, of course, to any statutory exception applicable in a given case. No such exception has either been pleaded or demonstrated before us. Consequently, on the date when the present appeal was instituted, the purported attorney had no subsisting authority from Mukhtar Ahmed Chauhan to institute proceedings in his name.

11. Insofar as the contention of learned counsel for the Appellant that an appeal is a continuation of the suit does not improve the position. Although an appeal is regarded as continuation of the original proceedings for several legal purposes, it nevertheless requires valid institution by a person competent to invoke the appellate jurisdiction. The doctrine that an appeal is continuation of a suit cannot be stretched to the extent of permitting an appeal to be instituted in the name of a person who had ceased to exist before its filing.

12. There is also a material distinction between the death of a party during the pendency of validly instituted proceedings and the institution of proceedings in the name of a person who was already deceased. In the former situation, Order XXII CPC provides the mechanism for bringing the legal representatives on record where the right to sue survives. In the latter situation, however, there is no living party at the inception of the proceedings whose legal representatives may simply be substituted upon his subsequent death. Thus, the provisions relating to substitution cannot, in their ordinary application, be invoked to retrospectively validate proceedings instituted in the name of a deceased person.

13. Insofar as the submission that the defect is merely technical and may be cured by now bringing the legal heirs on record is equally unpersuasive. Courts undoubtedly lean in favour of adjudication on merits and procedural rules are intended to advance rather than obstruct justice. That principle, however, cannot be invoked to cure a defect which goes to the very institution of the proceedings. Procedural latitude presupposes the existence of valid proceedings before the Court. Where the person shown as the Appellant was already dead when the appeal was instituted and the person purporting to act as his attorney had ceased to possess authority on account of his death, the defect cannot be characterized merely as an irregularity in representation.

14. We are also unable to accept the argument founded upon survival of the cause of action. Even if the right involved in the underlying litigation survived the death of Mukhtar Ahmed Chauhan, such surviving right vested in and was enforceable by his legal representatives in accordance with law. It was for such legal representatives, subject to limitation and other applicable requirements, to institute appropriate proceedings. Survival of the right, therefore, does not validate an appeal instituted subsequently in the name of the deceased through an attorney whose authority had already come to an end.

15. There is yet another aspect of the matter which cannot be overlooked. The Appellant had died on 10.11.2022, whereas the present appeal was instituted in 2025. Despite this, the memorandum of appeal was presented in his name through the purported attorney without disclosure of his death. Even after institution, the proceedings continued in the name of the deceased until Respondent No.3 placed the relevant material before the Court. A litigant invoking the appellate jurisdiction of this Court is under an obligation to make full and candid disclosure of material facts. The death of the person in whose name the jurisdiction of the Court was being invoked was manifestly a material fact and ought to have been disclosed at the very outset.

16. The record further reflects certain anomalies concerning the authority of the persons who have purportedly represented the Appellant at different stages of the proceedings. The present appeal was instituted through one Bilal Ahmed son of Bashiruddin Mirza, claiming to be the attorney of the Appellant on the strength of a Special Power of Attorney purportedly executed on 25.10.2022. However, during the pendency of the appeal, an application for inspection (CMA No.293 of 2026) was filed through another person, namely Mukammal Khan son of Umer Khatab, who also claimed to be the attorney of the Appellant on the basis of a separate Special Power of Attorney allegedly executed on 24.10.2022. Furthermore, examination of the record of J.M. No.33 of 2023 reveals that a Vakalatnama on behalf of the present Appellant, who was Respondent No.3 therein, was filed through yet another person, namely Abdul Hafeez son of Abdul Aziz, claiming to act as his attorney; however, the Power of Attorney purportedly authorizing him to represent the Appellant is not available on the record of those proceedings.

17. The appearance of three different persons at different stages of the proceedings, each claiming to act as attorney of the same principal under separate authority, coupled with the absence from the record of the Power of Attorney purportedly relied upon in J.M. No.33 of 2023, gives rise to a serious and unexplained anomaly regarding the authority under which the litigation has been conducted on behalf of the Appellant. This aspect assumes added significance in view of the admitted fact that the Appellant passed away on 10.11.2022. Although the two Special Powers of Attorney now being relied upon are purported to have been executed on consecutive dates, i.e., 24.10.2022 and 25.10.2022, shortly before the Appellant’s death, neither appears to have surfaced until the institution of the present proceedings in 2025. Be that as it may, even assuming their due execution, the authority purportedly conferred thereunder could not have remained operative after the death of the principal. These circumstances, when considered cumulatively, cast serious doubt upon the lawful authority under which the present appeal was instituted and thereafter pursued in the name of the deceased Appellant.

18. In view of the foregoing, we are of the considered opinion that the present appeal, having been instituted in the name of Mukhtar Ahmed Chauhan after his death and through an attorney whose authority had ceased upon the death of the principal, was not validly instituted. The subsequent offer to bring the legal representatives on record cannot retrospectively confer validity upon proceedings which were incompetent at their inception. The preliminary objection raised by Respondent No.3, therefore, has substance and is sustained.

19. Consequently, the instant High Court Appeal is dismissed as not maintainable, along with all pending applications. This order, however, shall not be construed as an adjudication upon the merits of the controversy or upon any independent remedy, if otherwise available to the legal representatives of the deceased Appellant in accordance with law and subject to limitation and all other legal objections.

There shall be no order as to costs.

JUDGE

Naveed PA