ORDER SHEET

IN THE HIGH COURT OF SINDH,

CIRCUIT COURT, HYDERABAD.

C.P.NO.D-768 OF 2009. 

DATE                    ORDER WITH SIGNATURE OF JUDGE

19.04.2011.

FOR KATCHA PESHI.

            Mr. Abdul Hameed Bajwa, Advocate for Petitioner.

            . . . .

            The Petitioner has called in question order dated 22.3.2006 in F.C.Suit No.140 of 1982, passed by IInd Senior Civil Judge, Mirpurkhas, whereby the Petitioner's application under section 12(2) C.P.C. was dismissed as well as order dated 27.7.2009, whereby learned Ist Additional District Judge, Mirpurkhas while rejecting Civil Revision No.3/2006 affirmed the said dismissal order.

            Briefly, the predecessor-in-interest of the Petitioner namely Ibrahim alongwith his brothers and cousins namely Sharif, Liaquat and Ghulam Murtaza viz. Respondents No.2 to 4 purchased agricultural land comprising blocks No.66/1 to 16 and 84/1 to 16, measuring 32 acres in Deh 155, Taluka Digri from Respondents No.5 and 6. The Respondent No.1, who was an adjoining khatedars, filed a pre-emption suit bearing No.140/1992 against the predecessor-in-interest of the Petitioner as well as Respondents No.2 to 6. The suit ultimately was decreed on 27.5.1991. The Respondents No.2 to 6 filed an appeal bearing No.15/1993 challenging the said judgment and decree but the same was also dismissed. The said Respondents thereafter filed a civil revision before this Court, which also was dismissed. Thereafter, the present Petitioner who is one of the legal heirs of Ibrahim, filed an application under section 12(2) C.P.C. on the ground that after institution of the suit in the year 1982, his father Ibrahim died and his legal heirs were not made party and the plaintiff and defendants in the said suit had obtained a collusive decree without joining him as one of legal heirs of Ibrahim. The application did not find favour from the trial Court and consequently was dismissed. The Petitioner challenged the order dismissing his application under section 12(2) C.P.C. by filing revision application before the Additional District Judge, Mirpurkhas, who vide order dated 27.7.2009 dismissed the Revision which order is impugned through instant petition.

            Counsel for the Petitioner has contended that written statement in the original suit was not signed by the predecessor-in-interest of the Petitioner i.e. Muhammad Ibrahim, nor Vakalatnama was signed and therefore, the entire proceedings conducted on behalf of Petitioner's predecessor-in-interest were without authority and collusive. It was next pleaded that though the other Respondents were close relatives of the Petitioner namely uncle and cousin i.e. member of same family but the Petitioner was never informed about the litigation in question. It was lastly contended that the trial Court was not empowered to dismiss the Petitioner's application under section 12(2) C.P.C. summarily unless the issues were framed and the parties were allowed to lead their evidence.

            We have heard the learned Counsel and perused the record.

            Perusal of application under section 12(2) C.P.C.  moved by the Petitioner before the trial Court reflects that the Petitioner in the said application has not taken any of the pleas which are argued before us specially non-signing of written statement or Vakalatnama by his predecessor-in-interest. The scrutiny of the entire application reflects that it nowhere states that the Petitioner's predecessor-in-interest did not sign written statement or was not aware regarding the filing of suit. Even otherwise, the other defendants now Respondents before us were his brothers and nephews. The contention of the Petitioner is further belied from the fact that the other legal heirs of Petitioner's predecessor-in-interest (i.e his brothers and sisters) alongwith other Respondents had challenged the judgment and decree by filing appeal as well as Revision, therefore, the ignorance/unawareness pleaded by the Petitioner  at this juncture is malafide. We are not inclined to believe that all the members of a joint family living together including brothers and sisters of the Petitioner as well as uncle who were all along contesting the suit and the Petitioner was unaware. It is further important to observe that in cases where one of the defendants dies during the proceedings then the burden is on his legal heirs provided in terms of Order VIII Rule 13 C.P.C. to intimate the Court regarding death of that defendant and in case no intimation is laid before the Court then any order made or judgment pronounced in terms of order XXII Rule 4 has the same force and effect as if it had been pronounced before the death took place. No case for interference is made out. The petition consequently is dismissed in limine.

                                                                                                                  JUDGE

                                                                                     JUDGE