PLJ
2011 Lahore 184
Present:
Ch. Muhammad Tariq, J.
GHULAM
RASUL and another--Petitioners
versus
GHULAM
QADIR--Respondent
C.R.
No. 1267 of 1999, decided on 22.3.2010.
Civil
Procedure Code, 1908 (V of 1908)--
----S.
151, O. IX, R. 13 & O. XXII, R. 40--Limitation Act, 1908, S. 5--Ex-parte proceedings--No notices were served upon legal heirs
of deceased about the pendency of civil revision in
High Court--As soon as person dies, his power of attorney seizes with death of
a party--Validity--Civil revision was filed against a sole deceased and there
was no other respondent in civil revision who could inform the legal heirs of
deceased about pendency of civil revision--Held:
Judgment was not sustainable in the eye of law against a dead person,
particularly when power of attorney executed by deceased had already
expired--It was a sufficient cause to condone the delay--Ex-parte
decree was set aside--Petition was accepted. [Pp.
185 & 186] A & B
Sh. Naveed Shaharyar,
Advocate for Applicant-Respondent.
Ch.
Riasat Ali, Advocate for Writ-Petitioners.
Date
of hearing: 22.3.2010.
Order
C.M.
No. 1-C/08, C.M. No. 2-C/08, C.M. No. 3-C/08, C.M. No. 4-C/08
This
revision petition was decided vide judgment dated 15.4.2005 by this Court in
which Ghulam Qadir
respondent/plaintiff was proceeded against ex-parte.
On 15.5.2008, Sh. Naveed Shaharyar, learned counsel for the respondent/plaintiff has
filed four civil miscellaneous applications i.e. C.M. No. 1-C-08 for setting
aside ex-parte decree, C.M. No. 2-C-08 for bringing
on record the legal heirs of deceased Ghulam Qadir respondent, C.M. No. 3-C-08 for an application under
section 5 of the Limitation Act for condonation of
delay and C.M. No. 4-C-08 for interim injunction for the suspension of
operation of the impugned judgment.
2. Learned counsel for the applicant/respondent
contends that the impugned ex-parte judgment be set
aside on the following grounds:-
1. That the impugned judgment was passed
on 15.4.2005 while Ghulam Qadir
respondent had died on 22.3.2004, therefore, a decree could not be passed
against a dead person.
2. That as soon as a person dies, his
power of attorney automatically ceased to exist unless a new power of attorney
is issued/executed by the legal heirs of the deceased.
3. That admittedly the legal heirs of
deceased Ghulam Qadir were
abroad who were never served with notice by this Court.
4. That an ex-parte
judgment and decree against a dead person is a void order, therefore, period of
limitation does not run against a void order.
5. That Mst. Bushra and Mst. Hameedan Bibi are illiterate
ladies, they were not in a position to approach the Court to obtain the result
of the case.
6. That Article 144 has been deleted and
no more exists.
7. That it was a case against a sole
respondent therefore, the ex-parte judgment be set
aside, the delay be condoned and the application be allowed to implicate the
legal heirs of deceased Ghulam Qadir
and may be decided afresh on merits after hearing all the parties.
3. On the other hand, the learned counsel for
the defendants/petitioners has submitted their written reply and controverted the contentions of the learned counsel for the
applicant with the prayer that all the applications be dismissed; that the ex-parte decree is not liable to be set aside because the
learned counsel for the applicant/respondent has failed to show any reasonable
cause for the condonation of delay. The learned
counsel for the respondent has put more stress on the point of limitation that
application to set aside ex-parte decree is badly
barred by time.
4. Arguments heard. Record perused.
5. The ex-parte decree
was passed on 15.4.2005 and record reveals that the respondent Ghulam Qadir was died on
22.3.2004. This fact is un-rebutted. It is further confirmed that the legal
heirs of deceased respondent Ghulam Qadir were abroad and record also shows that after the
death of Ghulam Qadir, no
notice were served upon the legal heirs of deceased respondent to inform about
the pendency of civil revision in this Court. Again
there is no dispute about this fact that as soon as a person dies, his power of
attorney seizes with the death of a party. The record further reveals that the
civil revision was filed against a sole
respondent Ghulam
Qadir and there was no other respondent in the civil
revision who could inform the legal heirs of deceased Ghulam
Qadir about the pendency of
civil revision.
6. In view of the above discussion, this Court
is of the view that the judgment dated 15.4.2005 is not sustainable in the eye
of law against a dead person, particularly when power of attorney executed by
the deceased respondent had already expired. In such a situation, it is a
sufficient cause to condone the delay, therefore, I
accept these petitions and delay is condoned. The ex-parte
decree is set aside and the petitioners in the main revision petition are
directed to submit amended memo of parties within two weeks. Thereafter, civil
revision be decided on merit.
(R.A.) Revision
allowed.
