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Petitioner: Khawaja AUTO CARS LIMITED VS Respondent: Haji SHARIF KHAN
Court Name: Sindh High Court Judge(s): Syed Deedar Hussain Shah, Shafi Muhammadi Title: Khawaja AUTO CARS LIMITED vs Haji SHARIF KHAN Case No.: Suits Nos. 732 and 731 of 1977 Date of Judgment:1996-03-03 Reported As: 1996 CLC 1337 Result: Application accepted
JUDGMENT
JUDGMENT ' SHAFI MUHAMMADI, J.---Out of several hundred antiques in the shape of suits, the one in hand and the connected Suit No, 731 of 1977 relate to the year 1977. Written statements in these suits were filed on 31-3-1977 alongwith the list of legal representatives. Issues were framed on 5-5-1979 and the suits became ripe for evidence on 11-4-1991. Since then these suits have not seen the dawn for evidence as the matter was adjourned on each and every date whenever the same were fixed for evidence. The natural result of such delay was the same as could be expected by every sensible person i,e, the main parties train of life crossed the borders of this mortal world to reach the station of accountability in the eternal world. But the suits are still in the clutches of certain objections raised by .The learned Advocates of both the parties. As main contentions were advanced in Suit No,732 of 1977, hence only the said suit would be mostly referred to as the "suit in hand" except in certain paragraphs where the word "suits" may be used instead of "suit" wherever the context so permits. 2. Facts unfolded in the plaint of the suit in hand the defendants in both the suits were Directors of Khawaja Auto Cars Limited (a private limited company and the plaintiff in both the suits). They resigned on 31-7-1976 alongwith transfer of their entire shareholding. During their directorship the defendants, as alleged, had drawn money as personal loan from the plaintiff's Company which was not repaid. Hence these suits were filed for recovery of that amount. ' Instead of producing evidence in these suits, several questions of great importance, including the question of maintainability of a suit filed by a private limited company without any resolution, were raised by the learned Advocate for L.Rs, of the deceased defendant while the learned counsel for the plaintiff raised objection that L.Rs, of the deceased defendant were debarred to make part in
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the proceedings as they had failed to file applications for the said purpose within the time limited by law. ' Certain other facts which are directly concerned with the objections raised by the learned counsel for the plaintiff have been revealed by order sheets dated 2-9-1991 of this suit which reflects that one Sardar Khan son of the late defendant namely Haji Sharif Khan informed the Court that his father had expired in 1988. He also revealed that Haji Abdul Rashid, a defendant in the connected Suit No,731 of 1977 had also expired in 1989. It is notable that both these suits i,e,, Suit No,731 of 1977 and the present one, were filed by the same plaintiff. Initially Mr. Khalid Anwar, one of the learned Advocates, was appearing on behalf of the defendants but he was not attending the suit. As per statement of Sardar Khan, the learned Advocates had declined to proceed with these suits. Hence L.Rs, of both the suits sought adjournment to engage some other Advocates. It appears from the record the L.Rs, had engaged Mr. Salahuddin, Advocate but he also expired before the matter could come to an end. After his expiry Mr. Muhammad Farogh Naseem, Advocate appeared on the scene and moved C.M.As. Nos.5511/95 under Order 22 read with sections 151, and No,5510/95 under section 5 of the Limitation Act read with sections 151 and 153, C.P.C. On behalf of the L.Rs, of defendants. These two applications are the subject-matter of this order which were strongly opposed by Mr. Saeed A. Sheikh, the learned counsel for the plaintiff. According to my point of view, this Court cannot proceed a single step further unless these applications are decided in the first instance. On 4-9-1995 I ordered that both the suits be fixed together because several common orders in both the suits were scattered sometimes in one suit and sometimes in the other suit, hence it was not possible to reach a correct conclusion unless both the suits had been ordered to be fixed on the same date. 3. It may be interesting to point out that on 16-8-1995 Mr. Saeed' A. Sheikh, the learned counsel for the plaintiff, presented an "Affidavit of Proof" sworn by one Syed Ali Murtaza Moini in Suit No,731 of 1977 although his name was not mentioned in the list of witnesses. The list of witnesses submitted by the learned Advocate for the plaintiff on 10-5-1979 contained only the names of Ch. Muhammad Akhtar and Syed Javid Akhtar. Ch. Muhammad Akhtar appears to have signed the plaints in both the cases. ' Notwithstanding this reality that the deponent Syed Ali Murtaza Moini was not included in the list of witnesses, I could not understand whether this "Affidavit of Proof" be treated as "affidavit in ex parte proof" or "affidavit in evidence". It can only be presumed that this "affidavit" was an "affidavit in ex parte proof" because the learned counsel for the plaintiff had urged that the L.Rs, of the deceased defendant were debarred from taking part in the proceedings, and, therefore, his intention must be to get ex parte order against the deceased defendant. 4. Come to the subject-matter of the applications in hand. Contentions of the controvertists requires interpretation of Order XXII, Rule 4, particularly its sub-rule (3), C.P.C. Which was amended by the Law Reforms Ordinance, 1972 (hereinafter referred to as "the amended sub-rule". ' Before touching the contentions advanced by the learned Advocates it may be advantageous to reproduce the relevant Rule 4 as it existed before and after amendment through Law Reforms Ordinance (XII of 1972). ' Order XXII, Rule 4, C.P.C.: (Procedure in case of death of one of several defendants or of sole defendant). ' Before amendment: 4. --(1) Where one of two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants alone, or a sole defendant or sole surviving defendant dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit.
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(2) Any person so made a party may make any defence appropriate to his character as legal representative of the deceased defendant. (3) Where within the time limited by law no application is made under sub-rule (1), the suit shall abate as against the deceased defendant. ' After amendment: 4. --(1) Where one of two or more defendants dies and the right to sue does not survive against the surviving defendants alone or on receipt of an intimation of the death of such defendant from the person nominated by him for that purpose under rule 13, Order VIII or a sole defendant or sole surviving defendant dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit. (2) Any person so made a party may make any defence appropriate to his character as legal representative of the deceased defendant. (3) When within the time limited by law no application is made or intimation is given under sub- rule (1), the Court may proceed with the suit, and any order made or judgment pronounced in such suit shall notwithstanding the death of such defendant, have the same force and effect as it had been pronounced before the death took place. (4) It shall not be necessary to substitute the legal representatives of any such defendant who has failed to file a written statement or has failed to appear and contest the suit at the hearing and judgment may in such case be pronounced against the said defendant notwithstanding his death, and such judgment shall have the same force and effect as if it had been pronounced before his death took place. ' The mirror of underlined sentences reflects all those changes which have been introduced by Ordinance XII of 1972. These changes can be summarised as under: (i) Sub-rule (1) contains addition of words "or on receipt of an intimation of death of defendant for the person nominated by the said deceased defendant for that purpose under rule 13, Order VIII. (ii) Sub-rule (2) remained unchanged. (iii) Sub-rule (3) has been substituted by a fundamental change. ' The words of the old sub-rule (3) "the suit shall abate as against the deceased defendant" have been replaced by the words "the Court may proceed with the suit, and any order made or judgment pronounced in such suit shall, notwithstanding the death of such defendant, have the same force and effect as it had been pronounced before the death took place in the amended sub-rule. (iv) Sub-rule (4) is a new addition in Rule 4 of Order XXII, C.P.C. (These changes would be hereinafter referred to as the said amendment/amendments). 5. Contention of Mr. Saeed A.Shaikh on behalf of the plaintiff is that L.Rs, of the defendants were bound to make an application within ninety days, as required under Article 177 of the Limitation Act, to implead them as legal representative of the deceased defendant on record. As the L.Rs, have not made any application within 90 days, hence their failure in this regard would debar them from taking part in the proceedings. ' This contention gave birth to several questions inter alia, the following:- ' Would it not amount to pass ex parte decree against a deceased defendant? ' Could such decree, if passed, be executable against the L.Rs, of the deceased defendant who were not allowed to participate in the proceedings and particularly against the minor L.Rs, of any deceased defendant? ' Whether the Law Reforms Ordinance, 1972 had only protected the rights of plaintiff which were not safe in the old law on account of abatement and had taken away the rights of deceased
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defendant's L.Rs, under the amended sub-rule if they failed to make an application within the time limited by law. 6. On the other hand, Mr. Muhammad Farogh Naseem, the learned counsel for the L.Rs, of the deceased defendant urged that bringing L.Rs, on record had become merely a formality after the Law Reforms Ordinance, 1972. He further urged that even, if the contention of Mr. Saeed A. Shaikh is considered to be correct, the delay in bringing L.Rs, on record can be condoned by the Court under section 151, C.P.C. Because on the face of record of this suit the L.Rs, of the deceased defendant could not be made responsible for any such delay. This contention also raised two more questions for my consideration i,e, ' Whether Article 177 of the Limitation Act has become meaningless if brining L.Rs, on record has become a formality after Law Reforms Ordinance, 1972? ' If Article 177 of the Limitation Act has still force in it, particularly when it has not been amended, then what are the consequences if the L.Rs, are not brought on record within the time prescribed in Article 177? 7. From the abovementioned factual and legal aspects of the suit, it is evident that battle is being fought by the learned Advocates of the parties on the field of amendments with the weapons of technical objections which basically relates to the interpretation of the amended sub-rule (3) of Rule 4 of Order XXII, C.P.C. ' Mr. Saeed A. Shaikh is fighting his battle on the strength of two cases of this Court. One case is reported as Bibi Khudeja v. Pir Saruruddin Shah (1992 MLD 490) decided by a Division Bench comprising of Mamoon Kazi and Kamal Mansoor Alam, JJ. While the other is reported, as Saifuddin v. Zainuddin (1995 CLC 1348) decided by another Division Bench comprising of Abdul Rahim Kazi, J. (as he then was) and Abdul Latif Qureshi, J. (These two cases would be referred to as "the two D.B.'s. Decisions or the judgments of the D.B' s . "). ' It is necessary to point out that the case of Saifuddin (supra) is merely a reproduction of observations made in the case of Bibi Khudeja (supra) where it had been held by the Hon'ble Division Bench that: "Failure of legal representatives of deceased to apply within prescribed period would debar them for taking part in the proceedings and the suit would continue in the name of the dead person." (Underlining is my own). ' On the strength of the two D.B.'s. Decisions, the learned counsel for the plaintiff stressed that this Court, being a Single Bench, was bound to follow the same construction as was done by the learned D.B.'s. Because what the learned D.B.'s. Have decided is the ratio decidendi or the rule of law for other. 8. On the other hand Mr. Muhammad Farogh Naseem, the learned counsel for the L.Rs, of the deceased, assailed the judgments of the D.B.'s. By saying that: "These judgments are erroneous, absurd, lack reasoning, are in conflict with law and statute and have ignored the provisions of statute and decisions operative in the field and are hence per incuriam and the Court should not follow them." ' In support of his contention the learned counsel relied upon judgments, approximately three dozen in number, besides well-known books on Jurisprudence and Legal Theories. ' These most interesting but of great importance averments advanced by the learned Advocates forced me to sift corn from chaff to reach some conclusion about the actual spirit of "the amended sub-rule" i,e,, sub-rule (3) which can be divided into two parts with reference to its procedural or minor changes and the substantial changes brought through the Law Reforms Ordinance, 1972. ' Prior to the amendment the first part was limited to the sentence. "When within the time limited by law no application is made under rule (1).. ' After amendment in 1972, this part of the sub-rule speaks that:
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' When within the time limited by law no application is made or intimation is given" under sub-rule (1)..." (Underlining is my own). ' It is thus evident that except the addition of underlined portion i,e,, or intimation is given, there is no other change in this part. This difference clearly shows that in the old law, there was procedure of making application while in the amended sub-rule, not only an application can be moved but an intimation can also be given to the Court about the death of a deceased defendant. ' But the second part of sub-rule (3) has substantial change in it. Prior to the amendment this part was limited to the words "the suit shall abate as against the deceased defendant but after the amendment these underlined words were replaced by the following words: "The Court may proceed with the suit and any order made or judgment pronounced in suit shall notwithstanding the death of such defendant have the same force and effects as if it had been pronounced before the death took place." (Underlining is my own). ' Thus, the second part of the said sub-rule got several fundamental and the most important changes. All these changes in Rule 4 of Order XXII, C.P.C. As discussed in the above line can be summarised as under: "(i) Prior to the Law Reforms Ordinance, 1972 moving an application on the death of deceased for bringing L.Rs, on record was mandatory on account of the word 'shall' used in the second part of sub-rule (3) of Rule 4, but the use of word 'may' in place of 'shall' after the said amendment made it fully clear that moving an application for the said purpose did not remain mandatory and only intimation can be treated sufficient. (ii) Prior to the said amendment if no application was moved within the time limited by law the consequences of such failure were alarming i,e,, the suit had to abate against the defendant. But, after the amendment, these alarming consequences were brought to an end." ' But the question arises as to who has to make an application for bringing the L.Rs, on record. The rule i,e, Rule 4 of Order XXII, C.P.C. By itself was silent prior to the amendment and is also silent even after the amendment on this point. However, it can be derived from sub-rule (1) of the said rule 4 that intimation about the death of a deceased defendant can be given by a person nominated by the deceased under Rule 13, Order VIII, C.P.C. But it does not mean that the said nominated person is bound to make an application for the said person because his role of nominated person appears to be limited to an intimation. 9. So far as the contentions advanced by Mr. Saeed A. Shaikh is concerned, I have no hesitation to say that it has been and it must be the policy of the Courts to stand by the ratio decidendi and not to disturb a settled point. This policy is termed as the doctrine of rule of stare decisis. I have also no hesitation to say that policy embodied in this doctrine promotes certainty, stability and predictability of the law. But at the same time, I have also no hesitation to say that neither this principle of stare decisis is inflexible nor it comes into play if it violates the letter and spirit of statutory provision or falls within the clutches of obiter dicta. This principle must be applied after discovering the purpose of the statutes and the changes/amendments brought in those statutes. This principle cannot be made applicable where it is erroneous or patently unreasonable besides being flexible too. In support of the flexibleness of this rule I need not to burden this order with the glimpses of different paras. From different judgments of the Hon'ble Supreme Court except to refer certain cases such as State v. Dosso (PLD 1958 SC (Pak.) 533), Miss Asma Mani v. The Government of Punjab and another (PLD 1972 SC 139), State v. Zia-urRehman (PLD 1973 SC 49), Begum Nusrat Bhutto v. Chief of Army Staff and Federation of Pakistan (PLD 1977 SC 657). It can be said with certainty that principle of stare decisis was not followed when these judgments were pronounced by the Hon'ble Supreme Court. If this principle had not been flexible the Hon'ble Chief Justice of
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Pakistan Syed Sajjad Ali Shah, J. Would not have stated in a case reported as Mian Muhammad Nawaz Sharif v. President of Pakistan and others (PLD 1993 SC 473) that:-- ...In the present case departure is made and same yardstick of evaluation of material is not applied. Seemingly it so appears that two Prime Ministers from Sindh were sacrificed at the altar of Article 58(2)(b) of the Constitution but when turn of Prime Minister from Punjab came the tables were turned. Indisputably right at the very outset of the preceding, indications were given that decision of the Court would be such which would please the nation. It remains to be seen whether what would please the nation, would be strictly according to law or not. In my humble opinion decision of the Court should be strictly in accordance with law and not to please the nation. What may please the nation may turn out to be against the letter and spirit of the law and the Constitution. ' (Rel. Page 787. The observations were given by him as a member of the Bench comprising of 11 Judges when Mr. Justice Nasim Hasan Shah was the Chief Justice of the Supreme Court). 10. Although policy of the Courts to stand by the ratio decidendi, as discussed above, is not inflexible yet the subordinate Court or the lower forums have no right to use this policy to get rid of the principles laid down by the superior Courts under the pretext of inflexibleness of this policy shown by the Hon'ble Supreme Court because such an attitude would, undoubtedly, shatter the foundation of judicial system. The crown of inflexibility appears splendorous only on the hands of higher or the highest forums of the benches of the superior Courts. On the basis of this proposition this Single Bench would be the last one to ignore the observations made in two D.B.'s. Decision i,e,, in the cases of Bibi Khudeja and Saifuddin (supra) referred to above in para. 7 unless the case of L.Rs, of the deceased-defendant represented by Mr. Muhammad Farogh Naseem falls within the clutches of such jurisprudential truths which put the rule of binding precedent within exceptions because exceptions destroy the binding force of a precedent and the Courts may refuse to follow any such precedent. According to the established principles of jurisprudence, a judgment of any higher forum may not be treated a precedent for other Courts if--- (i) the precedent is based on abrogated decisions i,e,, when a judgment is overruled by a higher Court; (ii) the precedent was given in ignorance of a statutory provision; (iii) the precedent is inconsistent with earlier decisions of higher. Courts; (iv) the precedent is obiter dictum i,e,, an incidental opinion expressed by a Judge; (v) the precedent passed sub silentio or not fully argued on the point alongwith the connected or relevant points; (vi) the precedent is distinguishable with reference to the facts of the case in hand; (vii) the precedent is inconsistent with earlier decisions of the same rank. ' Similarly there can be so many other exceptions where a judgment of any higher forum may not be treated a precedent for the lower forum. 11. It is necessary to point out that according to the general rule, no proceedings can be held against a dead person but Rule 4, Order XXII, as amended by the Law Reforms Ordinance 1972, appears to be an exception subject to a condition which requires every Court to wait for an application to be, moved by any of the parties of the suit or receives an intimation of the death of a defendant from a person nominated by the deceased defendant for bringing the legal representative on record within the time limited by law, which is 90 days from the death of a deceased according to Article 177 of the Limitation Act. If no such application is made within that period, the law permits the Court to proceed with the suit notwithstanding the death of a defendant, instead of abating the suit against the deceased defendant as was mandatory prior to the Law Reforms Ordinance, 1972. If this condition is not fulfilled then any adverse order passed by the Court before the expiry of 90 days, would be void and of no legal effect. In the light of this legal
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position I am of the view that an application under sub-rule (3) of Rule 4, Order XXII, C.P.C. Is not a formality as urged by Mr. Farogh Naseem, the learned counsel for the L.Rs, of the deceased, because if it had been so then there was no need of keeping the words "within the time limited by law" possessed by the old law alive in the amended sub-rule (3) by the Law Reforms Ordinance, 1972. Keeping Article 177 of the Limitation Act intact even after the amendment in the amended sub-rule (3) does have some object and I am of the view that the said object is not to pass any adverse order against the deceased defendant before the expiry of 90 days if no application was moved by any of the parties to bring L.Rs, on record. Contention of Mr. Muhammad Farogh Naseem that such an application is a formality, could not be accepted by me because it is a settled principle that if the words or sentences of any provision in the old provision of law are kept alive in its amended form too, then they must be regarded as in pdari materia and the previous judicial decision in respect of these words and sentences would remain the same in the cases of the amended provision but with reference to the context. On the basis of this proposition it can be said with certainty that keeping the period of limitation unchanged and uneffected in the amended form of sub-rule (3) of Rule 4 can never be treated meaningless or formality. 12. Similarly the contention raised by Mr. Saeed A. Shaikh, the learned counsel for the plaintiff, that failure of legal representative of deceased defendant to apply within the time prescribed by law would debar them for taking part in the proceedings does not appear to be correct in the present case if judged on the anvil of exceptions or seen through the transparent glasses of facts particularly in the light of sub-rule (4) of the said Rule 4 of Order XXII, C.P.C. It can be said with certainty that if sub-rule (3) is construed in the light of rays reflected by the said sub-rule (4) then true intention of the amendment, now clouded by doubts due to different judgments, can he easily ascertained. This point can be explained with the help of following few lines. If any defendant fails to file written statement, it does not debar him to cross-examine the plaintiff or his witnesses. Such defendant can also argue the matter and contest the suit at the time of every hearing till its final disposal. If he is aggrieved by any order of the Court or the final judgment then nothing debars him to file an appeal, revision or the petition, as the case may be and permitted by law. Therefore, when any such defendant expires, before or after the suit is finally disposed of, then his legal representative would have the same rights…
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