BADAR HUSSAIN Vs. GULAM HUSSAIN

JUDGEMENT

(1.) This appeal was admitted after framing two substantial questions of law on 26.8.1986.The appeal was heard and the record also perused.

(2.) It transpires from the record that during the pendency of the suit, the plaintiff Ajattun died leaving behind eight legal representatives, five sons and three daughters. Immediately after the death of sole plaintiff Ajattun, an application was submitted stating therein that those eight legal representatives named in the application be taken on record as plaintiffs. It is also mentioned that the application has been filed within 30 days from the death of the plaintiff. The application was submitted on 12.2.1979. This fact was noticed by the first appellate court and the first appellate court observed on this application that no notice was issued to any of the legal representatives of the plaintiff. The first appellant court found this fact as serious irregularity instead of illegality and observed that the case was fit for remand so that the proposed legal representatives could have been served with the notice and, thereafter, the application for taking on record the legal representatives of sole plaintiff could have been decided but the first appellate court merely on the ground that it will cause delay, refused to remand the matter to the trial court.

(3.) The legal representatives of the plaintiff shown by Karamat Hussain son of plaintiff Ajattun in the application dated 12.2.1979, has not disclosed that who should be impleaded as plaintiff and who should be impleaded as defendant. The application is not signed by all the heirs nor Vakalatnama has been filed with the said application or even thereafter. Be it as it may be, the crucial fact was that the defendant Gulam Hussain himself is son of said one of the proposed legal representative of the plaintiff. Not only this but the defendant's case in written statement is that the house in dispute was purchased by the said legal representative, defendant's father Musarraf Hussain, therefore, the defendant is residing in the house. Despite this stand taken by the defendant, the defendant's father was not served with notice before impleading him as party in the suit as plaintiff. It will be worthwhile to mention here that even all other legal representatives of the sole deceased plaintiff, preferred appeal but by impleading Musarraf Hussain as as respondent and not as appellant with them. Therefore, before the first appellate court, it was clear that the interest of the appellants was not same with said Musarraf Hussain, legal representative of the original plaintiff. In the first appeal, the power was filed by said Musarraf Hussain, with defendant Gulam Hussain but it appears that since the suit was dismissed by the trial court, therefore, this fact might have escaped the notice of the first appellate court and none of the parties also brought this fact in the knowledge of the first appellate court.