PLJ 2023 Cr.C. 423
[Lahore High Court, Lahore]
Present: Muzamil Akhtar Shabir, J.
MUHAMMAD MAJID--Petitioner
versus
Dr. MUHAMMAD SHAHID IQBAL--Respondent
Crl. Org. No. 29909 of 2022, decided on 15.9.2022.
Contempt of Court Ordinance, 2003 (V of 2003)--
----Ss. 3/4 & 5--Constitution of Pakistan, 1973, Art. 204(3)--Non-compliance of order issued writ petition--Respondent MS was died before filing of writ petition in which order for implementation was passed--Present MS was not implead as party in present writ petition--Suo motu powers of Court for intertioning of contempt proceedings--Question of--Whether order passed in writ petition would still hold filed especially when present petition was filed against a dead person as a sole respondent in petition for contempt of Court and no other person was impleaded as party--Types of contempt of Court--Respondent had already died two years ago and he was neither holding post of Medical Superintendent on date when petition was filed nor date when direction was issued--Therefore, he was not person to whom direction was issued and in said circumstances he had not disobeyed order passed by Court--Where there was only one defendant or respondent and he was dead at time of initiation of proceedings, then proceedings against him would be similar to a ‘still born lis/suit’ with no possibility of revival, hence, nullity in eyes of law and not proceedable at all so much so that in such proceedings legal heirs of deceased can also not be impleaded and fresh proceedings, if permissible under law, may be initiated--High Court has suo motu powers to initiate contempt of Court proceedings against alleged contemner, however, as in case in hand respondent was impleaded as only respondent in petition for contempt of Court and no other respondent had been impleaded, therefore, petition in hand having been filed against dead person was void ab initio as a whole and not in piecemeal, hence nullity in eye of law and therefore substitution of respondent by impleading incumbent would not be permissible in this petition--Petitioner has failed to point out who is presently holding said position and whether matter of petitioner was placed before said person for decision in terms of order passed by High Court and it is also not clear as to if matter if placed before incumbent for consideration has yet been decided or not, especially when petitioner himself is not sure as to which specific person had to decide his representation--Petition dismissed.
[Pp. 430, 436, 437 & 438] C, D, E & F
2021 CLC 58 (Lahore), 2001 SCMR 1, 2018 CLD 1203 (Karachi), PLD 2012 Lahore 240 & AIR 1999 SC 1484 ref.
Constitution of Pakistan, 1973--
----Art. 204--Powers of Court--The perusal of Article 204 makes it clear that the Court has power to punish any person who commits contempt of Court and proceedings can be initiated by the Court against the person alleged thereunder, which may be regulated by law, and subject to law, by rules made by the Court.
[P. 427] A
Contempt of Court Ordinance, 2003 (V of 2003)--
----Ss. 3 & 4--Constitution of Pakistan, 1973, Art. 204--Initiationing of contempt proceedings--Types of contempt proceedings--Contempt proceedings could be initiated against the person who is alleged to have committed any one of the three types of contempt of Court provided under the law i.e. civil contempt, criminal contempt or judicial contempt. [P. 429] B
Mahar Sohail Zafar Sipra, Advocate for Petitioner.
Barrister Amar Saeed for Respondent
Mr. Muhammad Jahanzaib and Mr. Muhammad Arshad Manzoor, Assistant Advocate Generals, Punjab.
Messrs. Abdul Mannan Sipra, Syed Sabahat Hussain Hamdani, Barrister Hassan Safdar Khan, Muhammad Farooq Khokar, Ahmad Hassan Khan Khichi, Dr. Muhammad Azeem Raja, Nasrullah Khan Baber, Ch. Muhammad Omer Riaz, Syed Imran Ehsan, Malik Khalid Shafiq, Ch. Muhammad Shahid Iqbal, Mirza Shehryar Farhan Baig, Atif Suhail Butt, Ch. Muhammad Naseer, Syed Muhammad Haider Kazmi, Ch. Imtiaz ullah Warraich, Muhammad Raza, Mazhar Hussain Tahir, Alamdar Hussain Advocates.
Ms. Zarish Fatima and Ms. Sadia Malik, Advocates.
Mir Haroon-ul-Rasheed, Assistant Attorney General for Pakistan.
Date of hearing: 15.9.2022.
Judgment
Through this contempt of Court petition filed under Article 204 of the Constitution of Islamic Republic of Pakistan, 1973 (‘Constitution’) read with Section 3/4 of Contempt of Court Ordinance, 2003 (‘Ordinance’), the petitioner, who is a ward servant in Jinnah Hospital, Lahore seeks initiation of contempt of Court proceedings against Dr. Muhammad Shahid Iqbal, Medical Superintendent, Jinnah Hospital, Lahore for non-compliance of order dated 04.03.2022 passed by this Court in W.P. No. 13278 of 2022.
2. The facts in brief are that the petitioner filed Writ Petition No. 13278 of 2022 titled Muhammad Majid versus Government of Punjab through Secretary (Health), etc. by impleading Medical Superintendent Jinnah Hospital, Lahore and District Accounts Officer, Lahore as Respondent Nos. 2 and 3 by claiming that he was appointed as Ward Servant in Jinnah Hospital, Lahore in August 1998 and had diligently been performing his duties without any complaint from the respondents. Despite the same, his salary had been stopped by the respondents for the last about 4/5 months without notice and resultantly on 11.01.2022, he moved an application with Respondent No. 2/Medical Superintendent of Jinnah Hospital for release of his salary, which has not been decided yet and on the basis of said facts prayed that respondents be directed to release his salary without any further delay, to meet ends of justice. The said petition came up for hearing before this Court on 04.03.2022, when this Court at the request of the petitioner’s counsel passed the following order:
“Learned counsel for the petitioner states that the Petitioner has moved an application, available at page 07 (Annexure “A”) of this petition with Respondent No. 2, which has not been decided so far. Seeks early disposal of the same.
2. In view of the above, Respondent No. 2/M.S. Jinnah Hospital, Lahore is directed to decide the afore-referred application of the Petitioner in accordance with law, rules and policy after providing opportunity of hearing to the petitioner and all the others concerned expeditiously, preferably within a period of 30 days from receipt of order of this Court.
3. With these observations, this petition stands disposed of.”
3. Learned counsel for the petitioner states that order dated 04.03.2022 has not been complied with by the respondent, as he has not decided the application filed by the petitioner within the prescribed time frame as directed by this Court therefore, he is liable to be proceeded against for committing contempt of Court and punished accordingly.
4. On the other hand, learned counsel appearing on behalf of respondent states that respondent/Dr. Muhammad Shahid Iqbal, who was a former Medical Superintendent, Jinnah Hospital, Lahore had died two years ago, which was prior to the filing of writ petition no. 13278 of 2022 and passing of order dated 04.03.2022 by this Court, hence the said order could neither be treated to have been passed against him nor he could be held liable to be bound to implement the same, whereas the present incumbent of the office of the Medical Superintendent of Jinnah Hospital has not been impleaded as a party, therefore, this contempt of Court petition cannot proceed against a dead person.
5. The learned A.A.G. and other advocates who have voluntarily appeared to assist this Court on the legal aspect of the issue under discussion state that the writ petition was filed against the Medical Superintendent, Jinnah Hospital by designation in official capacity and not against Dr. Muhammad Shahid Iqbal or anyone else by name, therefore, there is no defect in the order passed in the writ petition dated 04.03.2022, yet Dr. Muhammad Shahid Iqbal could not be proceeded against for non-compliance of orders passed in the said petition especially when on the date when the petition was filed and orders were passed, he was neither alive nor was holding the said post.
6. The questions that have arisen for determination are that (a) whether the order dated 04.03.2022 passed in Writ Petition would still hold the field; (b) whether the contempt of Court petition is proceedable against the respondent (who is a dead person); and (c) whether the said respondent could be allowed to be substituted by the present holder of the office of the Superintendent of Jinnah Hospital in the present petition or a separate petition needs to be filed by the respondent.
7. To determine the above mentioned legal aspects of the matter, reference may be made to the Article 204 of the Constitution providing for contempt of Court and proceedings in exercise of powers provided in the same, which is reproduced below:
“Article 204. (1) In this Article, “Court” means the Supreme Court or a High Court.
(2) A Court shall have power to punish any person who--
(a) abuses, interferes with or obstructs the process of the Court in any way or disobeys any order of the Court;
(b) scandalizes the Court or otherwise does anything which tends to bring the Court or a Judge of the Court into hatred, ridicule or contempt;
(c) does anything which tends to prejudice the determination of a matter pending before the Court; or
(d) does any other thing which, by law, constitutes contempt of the Court.
(3) The exercise of the power conferred on a Court by this Article may be regulated by law and, subject to law, by rules made by the Court.”
8. The perusal of Article 204 makes it clear that the Court has power to punish any person who commits contempt of Court and proceedings can be initiated by the Court against the person alleged thereunder, which may be regulated by law, and subject to law, by rules made by the Court. The said Article clearly provides that a person is stated to have committed contempt of Court if the said person abuses, interferes with or obstructs the process of the Court in any way or disobeys any order of the Court, scandalizes the Court or otherwise does anything which tends to bring the Court or a Judge of the Court into hatred, ridicule or contempt, does anything which tends to prejudice the determination of a matter pending before the Court or does any other thing which, by law, constitutes contempt of the Court. In order to carry out the mandate of law provided in Sub-Article (3) of Article 204 of the Constitution, the Contempt of Court Ordinance, 2003 was promulgated by the President of Pakistan in exercise of powers vested in him under Article 89 of the Constitution. The Section 3 of the Ordinance provides for contempt of Court in the following manner:
“3. Contempt of Court.--Whoever disobeys or disregards any order, direction or process of a Court, which he is legally bound to obey; or commits a willful breach of a valid undertaking given to a Court; or does anything which is intended to or tends to bring the authority of a Court or the administration of law into disrespect of disrepute, or to interfere with or obstruct or interrupt or prejudice the process of law or the due course of any judicial proceedings, or to lower the authority of a Court or scandalize a Judge in relation to his office, or to disturb the order or decorum of a Court, is said to commit “contempt of Court”. The contempt is of three types, namely, the “civil contempt”, “criminal contempt” and “judicial contempt.”
9. Definitions of civil contempt, criminal contempt and judicial contempt are provided in Section 2(a), (b) & (c) of the Ordinance respectively, which are reproduced below:
“2. Definitions. In this Ordinance, unless there is anything repugnant in the subject or context,--
(a) “civil contempt” means the willful flouting or disregard of,---
(i) an order, whether interim or final, a judgment or decree of a Court;
(ii) a writ or order issued by a Court in the exercise of its Constitutional Jurisdiction;
(iii) an undertaking given to, and recorded by, a Court;
(iv) the process of a Court;
(b) “criminal contempt” means the doing of any act with intent to, or having the effect of, obstructing the administration of justice;
(c) “judicial contempt” means the scandalization of a Court and includes personalized criticism of a Judge while holding office.”
The Section 4 of the Ordinance arms every Superior Court with powers to punish the contemner for a contempt committed in relation to it with further powers vested in every High Court to punish a contemner for a contempt committed in relation to any Court subordinate to it, however, the High Court is not to proceed against a contemner in which alleged contempt is punishable by subordinate Court under the Pakistan Penal Code, 1860. Moreover, Section 5 of the Ordinance makes the person who has committed contempt of Court, liable to be punished for the same and also provides for the quantum of maximum punishment that may be imposed upon him. The said punishment may extend to imprisonment which may extend to six months’ simple imprisonment, or with fine which may extend to one hundred thousand rupees, or with both. Section 5 is reproduced below:
“5. Punishment.---(1) Subject to sub-section (2), any person who commits contempt of Court shall be punished with imprisonment which may extend to six months’ simple imprisonment, or with fine which may extend to one hundred thousand rupees, or with both.
(2) A person accused of having committed contempt of Court may, at any stage, submit an apology and the Court, if satisfied that it is bona fide, may discharge him or remit his sentence.
Explanation.---The fact that an accused person genuinely believes that he has not committed contempt and enters a defence shall not detract from the bona fides of an apology.
(3) In the case of a contempt having been committed, or alleged to have been committed, by a company, the responsibility therefore shall extend to the persons in the company, directly or indirectly, responsible for the same, who shall also be liable to be punished accordingly.
(4) Notwithstanding anything contained in any judgment, no Court shall have the power to pass any order of punishment for or in relation to any act of contempt save and except in accordance with sub-section (1).”
10. The combined perusal of the Article 204 of the Constitution and Sections 3 & 5 of the Ordinance makes it abundantly clear that contempt proceedings could be initiated against the person who is alleged to have committed any one of the three types of contempt of Court provided under the law i.e. civil contempt, criminal contempt or judicial contempt. The Section 17 & 18 of the Ordinance provides the procedure to regulate proceedings for contempt of Court against the contemner, which are reproduced hereinafter:
“17. Procedure.--(1) Save as expressly provided to the contrary, proceedings in cases of contempt shall be commenced by the issuance of a notice, or a show-cause notice, at the discretion of the Court.
(2) In the case of a notice the alleged contemner may enter appearance in person or through an Advocate, and, in the case of a show-cause notice, shall appear personally:
Provided that the Court may at any time exempt the alleged contemner from appearing personally.
(3) If, after giving the alleged contemner an opportunity of a preliminary hearing, the Court is prima facie satisfied that the interest of justice so requires, it shall fix a date for framing a charge in open Court and proceed to decide the matter either on that date, or on a subsequent date or dates, on the basis of affidavits, or after recording evidence:
Provided that the alleged contemner shall not, if he so requests, be denied the right of cross-examination in relation to any affidavit, other than that of a Judge, used in evidence against him.”
“18. Substantial detriment. (1) No person shall be found guilty of contempt of Court, or punished accordingly, unless the Court is satisfied that the contempt is one which is substantially detrimental to the administration of justice or scandalizes the Court or otherwise tends to bring the Court or Judge of the Court into a hatred or ridicule.
(2) In the event of a person being found not guilty of contempt by reason of subsection (1) the Court may pass an order deprecating the conduct, or actions, of the person accused of having committed contempt.
(3) Subject to the provisions of this Ordinance, truth shall be a valid defence in cases of contempt of Court.”
11. The perusal of afore-referred Sections shows that it is not in every case that the alleged contemner has definitely to be proceeded against rather the conditions mentioned in the said Sections are to be met with before any action can be taken against the alleged condemner and he is not to be found guilty or punished unless the contempt is substantially detrimental to the administration of justice or scandalizes the Court or otherwise tend to bring the Court or Judge of the Court into hatred or ridicule.
12. In the present case through the order dated 04.03.2022 this Court directed the Medical Superintendent of Jinnah Hospital, Lahore to decide the petitioner’s application and the said direction was not issued to the respondent by name or in his personal capacity. The said direction was issued in writ petition which had been filed in the year 2022, whereas the respondent had already died two years ago and he was neither holding the post of Medical Superintendent on the date when the petition was filed nor on 04.03.2022 i.e. the date when the direction was issued. Therefore, he was not the person to whom the direction was issued and in the said circumstances he had not disobeyed the order passed by the Court.
13. The questions that need to be addressed are that where the respondent had not apparently committed contempt of Court, what would be the status of the present petition and whether the order passed in the writ petition would still hold the field especially when the present petition has been filed against a dead person as a sole respondent in the petition for contempt of Court and no other person has been impleaded as a respondent. The position where a case has been filed against a dead person as a sole defendant/respondent or as one of the defendants/respondents, where there is more than one, will be discussed by reference to the principles laid down in the judgments discussed hereinafter.
14. In the case reported as “Mehr Muhammad v. Deputy Settlement Commissioner and Others”, (1979 SCMR 182 = PLJ 1980 SC 97), where respondent had died long before filing of writ petition in High Court, the Honourable Supreme Court observed that petition having been filed against a dead person is incompetent and the order passed on such petition is a nullity in law and conclusion recorded on such petition in respect of merits of case was held of no significance. The relevant portion of the judgment is reproduced below:
“It is well established that any order passed against a dead person would be a nullity in law‑especially when long before the institution of the proceedings against him he had already died. In this view of the matter, the conclusion recorded by the learned Judge in the High Court, in so far as the merits of the case are concerned, would have no significance as they were recorded against a dead person.”
15. The Hon’ble Supreme Court in the case reported as “Hafiz Brothers (Pvt.) Ltd. and others v. Messrs Pakistan Industrial Credit and Investment Corporation Ltd.”, (2001 SCMR 1) held that suit instituted against a dead person was incompetent and a nullity in the eyes of law and of no avail to the concerned litigant. The operative portion is reproduced hereunder:
“8. There is no cavil with the proposition that the institution of legal proceedings against dead person is of no avail to the concerned litigant. The learned High Court rightly came to the conclusion that the suit of PICIC against deceased Mst. Inayat Begum was incompetent and, therefore, a nullity in law.”
16. This Court in the case of “Ahmed alias Ahmed Ali v. Falak Sher (Deceased) through LRs and others”, (2021 CLC 58 Lahore), held that no appeal lies against a dead person. The operative portion is reproduced below:
“6. ... It is settled law that no appeal lies against a dead person. Therefore, the time consumed during the pendency of the appeal against a dead person could not be condoned. As such, the appeal which was though filed after withdrawal of earlier one on 05.03.2019 will be considered as the first appeal and was badly barred by time as it was result of sheer negligence of the petitioner who was well within knowledge of factum of death of Falak Sher since 24.09.2005 when amended execution petition was filed but he filed the appeal on 16.01.2019 against him (dead person), therefore, it was rightly dismissed by learned lower appellate Court.
17. In another case titled “Capt. Umer Naveed Pirzada v. Rana Abdur Raheem and 3 others”, (2021 CLC 684 Lahore) this Court held that suit against a person who had already passed away was not proceedable. The operative portion of the judgment is reproduced below:
“5. ... Moreover, the institution of suit against purported agent of Respondent No. 1 Rana Abdul Ghafoor, who had already passed away, was not proceedable until and unless his LRS were impleaded. It is well established by now that decree against dead person is, otherwise nullity in the eye of law.”
18. The Sindh High Court in “Abdul Samad and 3 others v. Habib Bank Limited through President and another”, (2018 CLD 1203 Karachi), held that a suit could only be filed against a living person and any order, judgment or decree passed against a dead person is a nullity. The relevant portion is reproduced hereunder:
“4. ... The learned Banking Court failed to realize the repercussions of the decree against a dead person which is now under execution against his legal heirs. The learned Banking Court also failed to appreciate that a Suit could be filed only against a living person, and Suit against a dead person as well as any order, judgment or decree passed against a dead person in such Suit, is a nullity.
5. In view of the above discussion, the Suit filed by the Respondent No. 1-bank against deceased Defendant No. 1/principal borrower was a nullity and as such the ex parte decree passed against him in the said Suit, being null and void, is liable to be set aside.”
19. This Court in another case titled as “Nazir Ahmad v. Barkat Masih”, (2009 MLD 461 Lahore) held that judgment passed against a dead person is void ab initio. The relevant portion is reproduced below:
“5. Needless to state that a judgment passed in a case filed against a dead person is void ab initio.”
20. In “Mian Muhammad Akram and others versus Muhammad Chiragh and others” (PLD 2003 Lahore 804), this Court held that suit against a dead person is a nullity in the eye of law and likewise a decree obtained against such person suffers from the same vice.
21. Moreover, in “Imtiaz Ahmed versus Additional District Judge and 14 others” (PLD 2012 Lahore 240), this Court set aside the decree passed in the suit by allowing application under Section 12(2) C.P.C. by observing that plaintiff had obtained ex-parte decree at the back of defendants and against a dead person, whose signatures appearing on vakalatnama did not tally with his signature on suit agreement. Such ex-parte decree could not enjoy sanctity attached to a judicial order. Besides, tainted actions would be void ab initio wholly and not partly.
22. The Hon’ble Supreme Court of Pakistan in the case titled “Khadim Hussain versus Abid Hussain and others” (PLD 2009 SC 419) held that on the basis of an order against a dead person, which was obtained by playing fraud with the Court, no benefit of the same can be extended to the party, instead he deserved serious condemnation because of his such act as the litigation remained pending for a considerable period. Fraud is an intrinsic collateral act, which vitiates the most solemn proceedings of Courts of justice.
23. The Supreme Court of India in the case titled “M/s. Ashok Transport Agency v. Awadhesh Kumar and another” (AIR 1999 SC 1484), set aside the judgment passed by the High Court against a dead person by observing that decree passed against the dead person was not executable. The relevant portion is as under:
“9. In the circumstances, we are unable to uphold the impugned judgment of the High Court. In our opinion, the executing Court has rightly taken the view that the suit having been filed against the dead person, the decree was a nullity and could not be executed. The appeal is accordingly allowed, the impugned judgment of the High Court is set aside and the order passed by the executing Court is restored. No order as to costs.”
24. This Court in case titled “Muhammad Sadiq versus Settlement Commissioner and others” (1983 CLC 2550 Lahore), held that Mukhbari application filed against a dead person was not competent and his legal heirs, who had not been impleaded as a party, could not be proceeded against after repeal of Settlement Laws and such proceedings were declared null and void.
25. The perusal of the principles laid down in the afore-referred cases makes it abundantly clear that any type of proceedings, whether suit, appeal, writ petition, other applications and petitions, execution proceedings or miscellaneous application, etc. filed against a dead person are a nullity in the eyes of law and even if the matter is decided in favour of a party and against the dead person, that party could not be permitted to take benefit of the same.
26. The aforementioned principles are of course subject to certain exceptions, which may not be relevant for purpose of decision of this case, however in order to clarify the position, reference may be made to some cases discussed hereinafter including the case titled “Muhammad Javed versus Federation of Pakistan through Secretary Finance and 3 others” (2016 CLD 477), wherein the matter before Division Bench of the Sindh High Court while hearing appeal was that where the legal heir of deceased respondent/Judgment-debtor had sought setting aside of ex-parte decree passed in a Banking Suit by filing an application under Section 12(2) C.P.C. after a period of 10 years of institution of suit on the ground that the suit had been filed against a dead person, the Division Bench held that no suit lay against a dead person in the eyes of law, however, such rule was not applicable to the case where death certificate having been issued on an information of death provided to the department for issuance of death certificate many years after the alleged date of death of the respondent/Judgment-debtor, did not inspire confidence. Moreover, in the case titled “Muhammad Yaqoob versus Ali Shan and 8 others” (1994 MLD 1843), which came up for hearing before the Supreme Court of Azad Jammu and Kashmir the appeal had been filed against a dead person who had died after final arguments in the case but before passing of the judgment, which fact was not brought on the record, the Court while remanding the matter by setting aside order of abatement of appeal held that application under Section 151 CPC was competent to implead his legal representatives, subject to condonation of delay, if any.
27. The question that next arises is that when the respondent/defendant is dead, whether his legal heirs, representatives or successor in interest could be impleaded as a party to the proceedings in his place. This would envisage two types of situations (i) when the respondent died after proceedings were initiated against him and (ii) that he was already dead when the proceedings were initiated.
In the first situation there is no cavil to the legal proposition that when the respondent or defendant died after initiation of proceedings against him, his legal heirs, representatives or successor in interest can be impleaded with the exception that the cause of action was personal to the deceased and did not survive after the death of the deceased as in the cases of commission of contempt of Court by a person through any personal disobedience or action resulting in scandalizing the Court, tort, defamation, etc., for the reason that personal action dies with the person. Reliance is placed on case titled “Mir Shakeel-ur-Rehman versus Yahya Bakhtiar” (PLD 2010 SC 612), which was followed by a Division bench of this Court in case titled “Qari Muhammad Yasin vs. Abdul Latif and others” (2019 PLC (CS) 462). Further reliance is placed on judgments reported as “Mst. Sara Bai and 7 others versus Iqbal” (2006 MLD 1429 Karachi), “Government of Punjab through Secretary Ministry of Agriculture versus Mst. Kamina” (1990 CLC 404), “Mst. Nasri Begum versus Virgil L. Moore, Consular for Administration Embassy of United States of America” (1989 CLC 511), “Mercantile Cooperative Bank Ltd. versus Messrs Habib and Co. and others” (PLD 1967 Kar 755), “Sardar Muhammad Ali and others versus Pakistan” (PLD 1961 Kar 88), “M. Veerappa versus Evelyn Sequeria” (1989 MLD 3225) (Supreme Court of India), “Mahant Salig Ram versus Charan Dass and another” (AIR 1939 Lahore 492) and “Maniramlala Baliramlala versus Mt. Chattibai” (AIR 1937 Nagpur 216).
28. On the other hand, where the respondent or the defendant was dead when the proceedings were initiated, the legal position that would arise is discussed in some of the judgments mentioned herein after.
In the case of “Cuttack Municipality v. Shyamsunder Behera”, (AIR 1977 Orissa 137) it has been held as under:
“8. On the authorities cited above, it is clear that a suit filed against a dead person is a nullity and that no substitution can be made in place of the original defendant who was dead on the date of the institution of the suit.”
29. The Honourable Supreme Court in case titled “Muhammad Yar (Deceased) through L.Rs and others versus Muhammad Amin (deceased) through L.Rs and others” (2013 SCMR 464) has held that suit against a dead defendant would not be validly instituted subject to exceptions that where the defendants are more than one and all of them are not dead and one or more are alive, then the suit would be validly instituted against the alive defendants. The operative portion is reproduced below:
“…… the legal position by now is quite settled and explicit, in that, where a suit/lis is against only one defendant/respondent of the case, undoubtedly it shall be invalidly instituted being against a sole dead person (defendant) and shall be a nullity in the eyes of law as a whole; it shall be a still born suit/lis; an altogether dead matter, which cannot be revived; it shall, thus not merely be a defect which can be cured, rather fatal blow to the cause. However, the position shall be different where the lis is instituted against more than one defendants/respondents and out of them only one or few are dead while the other(s) is/are alive. In such a situation, it shall be a validly instituted suits/lis in respect of the respondent(s), who are alive, but invalid qua those, who are dead.”
30. By reiterating the principle in the judgment of Muhammad Yar case supra, the Honourable Supreme Court in case titled “Farzand Ali and another versus Khuda Bakhsh and others” (PLD 2015 SC 187), where a suit had been filed against a dead defendant, held that where a lis was initiated against more than one person out of whom one was dead, the lis as whole was not a nullity, but it was a defect which was curable.
31. This Court in case titled “Mst. Sardar Begum versus Assistant Settlement Commissioner and others” (1986 MLD 2435 Lahore) while hearing another case relating to filing of mukhbari application for cancellation of allotment filed against dead allottee, relied upon the judgment in the case of Muhammad Sadiq (supra) and observed that mukhbari application against dead allottee admittedly being nullity, hence, any subsequent prejudicial action taken against legal heirs of such deceased allottee, sought to be made party in Mukhbari proceedings with mala fide intention, long after repeal of Evacuee Laws, would not validate ab-initio void proceedings.
32. The perusal of the aforementioned judgments leads to the conclusion that where there was only one defendant or respondent and he was dead at the time of initiation of proceedings, then the proceedings against him would be similar to a ‘still born lis/suit’ with no possibility of revival, hence, nullity in the eyes of law and not proceedable at all so much so that in such proceedings legal heirs of the deceased can also not be impleaded and fresh proceedings, if permissible under the law, may be initiated. However, if there are more than one respondent or defendant and some of the respondents or defendants were alive when the proceedings are initiated, then the said lis would not be a nullity at least as against the alive respondents or defendants and the legal heirs, representatives or successors in interest of the dead respondents or defendants may, if permissible, be allowed to be impleaded as parties subject to question of limitation.
33. As already observed, through the order passed in writ petition, direction was issued to the Medical Superintendent by designation in official capacity and neither the same was directed to the respondent in his name or personal capacity nor he had held the post of Medical Superintendent on the day when the order was passed by this Court. Hence, although said order was not to be implemented by the respondent yet the said order holds the field against any person who holds that post of Medical Superintendent in due course of law. Therefore, the said order is to be implemented by the incumbent of the office and not by the respondent, who apparently had previously at one point of time held the said post but was not occupying the same either on the date when the petition was filed or when the said order was passed or at any time thereafter, rather the respondent is stated to have died much prior to the filing of the writ petition and order passed in the same. However, as the order had been passed against the person holding the office by designation, therefore, it cannot be said that the order passed in writ petition no longer held the field rather the said order is to be treated as a valid order unless set aside or varied in accordance with law.
34. In this case it is important to note that non-compliance of direction issued by the Court for decision of the matter amounts to civil contempt as defined in Section 2(a) of the Ordinance and for the purpose of proceeding in cases falling under definition of civil contempt, Section 12 of the Ordinance is relevant, which provides that proceedings for civil contempt may be initiated suo motu or at the instance of any aggrieved party. Said Section is reproduced below:
“12. Civil contempt. (1) Proceedings for civil contempt may be initiated suo motu or at the instance of an aggrieved party.
(2) The provisions contained herein are intended to be in addition to, and not in derogation of, the power of the Court under any other law for the time being in force to enforce compliance of its orders, judgments or decrees.”
35. Although, this Court has suo motu powers to initiate contempt of Court proceedings against alleged contemner, however, as in the case in hand the respondent was impleaded as only respondent in the petition for contempt of Court and no other respondent had been impleaded, therefore, the petition in hand having been filed against dead person was void ab initio as a whole and not in piecemeal, hence nullity in the eye of law and therefore substitution of the respondent by impleading incumbent would not be permissible in this petition, rather a fresh petition may be maintainable as the cause of action relating to the contempt of Court petition in the present case having arisen against the person holding the post of Medical Superintendent of the Jinnah Hospital, Lahore is still subsisting,
however, this Court would not initiate suo motu proceedings for contempt of Court against incumbent of the office of Medical Superintendent for the reason that petitioner has failed to point out who is presently holding the said position and whether the matter of the petitioner was placed before the said person for decision in terms of order dated 04.03.2022 passed by this Court and it is also not clear as to if the matter if placed before the incumbent for consideration has yet been decided or not, especially when the petitioner himself is not sure as to which specific person had to decide his representation.
36. In view of what has been discussed above, this petition is dismissed being not maintainable against a dead person with observation that the petitioner, if advised, may file fresh petition against incumbent Medical Superintendent, Jinnah Hospital, Lahore for redress of his grievance.
(Y.A.) Petition dismissed
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