1983 C I (PLP)

C. M. No. 2131/72 has been filed on 23rd May, 1972 under Order XXII, rule 3, C. P. C. for impleading some of the legal representatives of Yasin Khan petitioner No. 2 who died on 25th Feb ruary. 1972, C. M. No. 2202/73 has been filed on 4th June, 1973 under section 151 read with Order XXII, rule 3, C. P. C. for impleading other legal representatives of Yasin Khan, petitioner No

2. C. M. No. 2133/72 has been filed on 23rd May, 1972 under Order XXII, rule 9 read with section

151. C. P. C. for setting aside the abatement and for impleading the legal representatives of Ali Muhammad respondent No. 2 who died on 25th May, 1971. C. M. No. 2132/72 has been filed under 'section 3 of the Limitation Act for condonation of delay in moving the above application. C. M. No. 1860/73 has been filed on 1 I th May, 1973 under Order XXII, rule 4, C. P. C. for impleading the legal representatives of Muhammad Aslam and Muhammad Akram respondents at No. 4 who died on 8th May, 1969 and 20th September, 1970, respectively. C. M. No. 1853/73 has been filed under section 5 of the Limitation Act-for condonation of delay in the above application. C. M. No. 2146/73 has been filed under section 151, C. P. C. for dismissing the writ petition as having abated in toto. Before proceeding to dispose of the applications individually, I may deal with a number of common points raised during the hearing of the arguments

2. It was contended by Mr. Ejaz Hussain that no question of abatement could arise in view of the Law Reforms Ordinance (No. XII of 1972). New provisions were substituted by this Ordinance for sub-rule (2) of rule 3 and sub-rule (3) of rule 4 and rule 9 of Order XXII, C. P C. The effect of the amendment is that even if no application is made for impleading the legal representatives of a deceased plaintiff or defendant, the Court may proceed with the suit and make order or pronounce judgment which will have the same force and effect as if it had been made or pronounced before the death took place, and that the legal representative may apply to the Court for setting aside the order made or judgment pronounced in his absence if it is proved that he was prevented by any sufficient cause from continuing or defending the suit and the Court shall set aside the order or the judgment upon such terms as to costs or otherwise as it thinks fit. There is nothing in the relevant provision of the Ordinance to give the same a retrospective effect. Nevertheless, an alteration in the form of procedure alone is meant to operate retrospectively unless it touches upon some right already vested. Here the matter is not of a formal procedure. Abatement gives rise to valuable rights. Where rights are involved no statute is to be construed so as tai have a retrospective operation unless such a construction appears very clearly if; the terms 3f the Act or arises by necessary implication. A right vested in a law is not affected by repeal of that law. The decisions in the case of The Colonial Sugar Refining Company, Limited v, Irving, (1905) Ltd. v. Income-tax Commissioner, DON and another (A I R 1927 P. 6 242) may be referred to. Accordtng to Maxwell in his Interpretation cf Statutes 4th Ed., p. 219. a new procedure would be presumable where its appli cation would prejudice rights established under the old, or would involve a breach of faith between the parties. The same view has been consis tently adopted by our Supreme Court as reflected in the decisions reported in States v. Maulvi Muhammad Jumil and others (P L D 1965 S C 187) and Adnan Afzal v. Slier Afzal. (PLD1969SC681) A similar contention that the provisions of the Ordi nance was to operate retrospectively notwithstanding the abatement of the matter had been rejected by me in an earlier case in Writ Petition No. 592-R of 1965. The same view had been taken by my learned brother A. R. Sheikh, J. In Ghulam Haider v. Rajhhari, R. S. A. No. 325 of 1966, decided on 22nd November, 1972. 1 see no reason to make a departure. The provision of the Ordinance cannot apply in case the writ petition had abated on or before 14th April, 1972 when the Ordinance had come into force.

3. The next contention, raised by Mr. Yunus Khan was that although the subject-matter of the present writ petition was of a civil nature but it being a constitutional petition, the provision of the Civil Procedure was not applicable, and that consequently the provision of Order XXII could not be invoked. This contention is easily repelled by a reference to the rulings in Hussain Bakhsh v. Settlement Commissioner etc. (PLD1970SCI), Mumtaz Ali v. Pakistan (P L D 1971 Lah. 395). Mukha etc. v. Rifat Pasha Sheikh etc. (1972 S C M R 514) and Haji Abdul Karim v. Chief Settlcment Commissioner (P L D 1973 Lah. 325). The latter two cited authorities are also to the effect that the provision of Order XXII applies to writ petitions.

4. It was then strenuously argued by both Mr. EW Hussain and Mr. Younas Ali Khan that for the purposes of limitation. Article 181 of the Limitation Act. and not Aib;;?es 176 and 177. was applicable to r a writ petition. Article 176 prescribes the time for impleading the legal representative of a deceased plaintiff for a deceased appellant. Article 177 likewise prescribes the lime for bringing on record the legal re presentative as of a deceased defendant or of a deceased respondent. It was argued that the term "plaintiff" or defendant" could be used only in respect of a suit and the term "appellant" or "respondent" in respect of an appeal arising from such suit and that the provision of these Articles does not cover a petitioner or a respondent in a writ petition. It was submitted that a writ petition not being a suit nor appeal from a suit. an application filed to writ proceeding for implea ding legal representatives of a deceased petitioner or respondent would not be governed by Article 176 or 177 but by Article 181 which provided and which allows a period of three years from the time when a right to apply accrues. Unfortunately, the recent authorities do not support the contention. In Mukha's case' a respondent, namely, Allah Ditta had died on 19th October, 1969 and the application for impleading his legal representatives had been filed on 9th March, 1972 which was within three years. Similarly, Hagan petitioner therein had died on 20th June, 1:971 and the application for bringing his legal representatives had been filed in 1972. These applications alongwith others had been rejected by the High Court, and the writ petition had been dismissed as having abated. This decision of the High Court had been duly upheld by the Supreme Court. In another case Muhammad khan v. Muhammad Ali Khan (1970 S-C M R 50) their Lordships of the Supreme Court had similarly upheld the decision of the High Court in writ proceedings, rejecting an application filed after two years from the death . of, the respondent and had held that "the application for impleading the legal. representatives of Muhammad Ali was, therefore, clearly barred by time and rightly dismissed. In holding so, their Lordships had also observed : "Even otherwise, the time prescribed by law started to run from the death of Muhammad .Ali and not from the knowledge of the petitioner". This observation is relevant only to Articles 176, 177 and not to Article-181 where time commences, from "when the, right to apply accrues." In the case of I&Ji Atdul Karim the Division Bench had been specific on this point when it held:- "This being the law! declared, a writ, petition or Letters Patent Appeal arising from a writ petition will abate under Order XXII, C. P. C. 'if an .application of substitution of the legal represen tatives is not made ;within 90. days under Article 177 of the Limitation Act." In view of these valid and binding authorities, the points raised are no longer open to a decision by ,thiSC04rt, therefore, I hold that 1 ,. the applications where the abatement had taken place before the 14th of April; 1972 i.e. before the coming into .force of Ordinance XII of D 1972, are to be decided in the light of the- old provision of Order XXII, C. P. C. and of Articles.176 and 177 for impleading the legal represen tatives and Article 171 of the Limitation Act for setting aside the abatement. I will now take up .the. applications individually. , [C. M. No. 1241/71 with C. M. No. 1240/71 for condonation of delay.]

5. This application was filed by the writ petitioner on 29th March, 1971 under section 1.51 of the Civil Procedure Code for the inclusion of the name of petitioner No. 9 arid the names of the legal representatives of -respondents -Nos. 5 and 9 on record" The dates of their death have not been given in the application. Respondent No. 5 Abdul Rehman had admittedly died on 12th January; 1966. The date of the death of Ch. Ahmad Bakhsh respondent No. 9. has not been furnished even subsequently: The application 'in the case of respondent No.- 5.has been filed five years after the: writ petition had abated qua him. As the factum of the death of respondent No. j had been noted in the proceeding sheet of - 5th May, 1969, it has to be presumed that he had,, died before that date with the result that the writ petition had also abated as against respondent No.

9. It -is strange that no application for setting aside the abatement has been filed nor has any such prayer been included in the present .application. The application itself is under section 151 of the Civil Procedure Code although there is express pro vision under Order XXII, rule .4, C. P. C., for the purpose. It was held F by a Division Bench in Karamatullah v. Government of West Pakistan (P L D 1967 Lah. 171). "There is abundant authority for the propositions that section 151 does not apply where there is express provision in the Code dealing with the particular matter." There is also no application or prayer for setting aside the abatement. The application is simply for impleading the legal representatives of respondents Nos. 5 and

9. There being no prayer for setting aside the abatement, the filing of the application under section 5 of the Limita tion Act is of no help because that section is not applicable to an application for impleading legal representatives of a deceased respondent vide Haji Dad Shah etc. v. Muhammad Fazal etc. (P L D 1971 Quetta 69) It was held in Janakinath Singha Ray v. Nirodbaran Ray and others. (A I R 1930 Cal. 422.): "That inasmuch as in application for substitution filed in December, 1920, no dates were given of the death of the defendant, nor when the plaintiff came to know of it, nor were any grounds given entitling the plaintiff to an extension- of the period of limitation the application for substitution could not be treated as an application for setting aside the abatement under Order XXII, rule

9. Hence the application for setting aside the abatement was barred by time." In the case of Haji Abdul Karim it has been observed. "An application for impleading the representatives can be made only before the appeal abates. The application of the appellant (C. M.4122 of 1967) was moved when the appeal had already abated and consequently the order of the Court ..in this application per mitting to implead the legal representatives was a nullity and did not exist in the eye of law." The present application also suffers from similar infirmities. The dates of death of deceased respondents have not been given, nor has sufficient cause been shown for condoning the delay. It is admitted that - counsel for the applicants had received direction of the Court on 19th May, 1969 for taking immediate steps to have the legal repre sentatives of the deceased respondents brought on record. All that has been said is that the applicants could not succeed in time in ascer taining, the addresses of the legal representatives. The applications there fore fail. The writ petition stands abated against respondents Nos. 5 and 9. [C. M. No. 2133/72 with C. M. 2132/72 for condonation of delay)

6. This application was filed on 23rd May, 1972 under Order XXII rule 4 read with section 151, C. P.. C. for setting aside the abatement and for impleading the legal representatives of Ali Muhammad respon dent No. 2, who died on 25th January, 1971. The application is accom panied with an application for condoning the delay. The abatement had taken place on or about 25th April, 1971. The application should have been filed within 60 days. There is thus a delay of nearly eleven months in filing the application. The plea taken is that the appli cants had no knowledge of the death of Ali Muhammad, respon dent No.

2. This plea is not tenable because the death of respon dent No. 2 had been noted by the Court in the proceeding-sheet of 25th March, 1971 and Mr. M. Younas Khan learned counsel for the applicants, had -appeared on the next date, i. e., the 30th of March, 1971, and again on 31st March, 1971. It has to be presumed on the basis of the record that the death had come to the knowledge of the applicants through their counsel. There is thus no sufficient cause for condoning the delay. The applications fail and are accordingly rejected. The result is that the writ petition as against respondent No. 2. stands abated. [C. M. No. 1860/73 with C. M. No. 1853/73 for condonation of delay)

7. The application was filed on 11th May, 1973 under Order XXII, rule 4 of the Civil Procedure Code for substitution of legal represen tatives of Muhammad Aslam and Muhammad Akram respondents at No. 4 deceased Muhammad Aslam had died on 8th May, 1968 and Muhammad Akram on 20th September, 1970. The application was, therefore, filed long after the abatement of the matter. The plea taken in the application for condonation of delay is that the applicants .had come to know of the deaths of the two respondents on 9th May, 1973 for the first time. This assertion is contradicted by the record because the deaths of the two respondents had been duly noted in the pro ceeding sheet of 25th March, 1971 and 31st March, 1971. On the letter date. Mr. M. Younas Khan, counsel for the applicants, had himself appeared in Court. There is also no application or prayer. for setting aside the abatement. In these circumstances, the application for implead ing the legal representatives only, is thus rejected. The writ petition thus stands abated as against these deceased respondents also. 1C. M. No. 2146/731

8. In view of the above, I may now advert to the application (C. M. No. 2146/73) wherein it has been prayed that the writ petition be dismissed as having abated in toto. It appears that the disputed property bearing No. S. 19-R-61 and S. 19-R-65 known as Chopra Build ing, 54, The Mall, Lahore, had been disposed of in three portions i.e., (i) S-19-R-61, (ii) S-19-R-65 from Hopson & Co. to S. Rollo Photographers and (iii) S. 19-R-65 from London House to Kashmir House (vide Annexures 'C', `C-1' and 'C-2'). The successful bidders had bid jointly in the auction of the property. The deceased respondents Ali Muhammad, Abdur Rehman, Aslam and Akram had been among the successful bidders in all those three bids. Since they had jointly bid with the other bidders and since the auction has been challenged- to the present writ petition, the writ petition having abated against the said deceased respondents .cannot proceed now against the other respondents. This is thus a case of total abatement. The application (C. M. No. 2146/73) is therefore allowed and the writ petition is held to have totally abated. There will be no order as to costs. .. K. M. A. Order accordingly