1983 PLP 16 (CLC)

ABDUL MAJEED MALLICK, ACTG. J.-This appeal, originally moved as letters patent appeal before the High Court (Division Bench), later on trans ferred to the Judicial Board, now Supreme Court, arises out of the judgment of the High Court, dated 23rd December, 1967, whereby findings of the District Judge were maintained.

2. The number of plaintiffs, who instituted suit, was seventeen. plaintiff-respondents died during the pendency of this appeal. Mst. Zaitoon died on 27-I2-1972, Jamal Din on 22-2-1975, Nizam Din on 18-8-1975, Mst. Sakina on 6-1-1976, Nizam Din son of Jiwan on Mst. Hussain Jan and Mst. Qalandra also died in 1975, but exact date of their death is not given. Appellants applied for impleading legal representatives of Mst. Hussan Jan, Jamal Din, Mst.Zaitoon Bibi, Nizam Din, and Mst. Qalandra, on 1st December, 1975, to implead legal heirs of Mst. Sakina, Mst. Hussan Jan and Nizam Din son of Jiwan on 31st October, 1977 and 25th February, 1977, respectively. In all the applications appellants have claimed ignorance of time of death of the said respondents for their living at a distance from the village of deceased respondents, The applications are not supported by affidavits or other evidence, Respondents have contested the applications through written objections accompanied by affidavits and death certificates of three respondents.

3. Mr. T. H. Tariq, the learned counsel for the appellants, contended that despite failure to implead legal representatives of the deceased respondents in time, appeal would continue. He argued that estate of the deceased respondents was sufficiently represented by the surviving respondents and that being so the appeal has not abated. To support his argument he relied on Mst.. Afzal Begum and others v. Y. M. C. A, through its General Secretary (P L D 1979 S C 18) ; Khushi Muhammad v. Mst. Aziz Bibi (1980 S C M R 531) ; Muhammad Bakhsh and 23 others v. Jamal and 6 others (P L D 1969 Lah. 642) and Dinar Trading Co. v. Allah Bux and others (P L D 1965 Kar. 36). Syed Ghulam Hussain Shah, the learned counsel for the respondents, seriously opposed the continuation of appeal. He argued that decree under appeal being joint and indivisible, on death of some of the respondents and on the failure of the appellants to implead legal heirs of the deceased respondents within time, the appeal has abated in toto. He cited Muhammad Shafi v. Inayat and others (1968 S C M R 329) ; Nawab Karim v. The Chief Settlement Commissioner and 2 others (1970 S C M R 72) Shah Muhammad and others v. Muhammad Bakhsh (PLD1972SC321) and Ghulam Mustafa and 2 others v. Ashraf Din (PLD1979AzadJ&K71).

4. To grasp the issue debated at the bar and the legal position the leading facts of the case may be narrated. The plaintiffs brought a suit for perpetual injunction to the effect that they irrigated their lands through Chishma Dhaya, situate in Village Doha; for the last more than hundred years and defendants, who attempted to diver; the water, be restrained from interrupting inflow of the water for their use and thereby depriving plaintiffs from irrigation of their lands. The trial Court dismissed the suit, but on appeal to the District Judge, the learned District Judge on recording additional evidence of local Patwan accepted the appeal and decreed the plaintiffs' suit. The findings were maintained by the learned Acting Chief Justice of tire High Court. The decree of the District Judge is couched in the following terms:-

5. In the first instance we would like to examine the case law cited by the learned counsel for the parties. In Mst. Afzal Begum and others v. Y. M. C. A. through its General Secretary, some legal representatives of deceased respondent were already on record. Son of a predeceased daughter of deceased respondent was not brought on record whereupon it was held that when legal representatives of the deceased were already on record the appeal could not result in abatement for failure to implead one of such legal heirs, because the estate of deceased respondent was effectively represented by the surviving respondents. The observation is reproduced as:- "The learned counsel next argued before us that Mst. Hajra Begum had died during the pendency of the appeal but her legal representatives were not brought on the record and thereby the appeal of the respondent had itself abated in toto and was a nullity in the eye of law. But this contention has no force. It appears that Mst. Hajra Begum one of the respondents in the appeal before the High Court had died in the year 1968. Petitioners Nos. 3 to 7 herein, her legal representatives, were already on the record. However, the name of Sheikh Inam Ilahi, a son of her predeceased daughter, was not brought on the record as another legal representative of the deceased. In this connection. the learned Single Judge was of the opinion that under the Muhammadan Law he being a predeceased daughter's son of Mst. Hajra Begum, was not entitled to succeed to her. But evidently in arriving at this conclusion his attention was not drawn to the provisions contained in Section 4 of the Muslim Family Laws Ordinance VIII of 1961. In spite of this in my opinion, the estate of Mst. Hajra Begum deceased was effectively represented by the remaining respondents 3 to 7 already on the record of the appeal and this failure on the part of the appellant to implead Sh. Inam Ilahi as her legal representative did not result in the abatement of the appeal."

6. In Dinar Trading Co. v. Allah Bux and others some of the legal representatives of the deceased were brought on record in time on which it was observed that if a party had taken proper steps to substitute the representatives of an adversary who bad died pendente lite he cannot be penalised because he has not brought on record the whole of the representatives. The observation is reproduced below:- "In my opinion the contention of the appellant's counsel is not without force. It is well-settled rule of law that if a party has taken proper steps to substitute ran record the representatives of an adversary who had died pendente life he cannot be penalised because he has brought on record the whole of the representatives. The underlying principle in such cases is that a party can only act to the best of his knowledge." The other authorities cited by the learned counsel for the appellant are not relevant to the case in hand. In Khushi Muhammad v. Mst. Aziz Bibi proposition under consideration was on different point. The said case need not to be discussed. In Mst. Afzal Begum and others v. Y. M. C. A. through its General Secretary some of the legal representatives of deceased respondent were already on record. One of the legal heirs,' whose whereabouts were unknown, was left out. It was in that state of facts that the learned Judge held that the estate of deceased was effectively represented by the surviving respondents and as such allowed the appeal to continue. In 'Diner Trading Co. v. Allah Bux and others on the death of respondent, appellant moved for the substitution of the legal representatives in time. Despite acting to the best of his knowledge one of the legal heirs was left out. The learned Judge was justified to allow the continuation of the appeal under the circumstances.

7. In Elahi Bakhsh v. Budha and another (1968 S C M R 328) it was held that on failure to bring on record the legal heirs of deceased respondent, within time, a valuable legal right accrued to legal representatives which should not be interfered with lightly. It was held that :- "The result. therefore, is that within the time allowed by law, the legal representatives of the sole deceased respondent have not been brought on record. Mr. Muhammad Anwar, on the respondent, claims that the respondent's legal representatives have gained a valuable legal right which should not be interfered with lightly. We see considerable force in this contention. We, therefore, dismiss the petition for bring ing the legal representatives of Budha on the record, as being out of time, with the result that the appeal fails and is hereby dismissed. In the circumstances we make no order as to costs."

1. In Shah Muhammad and others v. Muhammad Bakhsh it was observed as:- "To determine the question of the abatement of the appeal, one has necessarily to consider whether the decree was indivisible or not. We had, therefore, called for the records of the trial Court and having examined the pleadings in this case are satisfied that the case as made out there was that the defendants (now appellants) were jointly occupying a portion of the premises. There was no case made out either in the plaint or in the written statement of separate occupation of separate parts of the premises in dispute. In the circumstances, we are satisfied that the Courts below were right in taking the view that the decree was indivisible and each one of the appellants was a necessary party to, the appeal and in, the absence of anyone of them the decree could riot be varied or altered. The death of one such party without substitution of his heirs was, therefore, rightly held to have resulted in the total abatement of the appeal."

9. In Ghulam Mustafa and 2 others v. Ashraf Din during the pendency of appeal in the High Court one of the appellants died. The application, to implead the legal representatives of the deceased appellant, was moved beyond time. The application was opposed, in consequence of which it was observed as :- "So far as the application of the appellants dated 20-6-1978 for implead ing the legal representatives of Mst. Tahira Begum is concerned we find that it is hopelessly time-barred. The respondent's claim supported by an affidavit that Mst. Tahira Begum died on 16-12-1977 has not been controverted by the appellants. Their application does not contain any reasonable ; ground for condoning the delay. Nay there is no prayer even for condonation of delay. Even the prayer for impleading the legal representatives of Mst. Tahira Bagum as per para. 2 of the application is conditional i.e. if the Court finds that it is necessary to implead her legal representatives, then the appellants may be allowed to implead them. The learned counsel for the appellants understand ably could not take the plea that the appellants did not know about the existence of the two daughters of Mst. Tahira Begum as being her legal representative because it was on this very basis, it appears, that the appellants got the suit of the respondent dismissed for non-impleading the two daughters, Mst. Torat Begum and Mst. Begum lee. This argument- has now boomranged on the appellants and they cannot escape its legal effects which they themselves invoked in the Courts below against the respondent. It is true that Civil Procedure Code does not apply to the proceedings before us but Order XIV, rules 7 and 8 of the Supreme Court Rules are very much applicable which require that the legal representative of an appellant or respondent who has died or suffered a change of status should be brought on record within 90 days of such occurrence. Of course, the Court can, for sufficient cause, extend the time. As already stated, the appellants have neither prayed for extension of time nor given any sufficient reasons for the delay in filing the application even when the respondent had moved an application intimating the death and its date concerning Mst. Tahira Begum on 5-6-1978. Thus, we uphold the objection raised by the learned counsel for the respondent and dismiss the appeal with costs for the reasons stated above."

10. On reading the authorities, cited by the learned counsel for the parties, the points that emerge are :- (i) When the estate of the deceased respondent is represented by some of the surviving respondents ; failure to implead one of the heirs, in time, for lack of knowledge, would not cause abatement of appeal ; (ii) On the death of respondent, when appellant takes all steps to implead legal representatives, within time, the appeal would not abate on account of an omission to bring on record all the heirs, whose where abouts and particulars were not known to the appellant ; (iii) That on failure to bring on record legal representatives of a sole respondent, within time, a valuable legal right gained by the legal representatives should not be interfered with lightly ; (iv) That on the death of one of the respondents, to determine the, question of abatement of appeal one has necessarily to consider whether the decree is indivisible or not? When the decree is found joint and indivisible. On omission to substitute legal representatives, in time, the appeal shall abate in toto? (v) The other test to the determination of the question of abatement o appeal in part or as a whole is that in case of acceptance of appeal there was no likelihood of coming into existence of two inconsistent and contradictory decrees, on failure to implead legal heirs, within time, the appeal shall abate to the extent of deceased respondent. Conversely, on acceptance of appeal when two inconsistent decree were likely to come into existence, an omission to implead legal heir of deceased respondent would cause abatement of appeal as a whole; and (vi) That in the absence of prayer for extension of time and sufficient reasons for condonation of delay, the Supreme Court shall be slow to condone the delay and extend time in exercise of its discretion."

11. The present case is obviously distinguishable from the aforesaid cases. As pointed out earlier, in the present case appellants failed to substitute anyone of the legal heirs of deceased respondents within time.

12. The decree passed in favour of the respondents, herein, is in the nature of perpetual injunction. Appellants are restrained from interrupting the inflow of the water of Chishma to the lands of plaintiff-respondents and diverting it to their own lands. Thus, the decree on the face of it is join only against the surviving respondents, on acceptance of appeal, likelihood of coming into existence of two inconsistent and contradictory decrees, can hardly be avoided. The effect of aforesaid position necessarily leads to an inference that the appeal cannot be allowed to continue against the surviving respondents. The result obviously is that the appeal abates as a whole.

13. We have already noticed that applications for impleading legal representatives of deceased respondents were beyond time. The learned counsel for the appellants has not pressed for condonation of delay and extension of time. The cause for filing applications beyond time is not supported by affidavit or other evidence. As a matter of fact the learned counsel for the appellants has not shown interest and concern to seek condonation of delay. Under these circumstances the question of extension of time loses importance:

14. Mst. Qallandra is the only respondent whose legal heirs are already on record. None of the surviving respondents represented the estate of other six deceased respondents. Therefore, so far as the other six respondents are concerned, in absence of legal heirs, in whose benefit decree in question enures, decree has become final. In other words the decree passed in favour of deceased respondents is an accomplished fact. Unless this accomplished fact is undone or decree is reversed, the effect and operation of decree cannot be stopped. In view of the aforesaid circumstances it is held that failure to bring on record the legal representatives of the deceased respondents, within time, has rendered abatement of the appeal. The appeal is, therefore, dismissed with costs. S. Q. Appeal dismissed.