1985 PLP 1359 (SCMR)

Mian Saeedur Rehman Farrukh, Advocate Supreme Court, Muhammad Ghani, Advocate Supreme Court and Sh. Salahuddin, Advocate‑on‑Record for Respondents. Shahzad Jahangir, Advocate Supreme Court for Respondent No.l. Date of hearing: 27th October, 1984. NASIM HASAN SHAH, J.‑‑By his order, dated 8‑10‑1973 a learned Single Judge of the Lahore High Court held that Writ Petition No. 54/R of 1965 jointly filed by the petitioners, or as the case may be, their predecessor‑in‑interest in the aforesaid petition had abated totally, because of their failure to bring on record the representatives of one of the writ petitioners and the legal representatives of some of the respondents to that petition‑‑who had died since the institution of the writ petition‑‑within the period of limitation prescribed by Article 177 of the Limitation Act, 1908.

2. The above order of the learned Single Judge was challenged in this Court by filing a leave petition and it was contended that Article 177 of the Limitation Act, 1908, which prescribes the limitation of 90 days in the relevant regard, applies only to a suit or an appeal under A the Civil Procedure Code and does not include a constitutional petition to which the residuary Article 181 of the Limitation Act, which prescribes the period of three years, is applicable. It was also contended that because of the amendment made by the Law Reforms Ordinance, 1972 in rules 3(2), 4(3) and 9 of Order XXII, C.P.C., no question could possibly arise of the abatement. In order to consider these questions leave to appeal was granted by this Court on 14‑6‑1974.

3. The above questions are no longer res integra. This Court considered the nature of the proceedings under Article 98 of the 1962‑Constitution‑‑under which Article the writ petition in the present case was also filed in the High Court in Hussain Bakhsh v. Settlement Commissioner, Rawalpindi, P L D 1970 S C 1 and found that a proceeding under Article 98 of the Constitution relating to a civil matter was a civil proceeding, even though the High Court's jurisdiction in such a proceeding was a constitutional jurisdiction of an original kind. It added that "a civil proceeding in a Court of civil jurisdiction is governed by the Code of Civil Procedure. By virtue of section 117 of the Code, a civil proceeding in a High Court is also governed by the provisions of the Code other than the provisions which are specially excepted" and went on to hold that the High Court had the power under clause (b) of section 114 of the Code of Civil Procedure to review an order in a civil matter made in its writ jurisdiction.

4. The precise question of whether writ petition could abate as envisaged by rules 3 and 4 of Order XXII came up for consideration in Abdul Ghani v. Settlement Commissioner 1971 S C M R 98 and it was held that these provisions did apply to a writ petition and that an application for substitution of legal heirs should be made within the time. The same view was taken in some subsequent case well; see for example Amanullah Khan etc. v. Member Board of Revenue 1981 SCMR 777.

5. However, it was argued before us that in these cases the question whether Article 177 of the Limitation Act or Article 181 thereof applied in such cases was not examined. This submission, so far as it goes, is correct but we find that in a subsequent case, namely, Sardar Noor v. Chief Settlement Commissioner etc. P L D 1983 S C 62, this question has been discussed and it was found that the provisions of Article 177 of the Limitation Act were applicable. The following observation made in this connection may be reproduced here with advantage: "If the Code is applicable to a proceeding under the writ jurisdiction, it ought to apply also to a Letters Patent Appeal arising from that jurisdiction, particularly in view of Rule 16 of Chapter 1‑C of the High Court Rules and Orders, Volume v, which reads: 'The foregoing rules shall apply to all proceedings of a civil nature, other than suits or appeals, to which Order XXII of the Code of Civil Procedure is applicable.' In Abdul Ghani v. Settlement Commissioner 1971 S C M R 98, this Court held in case of a Letters Patent Appeal arising from a writ petition that the application for substitution of legal heirs of one of the respondents was to be made within the prescribed time. The same view had been taken in the case of similar Letters Patent Appeals in Abdul Karim v. Chief Settlement Commissioner P L D 1973 Lah. 325; Ghulam Rasool v Chiragh Din P L D 1973 Lah. 567; Sirajul Hassan v. Settlement Commissioner P L D 1974 Lah. 285 and Jalal Din v . Chief Settlement Commissioner, Lahore 1983 C L C 2565. There is, thus, no manner of doubt that the provision of Order XVII, rule 4, C.P.C. as of Article 177 of the Limitation Act is applicable to an application or bringing on record the legal representatives of a deceased respondent in an appeal under the Letters Patent and if a party wishes to invoke any of the enabling provisions of the Code, it must comply with the conditions attaching thereto for doing so and in case of failure to comply, to suffer the necessary consequences." We are in respectful agreement with this view.

6. As for the second contention that on account of the amendment made in rules 3(2), 4(3) and 9 of Order XXII, C.P.C. no question of abatement could possibly arise, we may observe that this question also arose in the case of Sardar Noor v. Chief Settlement Commissioner etc. aforecited, wherein it was held that the provisions of the Law Reforms Ordinance, 1972 (Ordinance XII of 1972) were not retrospective Since one of the writ petitioners, as well as two respondents had admittedly died several years before the coming into force of the Law Reforms Ordinance, 1972 and no application for impleading their legal heirs was filed within the prescribed period of limitation, the writ petition had already abated when Ordinance XII of 1972 came into force. Hence the appellants herein cannot take any advantage of the amendment made by the aforesaid Law Reforms Ordinance, 1972 in rules 3(2), 4(3) and 9 of Order XXII of the Civil Procedure Code. The result is that this appeal fails and is, accordingly hereby dismissed with costs. M.I. Appeal dismissed.