1987 PLP 2867 (MLD)

Nawab alias Nabu claimed himself to be an occupancy tenant of the land in question under the respondent province, which somehow resumed it by Mutation No.343 dated 26-8-1941. He brought a suit, out of which the present R . S. A . arose, for a declaration that no order of resumption was at all passed and assuming there was any, he was not afforded an opportunity envisaged by Section 24 of the Colonization of Government Lands (Punjab) Act, 1912, of showing cause against it. The suit was resisted and was ultimately dismissed. So also the appeal failed and he came up in the Regular Second Appeal. During its pendency he died on 14-2-1966 and it was thereafter that confusion cropped up resulting in the present morass.

2. Almost in a month or so, that is on 19-3-1966, his widow obtained his death certificate and handed it over to her counsel presumably for bringing legal heirs on record. Her counsel filed C.M. No.803 of 1966 on 16-7-1966, but the prayer made therein was to implead the deceased's widow and four minor sons as parties. For reasons, he did not straightaway ask for bringing them on the record as legal representatives of the deceased. The Court allowed this application on 19-1-1967 "subject to all just exceptions".

3. Later the respondents moved C.M.No.76 of 1967 on 24-1-1967 taking objections that (1) two minor daughters Mst. Sahib and Mst. Fateh of the deceased were omitted from being impleaded, (ii) no guardian ad litem for the four minor sons was appointed, (iii) the C.M.803 of 1966 was beyond limitation and (iv) the R.S.A. had abated and stood dismissed. Instead of disposing of this petition forthwith, the Court directed that it shall be taken up alongwith the main appeal. Incidentally it was lost sight of when the R.S.A. was accepted on 2-2-1980. Review Application .No.20/C of 1980 was filed pointing out that the R . S . A . could not have been finally decided on merits without first determining the question of its abatement as raised in the above mentioned C.M. Consequently the review application was allowed directing to first decide the point of abatement of the appeal.

4. The appellants finding themselves in such a tricky situation, moved on 4-5-1986 C.M. No.2343-C/1986 for getting C.M. No.803-C/ 1966 treated as one for bringing legal representatives of the deceased on record rather than their joinder as parties. They also prayed concomitantly in C.M. No.2344-C/1986 of even date for condonation of delay agitating primarily that it was the counsel who committed a mistake in giving a wrong shape to their grievance and that personally ?they were at no fault particularly when the widow had supplied the death entry of the deceased to the counsel as early as 19-13-1966. They added that one of them being an illiterate Pardah Nashin widow and others being minors, may not be denied justice on a mere technicality.

5. The respondents opposed these petitions maintaining that wrong advice by a counsel was no ground for showing indulgence and that in any event the application for condonation of delay could .not be made twenty years after filing C . M . No. 803-C / 1966. According to them, both should have been made simultaneously.

6. Something went wrong with the counsel in preferring the course of impleading the heirs of the deceased as independent or additional parties. It was a case of mere substitution of the deceased by hi legal representatives. This was what Order XXII, rule 4 contemplates. Since the so-called occupancy tenancy was an inheritable right a per section 19-A of the Colonization of Government Lands (Punjab) Act,1912, the right to sue survived in favour of legal representative of the deceased, and they had to be simply brought on the record. Counsel for the appellants misdirected himself in making, them a parties through formal joinder.

7. Whereas joinder was not controlled by any limitation, bringing legal representatives on record was subject to limitation of 90 days under Article 176, of -the Limitation Act starting from the date of death of the deceased C.M.No.803-/1966, could have been filed latest on 15-5-1966, but it was in fact, over on 16-7-1966. Obviously it was somewhat 60 days beyond the prescribed period of limitation. It was for joinder of the appellants, but assuming that in effect it was for bringing the legal representatives on record in place of the deceased, it was hopelessly barred by time. No explanation for such a long delay vas offered till 4-5-1986 when C.M.No.2344-C/1986, was made under section 5 of the Limitation Act, for condoning the delay Reliance was placed on Zi4-ul-Haq v, Dr. A. Brabxnt and others PLD 1962 (W.P.) Peshawar; 21 at page 27). Abdul Khaliq, etc. v. Fazal-ur-Rehman, etc. (P L'' D 1967 Peshawar 186) and Qazi Manzoor Ahmad v. The Deputy Settlement Commissioner, etc. (1983' P S C 105) for the view that a prayer for condonation of lapse of time made much after filing the petition was not visualized. The rule seems t be intractable leaving no room for entertaining it subsequently muchless twenty years after filing the main petition. The appellants' course did not show necessary vigilance but then they are bound by his failings. These failures were in fact quite successive e.g. not movin a proper application, secondly, moving the same beyond limitation, B thirdly, not explaining the delay, fourthly, not making an application concomitantly for its condonation and fifthly, asking for condonation twenty years after making the application, were such events in a trial as little justify indulgence. It was rather compassionately urged that a counsel's mistake may not be allowed to work harshly against an illiterate Pardah Nashin lady or minor children and that they had some claim at least in equity to benevolent treatment rather than punished on a technicality.

8. In a way it was delay of twenty years. Each day's delay was to be explained. Counsel showed ignorance of law, which reason can hardly be accepted. Law is, supposed to be known to all. It is a time old maxim based upon a trite principle of justice. Applying it to the appellants' case their C.M.No.803/1966, is barred by time. Condonation, of delay asked for twenty years after the event by means of C.M.No.2344-C/1986, was equally unavailing. Both these C.Ms. are dismissed. As a corollary the respondents' C.M. No.76 of 1967 succeeds and the R.S.A. abated.

9. Two minor daughters of the deceased Nabu, were not impleade6 and one does not know why? This omission had a clear effect of abating the appeal totally as the occupancy tenancy in state land surviving in favour of legal representatives may not be divisible qua each respective heir. M. Y. H . /N-75/L?????????????????????????????????????????????????????????????????? Appeal dismissed.