1987 PLP 289 (SCMR)

SAAD SAOOD JAN, J.‑‑This appeal by special leave is from the order of a Division Bench of the Lahore High Court whereby the appeal of the appellant was dismissed on the ground that it stood abated.

2. On the basis of an auction held by the Settlement authorities Hafiz Mahmood Ali obtained transfer of a Flour Mill situate in Multan. Despite this transfer the Settlement authorities transferred a part of a building situate within the premises of the Mill to the appellant. Hafiz Mahmood Ali filed a writ petition in the High Court challenging the transfer made in favour of the appellant. By his judgment and order, dated 11‑1‑1966, a learned Single Judge in the High Court accepted the petition and declared the transfer made in favour of the appellant to be without any legal effect. From the order of the learned Single Judge the appellant filed a Letter Patent Appeal on 23‑1‑1971. While the appeal was still pending. Hafiz Mahmood Ali died. The appellant did not make any application for impleading his legal representatives within the prescribed period. Consequently the appeal stood abated.

3. On 24‑10‑1973, the appellant moved four applications in the High Court. Two were for setting aside the abatement and imp leading the legal representatives of Hafiz Mahmood Ali and the other two were for condo nation of the delay in making the said applications. In support of his applications for condo nation of delay he alleged that he had remained unaware of the death of Hafiz Mahmood Ali and that it was only on 18‑10‑1973 when the appeal came up for hearing before the High Court that he learnt about his demise. All the applications were resisted by the legal representatives of Hafiz Mahmood Ali. The learned Judges in the High Court before whom the applications were laid did not accept the version of the appellant and held that no justification for condo nation of delay had been made out. 4.In support of their finding the learned Judges in the High Court relied upon the following circumstances:‑ (i) Both the appellant and Hafiz Mahmood Ali were in possession of different portions of the same property; (ii) In the memorandum of appeal, the appellant had given the same address for himself as he had for Hafiz Mahmood Ali; (iii) Both the appellant and Hafiz Mahmood Ali had been litigating for a long time; it was, therefore, unlikely that the appellant would have remained unaware of the death of his rival for long. The question whether the appellant did not receive knowledge about the death of Hafiz Mahmood Ali till shortly before he moved the application for setting aside the abatement was one of fact. This Court would not ordinarily interfere with such a finding. In support of this appeal it is contended by the appellant that the learned Judges were wrong in holding that he and Hafiz Mahmood Ali were in occupation of different portions of the same property. To substantiate this contention he has relied upon a copy of the death certificate of Hafiz Mahmood Ali. From this certificate it appears that Hafiz Mahmood Ali had died in Mohallah Latoo. In reply the learned counsel for the respondents has pointed out that the said Mohallah is only about a hundred yards from the place where the appellant lived. It need hardly by added that a distance of a hundred yards is not too far to have prevented the appellant from immediately coming to know of the death of his old rival.

5. It will thus appear that the learned Judges in the High Court had good grounds for holding that the appellant had not been able to show sufficient cause for condo nation of delay in applying for setting‑aside of the abatement. We would accordingly dismiss this appeal. The parties will bear their own costs. S. Q. Appeal dismissed.