P L D 1983 Supreme Court 62 (PLP)

M. S. H. QURESHI J.-Subedar Major Muhammad Umar respondent No. 2 in Letters Patent Appeal No. 27 of 1966 before the Lahore High Court, had died during the pendency of that appeal on 23-7-1969. An application tinder Order XXII, rule 4, C. P. C. had been filed on 14-2-1:970 for impleading his legal representatives. The application after meeting certain objections was finally re-filed on 30-5-1970. An application under section 5 of the Limitation Act was also made on 20-6-1970, which, too, after necessary correction was re-filed on 4-7-1970. The Learned Judges of the High Court vide their impugned judgment dared 26-2-1973 found that the appellant had not prosecuted the Letters Patent Appeal with diligence and that they; was no sufficient reason for condonation of the delay and accordingly held that in the result the said appeal stood abated on the expiry of 90 days from the date of the death of the deceased respondent.

2. For seeking leave to appeal it had been contended that the provision of Article 177 of the Limitation Act, which applied to a suit or an appeal under the Code of Civil Procedure, could not be extended to an appeal under clause 10 of the Letters Patent and that the matter would fall to be governed by the residuary Article 181 which prescribed a period of limitation of three years and as such the application made for impleading the legal heirs of the deceased respondent was in time. On these contentions, leave was granted on 18-6-1974 to examine if the High Court had been right in holding that the appellant's Letters Patent Appeal had abated.

3. The procedure for impleading the legal representatives of a deceased respondent is contained in rule 4 of Order XXII of the Code of Civil Procedure. Article 177 of the Limitation Act allows 90 days from the date of the death of a deceased defendant/respondent of making an application ` under the Code for impleading his legal representatives. This provision by virtue of Order XXII, rule 11, C. P. C. is applicable to appeals also. Where, however, no period of limitation is provided in the Limitation Act or by section 48 of the Code of Civil Procedure, the application would be governed by Article 181 of the Limitation Act which provides three years' period of limitation from the time when the right to apply accrues.

4. Mr. Mahmud Ali Kasuri, learned counsel for the appellant, conceded that where a Letters Patent Appeal arises from a suit, the provision of the Code would apply. In fact this question was settled long ago in Sabitri Thakurain v. Savi (AIR 1921 PC80), wherein it was expressed: "There is no reason why there should be any general difference between the procedure of the High Court in matters coming under the Letters Patent and its procedure in other matters." The contention, however, was that an appeal under the Letters Patent arising from writ jurisdiction was different as the same cannot be treated to be a matter under the Code and as such Article 177 of the Limitation Act would not apply. For this, he relied on Hansraj v. Dehra Dun M. E. T. Co. (AIR 1933PC63), in which it was held that: "The word `suit' ordinarily means, and apart from some context must be taken to mean, a civil proceeding instituted by the presentation of a plaint. The application of the liquidators would not be a suit within section 3, if that section stood alone; unaccompanied by the explanation." He also relied on certain Indian decisions, namely, Bhagwan Singh v. Additional Director, Consolidation (A I R 1968 Pb. 360), Babubhai v. Nandlal (A I R 1974 S C 2105) and Ram Kala v. Consolidation of Holdings (A I R 1977 Pb. 87), in which it was held that the proceeding in a writ jurisdiction was not a suit and that the provisions of the Code do not in terms govern writ proceedings. But the controversy in Pakistan in this regard was settled by this Court in Hussain Bakhsh v. Settlement Commissioner (P L D 1970 S C 1), in which it was held that the writ proceeding was a "civil matter being a civil proceeding relating to the High Court's original civil jurisdiction" and that the provision of the Code was applicable to such proceeding. This view has been consistently followed by this Court and the High Courts in Pakistan. In Makha v. Rifat Pasha (1972 S C M R 514), the Supreme Court upheld the decision of the High Court that the writ petition in the absence of the legal representatives of the deceased having been brought on record in time had abated. Even recently, in Amanullah Khan v. Member, Board of Revenue (Consolidation), Punjab (1981 S C M R 777), it was held that the Code was fully applicable to constitutional petition and that the applications for substitution of legal heirs must be made within the prescribed time.

5. Mr. Mahmud Ali Kasuri, however, relying on Chand v. Abdul Ghaffar (P L D 1965 Lah. 596), urged that the penal provisions of the Code would, at least, not apply to proceedings under the writ jurisdiction. In this cited case, it had been held that the enabling provisions of the Code are applicable to the trial of writ petitions but not those which Jay down certain penalties for failure to comply with those provisions. More specifically it had been held: "The provisions of Order XXII, rule 4, Civil Procedure Code, thus, do not apply to writ petitions and the omission on the part of the appellants to implead the legal representatives of Abdul Aziz within the time specified in Article 177 of the Limitation Act did not result in the abatement of the appeal." Much water has, however, flowed down the bridge since this ruling was given. It has not been followed, particularly after the pronouncement of this Court in Hussain Bakhsh's case. 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 I-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 the 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 Hasan v. Settlement Commissioner (P L D 1974 Lah.2859) and Jalal Din v. C. S. C., Lahore (1974 Law Notes 151). There is thus no manner of doubt that the provision of Order XXII, rule 4, C. P. C. i as also of Article 177 of the Limitation Act is applicable to an application for 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.

6. Mr. Kasuri's last contention was that on 26-2-1973 when the High Court held the Letters Patent Appeal to have abated, the Law Reforms Ordinance (XII of 1972), had already come into force, whereby the provision of the Code relating to abatement of an appeal had been omitted and as such the High Court should have implemented the spirit of the new law L instead of following the old one. There is no substance in the contention as the abatement having already set in as early as 1969, and the Law Reforms Ordinance not being retrospective in its operation; the matter had to be decided in accordance with the law as existing in 1969.

7. The appeal, therefore, fails and is accordingly dismissed with costs. s. A. H. Appeal dismissed.