1973 PLP 286 (SCMR)

HAMOODUR RAHMAN, C. J: One, Abdul Manan, instituted a suit for possession by pre‑emption on the 4th of February 1969, against the petitioner. Abdul Manan died on the 11th of May 1969, but the case proceeded without anybody bringing this fact to the notice of the Court. Subsequently on the 29th of September 1969, Abdul Latif, a son and attorney of Abdul Manan, applied to the Court for impleading the legal representatives of Abdul Manan, alleging that he had died only a few day back. The petitioner contested this application on the ground that the suit had already abated by the non‑substitution of the heirs of Abdul Manan within 90 days of his death. The trial Court held that the suit had abated, as Abdul Manan had died on the 11th of May 1969. On appeal, however, the Additional District Judge, Mardan, came to a contrary conclusion on the ground that the petitioner had failed to prove that Abdul N4anaA had died more than 90 days before the submission of the application by Abdul Latif. The abatement order was, accordingly, set aside and the suit was remanded back for trial on merits. The petitioner came up in revision to the Peshawar High Court and a learned Single Judge of the said Court held that the Additional District Judge had misread the evidence which clearly established that Abdul Marian had died on the 11th of May 1969 and, therefore, the trial Court had rightly held that the suit had abated, as the application for bringing the legal representatives on the record had not been made within 90 days of the death of Abdul Manan. Nevertheless, the High Court in revision did not think it necessary to interfere with the order of the Additional District Judge, on the ground that the application could be treated as an application for setting aside the abatement and substituting the heirs of the deceased Abdul Manan. This application for setting aside the abatement was well within time and, therefore, the Court could, in its discretion, set aside the abatement and bring the legal representatives on the record, if it was satisfied that the failure to implead the legal representatives within time had been due to a genuine misunderstanding as to the legal position and if the application for setting aside the abatement had been made diligently within the time allowed for the purpose. There can be no manner of doubt that if the application could be treated as a combined application for setting aside the abate ment and impleading the legal representatives of the deceased plaintiff, then that application was well within time having been moved within 60 days of the abatement. The parties in this case are illiterate persons who may well have been misled by the failure on the part of the other side to take any objection to the suit proceeding even after the death of Abdul Manan. In the circumstances, it cannot be said that the discretion of the High Court in treating the application as a combined application and setting aside the abatement had been wrongly exercised. We see no reason, therefore, to interfere and, accordingly, dismiss this petition. Leave refused.