P L D 1975 Karachi 96 (PLP)

TUFAIL ALI A. REHMAN, C. J.‑These three applications all filed by the appellant arise in the following circumstances. Admittedly on the 270 May 1973, the sole respondent in this case died and on the 11th October 1973, ‑the appellant filed an application (C. M. A. 1573/73) under Order XXII, :rule 9, C. P. C. praying that the abatement of the appeal may be set aside. With this application was filed another (C. M. A. 1569/73) under section 5 of ,the Limitation Act praying that the delay in filing the other application .might be condoned. In view of the position at law which both parties have argued it is worth noticing that the type script of the application under ,Order XXII, rule 9 talks of "the abatement of the above appeal which has abated" but the words "which has" been deleted by hand and the word "it" substituted. The application under the Limitation Act read as follows "Application under section 5 of Limitation Act read with section 151 of C. P. C. For reasons disclosed in the accompanying affidavit, it is respectfully prayed on behalf of the appellant that the Hon'ble Court be pleased to condone the delay in bringing the legal representative of the respondent who died on ? 7‑5‑‑73 and to permit the appellant to bring on record Mrs. Amin Yusuf Nizami residing at B/33, Block H, North Nazimabad, Karachi, along with her two minor children whose names are unascertainable." In this also all the words occurring after the words "the delay in" have been .deleted and the words "making the application for setting aside abatement of ,above appeal", added. Another application also is before us, namely, C. M. A. 1571/73, which, although it bears a subsequent number, is dated earlier that is the 19th of September 1973 ; this is an application under Order XXII, rule 4 praying that the legal representative of the respondent, namely, Mrs. Amin Yusuf Nizami, presumably the wife of the respondent, ,be added and that she be asked to state the names of the two minors.

2. The question in controversy before us is purely legal and depends upon the applicability or otherwise of the Law Reforms Ordinance (Ordinance XII of 1972) which came into force on the 14th April 1972, to Letters Patent Appeals pending at the time of the promulgation of that Ordinance. We have heard Mr. Mohsin Tyebali for the appellant who argues that they are as also Mr. Iqbal Kazi for the respondent whose contention has been that they do not so apply ; we are also indebted to the learned Advocate‑General of Sind who at our request appeared to argue the question and who has supported the appellant.

3. The position as it stood before the Ordinance was governed by rules 3 and 4 of Order XXII of the Civil Procedure Code which then read as follows :‑ "3.‑(1) Where one of two or more plaintiffs dies and the right to sue does not survive to the surviving plaintiff or plaintiffs alone, or a sole plaintiff or sole surviving plaintiff dies and the right to sue ‑survives, the Court, on an application made in that behalf shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit. (2) Where within the time limited by law no application is made under sub‑rule (1), the suit shall abate so far as the deceased plaintiff is concerned, and on the application of the defendant, the Court may award to him the costs which he may have incurred in defending the suit, to be recovered from the estate of the deceased plaintiff." "4.‑(1) Where one of the two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants alone, or a sole defendant or sole surviving defendant dies and the right to sue survives, the Court, on an application made in that behalf, shall causes the legal representative of the deceased defendant to be made a party and shall proceed with the suit. (2) Any person so made a party may make any defence appropriate to his character as legal representative of the deceased defendant. (3) Where within the time limited by law no application is made under sub‑rule (1), the suit shall abate as against the deceased defendant." Since under rule 11 of the same Order the entire order was to apply also to appeals reading the word "plaintiff" as including an appeal and the word "defendant" as including a respondent, the position would be, so far as is material to the present case, that where a sole respondent died and am application was not made to cause the legal representatives of the respondent to be made a party within the time prescribed by law the appeal abated the time is prescribed under Article 177 of the Schedule 1 to the Limitation, Act and is 90 days. Clearly, therefore, the appeal would abate and there is no question of asking for condonation of delay in filing such an application. as admittedly section 5 of the Limitation Act does not apply to such, applications. The only remedy that the appellant would then have would be by recourse to rule 9 of the same Order sub‑rule (2) of which permits the abatement to be set aside if there was sufficient cause which prevented the appellant from continuing the appeal. To such an application the provisions of section 5 of the Limitation Act have been expressly made applicable. In the event, therefore, that we were to hold that this appeal is governed by the law as it stood before the Law Reforms Ordinance there would be no, question of extending the time for making an application for bringing the legal representatives on record ; undoubtedly the application for setting aside the abatement could be made beyond time of sufficient cause is shown but in the present case that application is admittedly within time. The question. in that event would only be whether sufficient cause has been shown.

4. The Law Reforms Ordinance, however, has made a serious change in: the procedure and the first step in the change is the addition of an entirely, new rule numbered 13 to Order VIII of the Civil Procedure Code and this. reads as follows :‑ "

13. List of legal representatives of defendant.‑(1) In every suit of the. nature referred to in rule 4, Order XXII, the written statement shall be accompanied by a statement giving‑ (a) the names and addresses of the persons who, in the event of the: death of the defendant, may be made a party as his legal, representatives; (b) the name and address of the person, who in the event of the death, of the defendant, shall intimate such fact to the Court, furnish the Court with the names, particulars and addresses of the legal representatives of the defendant and make an application for the legal representatives to be made a party. (2) A defendant may at any time‑ (a) file in the Court an amended list of his presumptive legal representatives ; (b) nominate another person, in the place of the person nominated under clause (b) of sub‑rule (1), for the purposes of that clause. (3) A nomination made under clause (b) of sub‑rule (1) shall, unless varied under clause (b) of sub‑rule (2), remain in force throughout the pendency of the suit and any proceedings arising therefor, including appeal, revision or review."

5. It is in the light of this rule that the amendment made in rules 3 and .4 of Order XXII becomes intelligible. The two rules as amended read thus "

3. Procedure in case of death of one of several plaintiffs or of sole plaintiff.‑(1) Where one of two or more plaintiffs dies and the right to sue does not survive to the surviving plaintiff or plaintiffs alone, (for on receipt of an intimation of the death of such plaintiff from the person nominated by him for that purpose under rule 26, Order VII) or a sole plaintiff or sole surviving plaintiff dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit. (2) Where within the time allowed by law no application is made or intimation is given under sub‑rule (1), the Court may proceed with the suit, and any order made or judgment pronounced in such suit shall, notwithstanding the death of such plaintiff, have the same force and effect as if it had been made or pronounced before the death took place."

4. Procedure in case of death or one of several defendants or of sole defendant.‑(1) Where one of two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants alone (or on receipt of an intimation of the death of such defendant from the person nominated by him for that purpose under rule 13, Order VIII) or a sole defendant or sole surviving defendant dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit. (2) Any person so made a party may make any defence appropriate to his character as legal representative of the deceased defendant. (3) When within the time limited by law no application is made or intimation is given under sub‑rule (1), the Court may proceed with the suit, and any order made judgment pronounced in such suit shall, notwithstanding the death of such defendant, have the same force and effect as if it had been pronounced before the death took place. (4) It shall not be necessary to substitute the legal representatives of any such defendant who has failed t o file a written statement or has failed to appear and contest the suit at the hearing ; and Judgment may in such case be pronounced against the said defendant notwithstanding his death, and such Judgment shall have the same force and effect as it had been pronounced before his death took place." Clearly and admittedly if the new law applies there is no need at all to pass ,any orders on these applications and the appeal must continue.

6. Ordinarily I should have assumed that, abatement being a matter of procedure, the new law would apply to pending matters and the entire Question then is one of interpretation of section 3 of the Ordinance the main purpose of which was to abolish Letters Patent Appeals and certain kinds of Second Appeals ; it is the proviso to this section which really needs construction. The section reads as follows : ‑

3. Certain appeals barred. As from the commencement of this Ordinance‑ (a) no appeal under the provisions of any Letters Patent, as applicable to a High Court, shall be entertained by such High Court ; and (b) no second appeal shall lie in any suit of the nature referred to in section 102 of the Code of Civil Procedure, 1908 (V of 1908), as amended by this Ordinance Provided that nothing contained in this Ordinance shall be construed as} affecting any such appeal which was pending immediately before the commencement of this Ordinance." It will be noticed that, although the proviso is inserted as a proviso to the section and is not contained in an independent section, the language used therein is "that nothing contained in this Ordinance" shall be applicable to pending appeals. It was therefore argued on behalf of the respondent that the language was clear and that we therefore ought to hold that the Ordinance is not attracted in the present case at all.

7. There can of course be no doubt that the proviso does in terms purport to except all pending appeals from the purview of the Ordinance as a whole. It is the duty of the Court, however, to give effect to the true meaning of the Legislature and Mr. Kazi's contention was that where the language be plain no other consideration whatever should prevail with the Court which should give effect to the language regardless of the consequences. Several weighty arguments, however, have been advanced by the learned Advocate‑General and the learned counsel for the appellant which need consideration.

8. There is in the first place a consideration of a general nature which inclines me towards holding that the proviso in question was not intended to exclude pending Letters Patent Appeals from the operation of the entire Ordinance but only of the section in which it is to be found. As a general, rule a proviso to a section cuts down the meaning of that section as a. proviso to a group of sections would cut down the meanings of that group : provisos are not generally intended to do more than this. In Craies on Statute Law, Sixth Edition, page 217 appears the following passage "The effect of an excepting or qualifying proviso, according to the ordinary rules of construction, is to except out of the preceding portion of the enactment, or to qualify something enacted therein, which but for the proviso would be within it ;and such a proviso cannot be construed as enlarging the scope of an enactment when it can be fairly and properly construed without attributing to it that effect."

9. Among the many cases in which the question has arisen for consideration may be mentioned a decision of the English Court of Appeal : Dormer v. Newcastle‑upon‑Tyne Corporation ((1940) 2 K B 204) in which at page 213 Slesser L. J. said "It is to be observed in the first instance that section 65 operates by way of a proviso. It is a proviso to the group of sections dealing with sewers and sanitary arrangements. It has been said in Rex v. Dildin by Fletcher Moulton L. J. : `it sins against the fundamental rule of construction that a proviso must be considered with relation to the principal matter to which it stands as a proviso. It treats it as if it were an independent enacting clause instead of being dependent on, the main enactment'. If the main enactment here be, as I think it is in this matter, an enactment relating to sewers, then it is clear, to my mind, that the proviso is limited to those potential nuisances which may arise out of the exercise of the powers in sections 62, 63 and 64,, which unlike the powers in section 22, can be exercised without creating a nuisance."

10. In the same case Goddard, L. J. said at page 217 "I think it is beyond argument that section 65 being, as it purports to be a proviso, is a proviso only to the sections immediately preceding it dealing with sewers ; and was never intended to be applicable to the whole Act. If it be applied to section 22, it would simply mean that Parliament had given with one hand what it took away with the other. The learned Judge, being apparently invited to treat the section as applicable to the whole Act, had to see if he could reconcile the sections ; and did so by differentiating between a public and a private nuisance, holding that the section did not authorize a private nuisance, though it did a public nuisance. But I confess that I know of no principle on which this construction could be supported. I need not, however, consider his reasons ; because in my opinion it is clear that section 65 is not a proviso to section 22."

11. It is true of course that this principle, like all other principles of construction, cannot be treated as one to which all other principles must yield : these are all aids to interpretation the primary and final duty of a Court always being to give effect to the true meaning of the Legislature. If this were all, then, I should nevertheless, regard being bad to the fact that the word "Ordinance" and not "section" has been used in the proviso hold that no part of the Ordinance applied to pending Letters Patent Appeals. In arriving at the true meaning of legislation, however, an inconvenient or an unreasonable meaning is to be avoided and, if it is necessary for the purpose of avoiding an absurd result the Courts may even modify the language actually used. In Maxwell's well known work on the Interpretation of Statutes, 12th Edn., it is stated at page 199 "In determining either the general object of the Legislature,. or the meaning. of its language in any particular passage, it is obvious that the intention which appears to be most in accord with convenience, reason, Justice and legal principles should, in all cases of doubtful significance, be presumed to be the true one. "An intention to produce an unreasonable result is not to be imputed to a statute if there is some other construction available." Where to apply words literally would "defeat the obvious intention of the legislation and produce a wholly unreasonable result" we must "do some violence to the words" and so achieve that obvious intention and produce a rational construction. The question of inconvenience or unreason ableness must be looked at in the light of the state of affairs at the date of the passing of the statute, not in the light of subsequent. events."

12. Again at page 231 the learned author observes "Sometimes, where the sense of the statute demands it or where there has been an obvious mistake in drafting, a Court will be prepared to substitute another word or phrase for that which actually appears in the text of the Act."

13. The Supreme Court in the case of Mohammad Amir Khan v. ‑Controller of Estate Duty (P L D 1961 S C 119) said : "But while we reject this contention of the Attorney‑General we find force in the other two contentions. We are satisfied that this is a case where the Court can modify the language of an enactment. It will be observed that there cannot be the slightest doubt in the present case as to the intention of the Legislature. In fact, it is admitted on behalf of the appellants that the failure to make a consequential amendment in section 57 could only be due to a slip. After providing that the Controller could determine value subject to an appeal to the Appellate Tribunal the Legislature could not possibly have intended that duty should be paid only on the account which was filed by the accounting party itself. All that has happened is that the draftsman failed to refer in section 57 to the provisions relating to determination in accordance with the amended Act. That we can modify the language of an Act to give effect to the manifest and undoubted intention of the Legislature is a position which is well supported by authority and well justified in reason."

14. Their Lordships then went on to rely upon a passage in Crawford .on Statutory Construction and also to a similar passage in Maxwell and finally to the Privy Council Case reported in 11 A C 634. 15. 1 have, therefore, no doubt that if, reading the Ordinance as a whole, it is plain that the intention of the Legislature was not as would at first sight appear from the language used that error of drafting may be corrected by the Court.

16. I proceed to consider what would be the consequences of interpreting the proviso to mean that nothing in the Ordinance should apply to pending Letters Patent Appeals. It seems to me that there is no obvious reason why Letters Patent Appeals which were pending at the time of the promulgation of the Ordinance should have been so excepted. It could of course be argued that the Legislature did not intend to make any change in ‑the law affecting pending matters but in that case all pending matters and not merely Letters Patent Appeals would have been so excepted. As it is, suits and appeals other than Letters Patent Appeals are not so excepted. Besides, if that had been the intention of the Legislature, clearly not only would the proviso have been differently worded but it would not, as a matter of drafting have found place in section 3.

17. Then again if the old law were to apply it is clear that once the period of 90 days has expired no application would lie for bringing the legal representatives on record and section 5 of the Limitation Act could not be invoked for the purposes of asking for condonation of delay. The only remedy then would be, as I have pointed out already, under Order XXII, rule 9 and, although that rule does not talk of a prescribed period of time as do rules 3 and 4, under Article 171 of the First Schedule to the Limitation Act t0 days are prescribed from the date of the abatement. Now Article 171 itself also has been amended by the Law Reforms Ordinance. In its unamended form it read : "Under the Code of Civil Procedure, 1908 for an order to set aside an abatement." but now reads : "Under the Code of Civil Procedure, 1908 by the legal representative of a deceased plaintiff or defendant for setting aside an order or' Judgment made or pronounced in his absence." In other words a period of limitation for an application under Order XXII,. rule 9 is no longer prescribed. It is at least unreasonable, if not absurd, to think that the Legislature, in those circumstances, intended that such an. application may be made at any time however long after the Judgment. The whole purpose of the relevant provisions of the Ordinance seem to be to avoid the delay consequent upon the addition of legal representatives and it would be incongruous that in respect of Letters Patent Appeals pending, but in respect of them only, the Legislature intended that the Judgment reached should, in a sense, never become final but always liable to be set aside upon an application under Order XXII, rule 9. 18. 1 have, therefore, come to the conclusion that the proviso cannot be read as taking away the operation of the entire Ordinance to Letters Patent Appeals as so to do would be to lead to highly inconvenient and even absurd results.

19. Mr. Kazi, however, has cited in support of his argument the case of Noor Hussain v. The Chief Settlement Commissioner (P L D 1973 Lah. 809) and the passage at page 814 which reads thus "The argument of learned counsel to the effect that under the Law Reforms Ordinance, 1972 (which is in force at present so far as the C. P. C. is concerned), the law of abatement had become obsolete and had ceased to be applicable, is also without force. In respect of the C. P. C., the aforementioned Ordinance came into force on the 13th of April 1972. It is not retrospective in effect and, therefore, its provisions cannot be applied to the instant case."

20. With great respect to the learned Judges I have not been able to reach the same conclusion. If it was not the intention of the Legislature to, apply the Ordinance to pending matters at all as the learned Judges have held then it seems that there was no need for the proviso at all or, if the need was felt, it would have been inserted, as I have already said, as an independent section and not as a part of section

3. The clear purpose of the proviso I think was to make it plain that, despite section 3, which otherwise abolished Letters Patent Appeals and Second Appeals of a certain category, such matters as were then pending would not be affected.

21. On this view of the law as I have already said, this appeal would not abate and no orders are needed upon the three applications before us and. I would hold accordingly. JAMALUDDIN H. AHMAD, J.‑I agree. K. B. A. Order Accordingly