P L D 1976 Lahore 650 (PLP)

Aamar Raza A. Khan and Riaz Anwar for Respondent No.

1. Dates of hearing : 15th, 22nd January; 10th, 13th and 18th November 1975. This is a revision petition against an order dated the 22nd October 1971, passed by Mr. Muhammad Islam Bhatti, Additional District Judge. Lahore by which he dismissed the petitioner's appeal against an order of the learned trial Court refusing to set aside the abatement of his suit caused by the death of Shahzadi Shahr Bano, defendant No. 1.

2. The dispute in the suit filed by the plaintiff‑petitioner is about the inheritance of Nawabzadi Mehr Bano Begum who died on the 24th December 1963. The property of the deceased lady was under the superintendence of the Court of Wards. After her death, it was released to Nawabzadi Shahr Bano Begum, defendant No. l and other defendants, despite the opposition of the petitioner who claimed to be the adopted son ‑of the deceased and as such her sole heir. A suit instituted earlier was with drawn on the 28th February 1967, with permission to file another suit which was filed on the 1 st April 1967. This suit was contested by defendant No. 1 inter aha on the ground that her son Nawabzada Sher Ali Khan was a necessary party to the suit as she had gifted to him her entire share in the property in dispute. Nawabzada Sher Ali Khan also later submitted an application under Order I, rule 10, C. P. C. for being impleaded as a party on the same ground of his being a donee from defendant No.

1. Before this application could be heard defendant No. 1 died on the 18th January 1969. This fact was brought to the notice of the Court on the 20th January 1969, in the presence of the learned counsel for the petitioner. The Court fixed 5th March 1969, for submission of application for bringing on record her legal representatives. On the next date the petitioner's counsel promised to submit the application later. The Court thereupon fixed the 22nd April 1969, for further proceedings but directed that in case the application under Order XXII is submitted notices on it shall be issued to the respondents and the legal representatives for the above date. No application was submitted although the case was adjourned several times for this purpose. The suit was ultimately declared to have abated against defendant No. 1 on the 2nd July 1969.

3. The plaintiff submitted an application under Order XXII, rule 9 read with section 151, C. P. C. on the 4th September 1969, for setting aside the abatement and for impleading the legal representatives of the deceased defendant. This application was accompanied by another application under, section 5 of the Limitation Act. The delay from the 2nd July 1969, when the suit was declared abated, to the 3rd September 1969, was explained by the plea of want of knowledge about the order dated the 2nd July 1969. It was contended that the petitioner's counsel, Mr. S. M. Shafiq did not inform him about this order. Regarding his failure to apply for bringing the legal representatives of the deceased defendant on record it was stated that, the petitioner bad given instructions in this respect to his counsel after discussing with him the legal aspect whether she having died as an enemy alien could have been succeeded by any one living in Pakistan, but the counsel erroneously inferred from this discussion that no application under Order XXII, rule 4, was necessary. It was further urged that another factor which seemed to have influenced the counsel is that Nawbzada Sher Ali Khan had alleged in his application to be donee of the share of the deceased defendant and if the Court eventually held him to be an assignee from the deceased defendant he would be the only person fit to be impleaded as a. party. Before declaring the abatement the Court ought to have waited for arriving at a decision on that application. It was not conceded that Nawabzada Sher Ali Khan was actually an assignee or that the assignment was made in his favour during the pendency of the suit.

4. This application was contested. The learned trial Court framed the following issues :‑ (1) Whether there was sufficient cause for not filing the application under Order XXII, rule 9, C. P. C. in time ? (2) If issue No. 1 is not proved, what is its effect 7 The learned trial Court held that since the suit had abated after expiry of a period of ninety days from the date of death of the defendant the petitioner was hound to explain each day's delay from that time. There being no such explanation at least up to the 2nd July 1969, the application was badly hawed by time. The petitioner's plea that his counsel was, considering the legal aspect of the deceased being an enemy alien or that the counsel had not advised him to apply under rule 4 of Order XXII was:‑ disbelieved since the learned counsel had never raisgd this point although the case had been adjourned so many times; on the other hand the counsel had been promising to submit the application. During arguments the learned counsel for Nawabzada Sher Ali Khan withdrew the application under Order I, rule

10. The learned Judge, however, held that even if this application bad not been withdrawn, it could not benefit the petitioner since Nawabzada Sher Ali Khan could not be considered to be a party as a legal representative of the defendant unless that application had been decided. The two applications were therefore dismissed on the 30th June 1970. The learned appellate Court concurred with these findings.

5. The learned counsel argued that since Nawabzada Sher Ali Khan was an assignee of the entire property which had been given to the deceased defendant as an heir of Nawabzadi Mehr Bano Begum and he was before the Court as an applicant under rule 10 of Order I it was not necessary to apply for bringing any other legal representative on record. In support of this argument he relied upon Order XXII, rule 10, and argued that in a case of creation of interest . by assignment if an application is submitted by the assignee under Order XXII, rule 10 it will not be necessary to apply under .rule 4 of that Order. He relied upon Raja Ram Bhagwat v. Jibai (1 L R 9 Bom. 151) and Prakash Chandra Das Gupta v. Shama Charan Dutt and others (A I R 1925 Cal. 467). The headnote of the latter case in which the earlier case was cited with approval is that the death of a plaintiff after the assignment of his interest does not exclude the assignee's rights to be substituted in the suit, because where there are two devolutions‑the death of party and the transfer by him of his interest in the suit‑the transferee has the right to be brought on the record in place of the deceased transferor.

6. The argument is clearly misconceived for several reasons. Rule 10 .applies to cases of assignment during pendency of suit. There is no material on record that the deceased defendant gifted the property in dispute to Nawabzada Sher Ali Khan during the pendency of the suit. There is therefore ‑no foundation laid down for the argument based on the rule. Moreover the petitioner at no stage conceded that any such gift was made by the deceased defendant during his lifetime. He cannot therefore take the .advantage of an application made in Court by the alleged donee. The question whether in fact any gift was made by the deceased defendant in favour of one heir to the exclusion of other heirs should not be decided in the absence of the other heirs. Last but not the least tha application .under Order I, rule 10 having been withdrawn it is as goad as having never been made.

7. The cases relied upon by the learned counsel are also distinguishable. In the case of Raja Ram Bhagwat the assignee was made a party in appeal ,on his own request. It was held that an appellant may determine who shall be the respondent but not that any particular person shall not be a respon dent. It was observed that the choice of respondents made by the appellant may be defective through ignorance or fraud and the real representative of the decree‑holder cannot justly be refused an opportunity of maintaining the decision which it is sought to upset. The right of the appellant to implead the sons of the deceased respondent was not denied. The question of abatement of the appeal was not in issue in that case. The only point involved vas whether the assignee should also be impleaded as a party to the appeal to safeguard his interest and this was decided in his favour. In the Calcutta case the application of the assignee was dismissed by the trial Court and since no application for bringing the legal representatives on record was filed an order of abatement was recorded. This order was set aside on appeal on the principle of double devolution discovered in the Bombay case. It was. pointed out that this gave rise to a serious anomaly since after selling his right the deceased had no interest left and if the purchaser of his interest is not allowed to be impleaded as a party and on the other hand the legal representative of the deceased plaintiff is allowed to be impleaded there will be no representation in the suit.

8. It is fallacious to consider rule 10 as a substitute of rule 4 of Order XXII. Rule 10 opens with the words "in other cases". It is a residuary rule which governs cases not provided for by the previous rules. It is not a rule dealing with abatement and cannot be taken resort to for getting rid of the rules concerning abatement. Sahdev Singh v. Vidyavati and others (A I R 1926 Lah. 181); Motilal v. Bishambar Nath (A I R 1925 All. 431) Rameshwar and others v. Mst. Ganpati Devi and another (A I R 1936 Lah. 652) and Ram Narain v. Mst. Phula and others (A I R 1943 Oudh 24). In Ghulam Rasul v. Ramun Mal and others (A I R 1934 Lah. 190) a Division Bench of the Lahore High Court held that an appellant should not after the appeal has abated for not bringing the legal representatives on record be allowed to bring the transferee of the defendant on the record when he was not impleaded as a defendant and was not given an opportunity of defending the suit.

9. Rule 10 is merely a permissive provision enabling the assignee to continue the suit. Where the assignee does not or fails to bring himself on record the decision against his assignor is binding upon him. It is diffcult to appreciate how an application submitted by a person alleging himself to be an assignee which was withdrawn before any decision, can relieve the plaintiff of abatement of the suit.

10. The learned counsel then argued that the deceased defendant being an enemy alien residing in India till her death none of her legal representa tives in Pakistan can inherit her. In support of this argument he referred to a citation from some treatise on Fiqah in State Bank of India Ltd. v. Custodian of Evacuee Property (P L D 1969 Lah. 1050). He did not cite any original authorities or any law prevailing in Pakistan. In the above case also the basic legal theory of war in Islam as summed up as laying down that enemy alien when under express or implied aman cannot be deprived of their rights as to property and to deal with it, subject, of course to the condition that the exercise of such rights does not directly or indirectly add to the war potential of the enemy. It is unnecessary to pursue this argument in view of the concession that some of the legal representatives are still in India as Indian nationals. On the argument of the learned counsel at least those persons should have been impleaded under rule 4.

11. The learned counsel lastly argued on the strength of Muhammad Sadiq Khan v. Abdul Hayee Khan (L D 1957 S C (Pak.) 186) that the failure of the petitioner to apply under rule 4 of Order XXII on incorrect legal advice is suffcient ground for setting aside the abatement. This argument ignores the concurrent finding of fact that there was no such advice. To the contrary it is estab lished from the record that the learned counsel for the petitioner had been obtaining adjournments to enable his client the necessary application for impleading the legal representatives of the deceased defendant.

12. There is no merit in this petition. It is accordingly dismissed with costs. S. Q. Appeal dismissed.