P L D 1960 (W (PLP)

SHABIR AHMAD, J.‑

Mirza Khan and nine others brought a suit against Ganesh Das and eight others for a declaration that land measuring 105 kanals 12 marals together with shamilat taraf sharaf and shamilat deh mentioned in khatas detailed in the plaint did not belong to and was not in possession of defendants Nos. 4 to 8 and that it belonged to defendants Nos. 1 to 3 and the plaintiffs who were in possession of it. An injunction to restrain defendants Nos. 4 to 8 from interfering with the posses sion of the plaintiffs was also prayed for. Defendants Nos. 1 to 3 were Hindus, defendant No. 4 was Karam Elahi, defendants Nos. 5 to 8 were Muslims, who were stated to be transferees of a part of the land in suit from Karam Elahi, and of them defendant No. 5 was Mst. Gulzarda Begum, wife of Karam Elahi, defendant No. 4, while defendant No. 9 was the Custodian, Evacuee Property. The suit was resisted on a number of grounds and after the issues had been framed, Mst. Gulzarda Begum defendant No. 5, who was a transferee of a part of the property in suit from her husband, died on the 4th of February 1953. At the time of her death, Karam Elahi, defendant No. 4, her three sons and two daughters were her legal representatives, and of her children Muhammad Aslam was already on the record as defendant No. 6, as he too, like his mother, was a transferee of a part of the land in suit from Karam Elahi. No application was made for impleading the legal representatives of Mst. Gulzarda Begum within the period prescribed by law, but on the 12th of May 1953, i.e., seven days after the period prescribed by law, such an application was made. On the 11th of July 1953, Mirza Khan, one of the plaintiffs, put in an application for setting aside the order of abatement on the ground that he had not been able to apply in time for the legal representatives of Mst. Gulzarda Begum being impleaded in her place on account of the illness of his son who had died of that illness. The application for setting aside the abatement was resisted and the trial Judge framed the following four issues:‑-- (1) Has the suit not abated on account of all the legal representatives of Mst. Gulzarda Begum not having been brought on the record within time ? (2) If so, to what extent has the suit abated ? (3) Is the application for bringing the legal representatives on the record within time ? (4) Is there sufficient cause for setting aside the abatement ? All four issues were decided against the plaintiffs with the result that the suit was dismissed. The plaintiffs' appeal to the District Judge, Rawalpindi, was dismissed by Mr. Abdus Samad, Additional District Judge, Rawalpindi, by his order dated the 1st of July 1955, whereupon the plaintiffs presented the present appeal. The appeal to this Court came up for hearing before my brother Muhammad Yaqub Ali who has referred the case to a larger Bench on the ground that the question that arises being of some complicity, it was better that he sitting in Single Bench did not decide it. The case was heard by another learned Judge and myself, but before the judgment could be announced my learned colleague ceased to be a Judge and the case has now come before this Bench.

2. I have mentioned already that Mst. Gulzarda Begum died on the 4th of February 1953 and the application to implead her legal representatives in her place was made on the 11th of July 1953. The Limitation Act prescribes a period of 90 days from the death of a party for an application to implead its legal representatives and it is therefore, obvious that the application put in by Mirza Khan, plaintiff‑appellant, to bring the legal representatives of Mst. Gulzarda Begum on the record in her place was barred by time. As the application was clearly barred by time, the finding of the two Courts below on issue No. 3 cannot be disturbed, nor can the finding of the Courts below on issue No. 4 be questioned on any valid ground. Whether or not there was sufficient cause for setting aside the abatement is almost invariably a question of fact. In the present case, it is established that the reason pleaded by Mirza Khan for putting in the appli cation, after the expiry of the period fixed by the Limitation Act, for impleading legal representatives of Mst. Gulzarda Begum in her place was not established. He alleged that he could not apply in time because of the illness of his son who died of that illness. The evidence produced by him, however, shows that his son died two months after Mst. Gulzarda Begum and there is no evidence to show that for the time between the death of his son and that of Mst. Gulzarda Begum, and for one month after the death of his son, Mirza Khan was presented by any sufficient cause from putting in an application for bringing on the record the legal representatives of Mst. Gulzarda Begum as defendants in her place. The finding of the two Courts below on issues Nos. 3 and 4 must, therefore, be upheld.

3. The main question that falls for determination for the disposal of this appeal is the effect of the fact that two out of about half a dozen legal representatives of Mst. Gulzarda Begum were already on the record as defendants. A number of decided cases were cited by Sheikh Muhammad Shafi, Advocate, for the appellant, and Mr. Shah Rahman Ansari, Advocate for Karam Ilahi, defendant‑respondent. One set of these authorities lays down that if even one of the legal representatives of the dead party is brought on the record within time the omission to bring the others on the record within the period prescribed by law is not fatal. Another set of decided cases lays down that if all the legal representatives of the dead party are not brought on the record, and it established that the omission to bring on the record those who are not impleaded is due to an honest mistake on the part of the party making the application, the omission is not fatal. Another set of authorities is to the effect that if the legal representatives of a dead party are already on the record as parties to the litigation, the omission to put in an application for implead ing them as legal representatives of the dead party is not fatal, while another set of authorities is to the effect that the mere fact that the legal representatives of a dead party are on the record in another capacity cannot be availed of by the party which should have, but did not, make an application to implead the legal representatives of the dead party.

4. The provision of law which is relevant for the purposes of the point that arises in the present case is contained in Order XXII, rule 4, of the Code of Civil Procedure which reads as follows:‑-- "4 (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 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) Where within the time limited by law no application is made under sub‑rule (l), the suit shall abate as against the deceased defendant." It will be noticed that the rule mentions that the legal representative of the dead defendant should be brought on the record but it is obvious that if there are more legal representatives than one, all of them have to be impleaded. For the purposes of the present case, it is not necessary to examine in detail those decided cases which have laid down that if an application is made in time to bring only one legal representative of a dead party on the record, the suit does not abate, nor those which lay down that if an application to implead the legal representatives omits the names of some of them the omission is not fatal if it is due to an honest mistake, because in the present case no application to bring the legal representatives of Mst. Gulzarda Begum on the record was made in time, and the application which was made was, in the eye of law, not an application at all. Similarly, those decided cases which lay down that if the legal representatives of a dead party are on the record in another capacity their presence on the record can be availed of by the party which should have made an application to implead them in place of the dead party need not be considered, because it is admitted that only two out of half a dozen legal representatives of Mst. Gulzarda Begum were on the record in their own right and it is obvious that these decisions even if correct have no application to the facts of the present case. In the present case only two of the six legal representatives of Mst. Gulzarda Begum were on the record, not as her legal representatives but in an entirely different capacity, and even if the non‑compliance with the provisions of Order XXII, rule 4, of the Code of Civil Procedure, which lays down that the legal representative of a party be impleaded by an application in that behalf, be overlooked, I am of the view that the decision of the Courts below cannot be reversed. All the legal representatives of Mst. Gulzarda Begum not being on the record, it can hardly be doubted that the whole of her estate was not represented and it could not be the intention of the legislature that the provisions relating to applications for impleading the legal representatives of a dead party be such an unnecessary appendage as to entail no penalty even in the case of a party which, in spite of not having made the application envisaged in those provisions, cannot show that all persons that should have been brought on the record by means of an application are already on the record as parties in their own rights.

5. Of the many decisions cited at the Bar only two given by the High Court of Judicature at Lahore deal with facts not materially dissimilar to those in the present case. One of these decisions is Muhammad Hasan and another v. Inayat Husain and others (A I R 1927 Lah. 94) and the other is Chuni Lal Tulsi Ram v. Amin Chand and another (I L R 14 Lah. 5 43). In the former of these cases, some of the legal representatives of a dead party, against whom a decree had been passed, had presented an appeal without impleading the other legal representatives either as appellants or as respondents, where upon a Division Bench held that as the estate of the deceased was not fully represented, the appeal was incompetent. In the latter case the decision in the first one was approved by another Division Bench. I am in respectful agreement with the views expressed in these two cases, and the fact that they were cases of appeal while the present is a case of a suit does not make any difference at all. The present case is entirely different from the one in which an application to implead only some of the legal representatives of a dead party is made in time because in that case the party making the application had made an attempt to comply with the provisions of law while there was no attempt of this kind in the present case. As all the legal representatives of Mst. Gulzarda Begum defendant were not on the record in any capacity and no application had been made by the plaintiff's to implead them or any of them as her legal representatives within the period prescribed by law, the t plaintiffs had clearly failed in the duty enjoined on them by the relevant provisions of law and cannot but suffer for their negligence. Consequently, I would hold that the presence of two of the six legal representatives of Mst. Gulzarda Begum on the record in their own right did not prevent the provisions of law relating to abatement applying to the case.

6. It was urged by Sheikh Muhammad Shall, the learned counsel for the appellants, that even if the suit had abated with regard to the interests of Mst. Gulzarda Begum, the abatement was merely partial and the whole suit could not have been dis missed. Mr. Shah Rahman Ansari, Advocate, on the other hand, urged that the whole suit had abated because the cause of action was one. Mr. Ansari was not wholly correct in iris assertion that the cause of action was one because it is clear from the plaint and the written statement that Karam Elahi had transferred some of the property in suit to his wife Mst. Gulzarda Begum in lieu of dower. The property transferred to Mst. Gulzarda Begum was clearly specified in the mutation entered in her favour and it is obvious that if the plaintiffs had chosen to bring a suit with regard only to the property given to Mst. Gulzarda Begum of Karam Elahi, their suit could not have been thrown out on the mere ground that they had not cited to bring a suit with regard to the other part of the property alleged to have been transferred by the non‑Muslim defendants to Karam Elahi defendant. The argument of Mr. Ansari that if the suit is held to have abated only with regard to the share of Mst. Gulzarda Bagum, the result will be two conflicting decrees with regard to one property does not impress me because, as mentioned by me above, she was in possession as transferee from Karam Elahi of a specified piece off land and if the plaintiffs had brought a suit against her alone, it would have been fully competent. In these circumstances, the necessity to examine the decisions which lay down that in order that the passing of conflicting decrees in the same suit should be avoided the abatement where it occurs should be held to be complete, does not arise. Consequently, I would accept the appeal to this extent that the decision of the two Courts below dismissing the suit would apply only to that part of the property in suit which had been transferred to Mst. Gulzarda Begum. The parties will bear the costs incurred by them in all the Courts so far. The case will go back to the trial Court for dealing with the other questions that fall for determination. KAIKAUS, J.‑

I agree. K.M.A. Appeal accepted in part.