P L D 1976 Karachi 468 (PLP)

3. When this appeal came up for final hearing before me, Shaikh Abdul Sattar, Assistant Advocate-General, Sind, contended that this appeal has abated in view of the provisions of section 6 of the Sind Service Tribunals Act, 1973 as amended by the Sind Service Tribunals (Amendment) Ordinance, 1974 read with the provisions of the Provincial Service Tribunals (Extension of the Constitution) Act, 1974. It will be useful to reproduce the provisions of section 6, as amended and the same are as follow:

"(6) All suits, appeals or applications regarding any matter within the jurisdiction of a Tribunal pending in any Court immediately before the commencement of the law as may be enacted by the Parliament, extending clause (2) of Article 212 of the Constitution of the Islamic Republic of Pakistan to a Tribunal, shall abate on the commencement of such Law; Provided that a party to such a suit, appeal or application may within ninety days of commencement of such Law, prefer an appeal to the appropriate Tribunal in respect of any such matter which is in issue in such suit, appeal or application. 6(A) Provisions of sections 5 and 12 of the Limitation Act (Act IX of 1908), shall apply to appeals under this Act."

4. Though, Mr. Nasiruddin, the learned Advocate for the appellant did not accept the contention of the learned Assistant Advocate-General it is not disputed before me by the learned Advocate for the appellant that the subject-matter of this appeal is not one over which the Tribunal has no jurisdiction. Therefore, in view of the provisions of section 6, quoted above, the matter which was in issue in the suit and which is in issue in this appeal has to be raised by preferring an appeal to the Tribunal. In this view of the matter; I have no doubt that the contention of the learned Assistant Advocate-General for Sind is valid and I have no hesitation to up hold the same.

5. However, the learned Advocate for the appellant prayed that formal order of abatement may be passed to enable the appellant to prefer an appeal before the Tribunal within the period of 90 days as provided in section 6 quoted. But the learned Assistant Advocate-General stated that it was not necessary to pass such an order.

6. However, the learned Advocate for the appellant on the analogy of provisions of Order XXII, rules 3 and 4 of the Code of Civil Procedure urged before me that a formal order of abatement was necessary, In support of his contention, the learned Advocate relied upon two cases of Allahabad High Court namely, the Secretary of State v. Jawahar Lal ((1914) 36 All. 235) and Gujrati v. Sital Misir (A I R 1922 A,11. 209), These cases do support the contention of the learned Advocate for the appellant. But I am of the opinion that no formal order is necessary as this appeal abated on extension of the provisions of Article 212 (2) of the Constitution of Islamic Republic of Pakistan to the Provincial Service Tribunals by Act XXXII of 1974, which came into force on 2-5-1974. I am of the view that in order to work the abatement of a suit or appeal it was not necessary for the Court to pass any order to that effect and the abatement of a suit or appeal on the enforcement of the Provincial Service Tribunals (Extension of the Provision of the Constitution) Act, 1974 (Act, XXXII of 1974) was an automatic process. The provisions of section 6 of the Act do not provided that suit or appeal shall abate on or after the passing of an order of abatement but they provide that the suit or appeal shall abate on commencement of Act XXXII of 1974. The cases cited by the learned Advocate for the appellant were considered by the same High Court and the case of Gujrad v. Sital Misir as pointed out by the learned Assistant Advocate -General was overruled by a Full Bench in the case of Churya v. Beneshwar (A I R 1926 All. 217) wherein it was observed by Sulaiman, J., at page 218 as follows:

"Under O. XXII, r. 4 (3) it is provided that where within the time limited by law no application is made under sub-rule (1) the suit shall abate as against the deceased defendant. The rule does not say that the Court shall pass an order directing that the suit abates. In the same way under rule 9. (2) it is provided that the plaintiff or the person claiming to be the legal representative of a deceased plaintiff, or the assignee or the receiver in the case of an insolvent plaintiff, may apply for an order to set aside the abatement or dismissal. It does not say to set aside `the order for abatement or dismissal ' as S. 371 of the old Code of Civil Procedure had said. The learned Judges in the case of Gujraii v. Sital Misir A I R 1922 All. 209 apparently quoted the repealed section when they remarked that that was an application to set aside an order of abatement in an appeal pending in that Court. Further the argument that a suit cannot be dismissed auto matically does not apply to an automatic abatement of a suit." And it was observed by Lindsay, J., in the same case at page 220:

"I am satisfied, therefore, that the decision in 44 All. 459 is not a correct decision and ought to be overruled. In my opinion the correct law was laid down in the judgment above referred to which is reported in 42 All.

540. The true interpretation of Order XXII is that, in order to work the abatement of a suit or appeal it is not necessary for the Court to pass any order." The view taken by the Full Bench of Allababad High Court was followed by Bombay High Court in the case of Vijayasingh v. Shivajirao (A I R 1924 Bom. 416) and again in the case of H. H. Darbar Alabhai Vajsurbhai v. Bhura Bhayu (A I R 1937 Bom. 401) wherein it was observed by Wassoodev, J., as follows:

"In regard to the procedure in such a case, it may be observed that there was-no necessity, as the lower Court has done, of making an express order of abatement." Moreover, the question stands determined by the case of Punjab Province v. Sultan (P L D 1959 Leh. 500 ) wherein a Division Bench held; "If the application is not made within the prescribed time to bring upon the record the legal representative of a deceased respondent the appeal automatically abats against him." I may, however, mention that the learned Assistant Advocate -General has stated before me that the learned Sind Service Tribunal has been entertaining appeals within 90 days of the passing of formal order of abatement by the Court. This may be so, as the Tribunal has ample powers under section 5 of the Limitation Act which has been made applicable by virtue of section 6(A) of the Sind Service Tribunals Act, 1973 to condone delay in preferring appeal before it as in such cases the plaintiff or appellant might be under the genuine mis-apprehension that the period of 90 days would commence from the date of passing of formal order. I have no doubt that if an application for condonation of delay is made by the appellant in case he prefers an appeal before the Tribunal it will be considered sympathetically, specially when the Tribunal has been entertaining appeals if filed within 90 days from the date of passing of formal order of abatement by the Court.

7. For the reasons given above, I hold that the appeal stood abated on 2-5-1974 when Provincial Services Tribunals (Extension of Provisions of the Constitution) Act, 1974 (Act XXXII of 1974) came into force. S .Q Order accordingly.