2009 PLP 899 (CLC)

KHAWAJA SHAHAD AHMED, J.

The captioned Civil Appeal No.35 of 2004 has been addressed against a judgment, recorded in Civil Appeal No.73 of 2002 by a learned Judge of the High Court on 22-1-2004 whereby the second appeal filed by the appellants, herein, has been dismissed while maintaining the judgments and decrees recorded by the first appellate Court and the trial Court.

2. In this case factual matrix of the controversy need not be discussed here as admittedly while the appeal was pending before this Court it was brought on record through an application that respondent No.13 namely Abdul Rehman son of Ghulam Rasool has died. It was so reported by the Process-Server when notices were issued to the respondents after grant of leave to appeal by this Court. By order, dated 29-5-2004 the learned counsel for the appellants was directed to take necessary steps for impleading the legal representatives of the said deceased respondent. The case after this order was fixed for 23-6-2004 but no application for impleading the legal heirs of the deceased respondent was brought on record, however, on 24-6-2004 an application was moved for the purpose. When objections were invited from the respondents, respondents Nos. 1 to 6, 10 and 12 on 24-8-2004 contended that respondent No.13 died on 6-3-2003 whereas the memo. of appeal before this Court was field on 19-3-2004. The judgment was recorded by the High Court on 22-1-2004 and the petition for leave to appeal was drafted on 15-3-2004, which makes it abundantly clear that before the petition for leave to appeal could be filed in this Court, respondent No.13 had already died. The petition for leave to appeal or for that matter the appeal was, therefore, admittedly filed against respondent No.13-- a dead person.

3. The above-referred proceedings were conducted by the Registry Office of this Court by the Assistant Registrar, Mirpur. Parties were directed to produce evidence in support of their respective contentions about the death of respondent No.13. Appellant No. l appeared as a witness and also produced one Muhammad Yaqoob in support of his contentions. The contesting respondent No.7 and one Muhammad Akram appeared as witnesses and got their statements recorded. A photograph of the grave of the deceased respondent was also placed on record. The Assistant Registrar after going through the evidence produced by the parties came to the conclusion that under Order XV Rule 8 of the Supreme Court Rules it was mandatory for the appellants to file application for bringing on record the legal heirs of the respondent or appellant within a period of 90 days. However, the Assistant Registrar of this Court reported that Order XV of the Azad Jammu and Kashmir Supreme Court Rules, 1978, does not lay down a specific provision that in case of failure on the part of appellants to apply for substitution of legal representatives of the deceased, the appeal would automatically abate, therefore, there being no specific provision in the Supreme Court Rules, the Registrar cannot hold that the appeal has automatically abated and in his estimation it is only the Court which has to record findings in respect of abatement or otherwise. The Assistant Registrar also referred to some of the judgments from Pakistan jurisdiction reported as Khushi Muhammad v. Mst. Aziz Bibi 1980 SCMR 531, Dost Muhammad Khan v. Mst. Bibi Rukia 1986 SCMR 353 and Chinar Gul v. Cantonment Board of Peshawar and another 1978 SCMR

44. The Assistant Registrar Supreme Court has particularly referred to the case reported as Khushi Muhammad v. Mst. Aziz Bibi 1980 SCMR 531 and the following para. from the precedent judgment has been quoted:-- "...The Supreme Court Rules do not provide for automatic abatement. Therefore, in every such case the Court has to exercise its judicial discretion in directing abetment or otherwise. In exercising such discretion the Court will certainly be not oblivious of the procedure generally applicable to such proceedings before they reach the Supreme Court, its own level of adjudication and the finality attached to its judgment. Such a discretion permits a more rigorous enforcement of Rule 9 Order XVI of the Supreme Court Rules to keep it in harmony with the provisions as earlier existing in Order XXII, C.P.C. and more liberally now with the same object in view." Finally the Assistant Registrar formulated the question on 4-7-2006, "Whether the instant appeal shall abate in toto or particularly to the extent of deceased respondent No.13 and the same has to be decided by the Honourable Court. The application, therefore, shall be placed before the Honourable Court on 12-10-2006 for proper orders."

4. We have heard the learned counsel for the parties on the captioned question/proposition. The learned counsel for the appellant Sardar Muhammad Azam Khan while relying on Order XV, Rule 7, Order V, Rule 2(2) of the Supreme Court Rules, Order I, Rules 10 of the Civil Procedure Code and Order XXII, Rule 1 has contended that in view of the set of circumstances of the case this Court has power to allow the appellants to bring the legal representatives of respondent No.13 on the file and decide the appeal on merit. Among others he has placed reliance on the cases reported as 1999 YLR 550; PLD 2005 SC 430 and 2004 CLC 1925 and while arguing on the merits of the appeal has relied upon the case reported as 2006 SCR 92.

5. As against it Ch. Riaz Alam, the learned counsel for the respondents, contended that respondent No.13 died on 6-3-2003 when the petition for leave to appeal was not filed in the Supreme Court. The petition was filed on 19-3-2003, therefore, the same was filed against a dead person respondent No.13. The fact of the death of respondent No.13 was brought on record by the report of Process-Server with the result that it was the Registry Office which vide order, dated 29-5-2004 directed the appellants to take necessary steps to implead the legal representatives of the deceased-respondent. The appellants finally filed application for the purpose on 24-6-2004, admittedly after more than a year. The appellant being negligent to do so, they do not deserve any favourable discretionary order by the Court and as share of the deceased respondent is not separable, the appeal has to abate in toto, submitted the learned counsel. On merit he has submitted that the rights of the appellant in respect of the suit-land were based on an agreement/ Iqrarnama and after dismissal of the suit of the appellants, no appeal was filed by them and the finding recorded by the trial Court having attained finality, the appellants have no lawful backing to dispute the correctness of the rights of respondents. To support his contention about abatement he has relied upon a judgment of this Court recorded in Civil Appeal No.85 of 2002, decided on 30-5-2003.

6. Before adverting to the arguments of the learned counsel for the parties in detail it is imperative to record a finding in respect of filing of petition for leave to appeal and application for bringing on record the legal representatives of respondent No.

13. Suffice it say that admittedly the petition for leave to appeal was filed after the death of respondent No.13 and when the Process-Server reported about the death of respondent No.13 they didn't reply and when the Registrar directed them to file application for bringing on record the legal representatives, they still procrastinated, which clearly smacks of their negligence.

7. Now adverting to the contentions of the learned counsel for the appellants we may hold it at the very outset that this Court has jurisdiction and powers under the Supreme Court Rules to pass an order and avoid non-suiting of the party on technical grounds. In a case reported as Mirza Muhammad Aslam Beg v. Dr. Saghir Iqbal 1992 SCR 94 identical proposition was brought before this Court. In the precedent case when the arguments were heard by the Supreme Court and the judgment was reserved, the appellant died and without bringing his legal representatives on the file the judgment was announced. On the application made by the respondent a learned Judge of this Court namely Mr. Justice (R) Basharat Ahmed Shaikh allowed the application to consider legal effect of the lapses apparent on record. Finally the application was decided by a former learned Chief Justice of this Court Mr. Justice (Late) Muhammad Younus Surakhvi and one of the appellants was allowed to file objections in respect of bringing of the legal representatives of the other appellants on the file and the Deputy Registrar of this Court was directed to allow the said parties to produce evidence. In another case relied upon by the learned counsel for the respondent in Civil Appeal No.85 of 2002 this Court in para.6 observed as under:

"(6) We cannot agree with the learned counsel for the appellant that under misconception of facts that all the respondents were shown alive in the body of the judgment by the High Court, he impleaded dead persons as respondents in the appeal before this Court. His other submission that he was not furnished information by his client about the death of any respondent, therefore, he could not file any application for impleading the legal descendants of such deceased-respondents in the line of respondents is also not tenable. These explanations, in our view, are not sufficient to make this appeal competent. It was the responsibility of the appellant to furnish correct addresses of those against whom he wanted any relief from this Court. If on account of his wilful negligence, lie filed incompetent appeal, the same cannot be entertained particularly when the limitation has run against the appellant. Any remedy from a Court of law under any statutory law can be obtained by observing strictly the legal requirements laid down under such statute or rules applicable to the Court. We cannot ignore this fact that when the death of the some respondents was brought into the notice of the appellant, even then no step was taken for brining on record their legal representatives. This is, therefore, a case of clear negligence on the part of appellant which cannot be excused."

8. On the strength of above-referred two judgments of this Court we entertain no second view and are also of the considered opinion that this Court has jurisdiction to allow an application for bringing on record the legal heirs of a deceased party even after limitation to avoid non-suiting of a party on technical grounds. This power of the Court, whoever, is not absolute and has to be exercised keeping in view the facts of each case and more particularly the conduct of party. Similarly while deciding ancillary matter of such nature this Court has also to see if mandatory provisions of Supreme Court Rules are violated in which case this Court should not take a liberal view. Deviation in such cases amounts to violation of a rule or law, which cannot be allowed to perpetuate. Even if the arguments of the learned counsel for the appellant are accepted the fact of the matter still remains there that negligence of a party cannot lightly be taken under the garb of power of the Supreme Court to do complete justice.

9. Again the available record reveals that the controversy between the parties throughout has been about their alleged rights and possession of Shamilat Deh land and the suit filed by the appellants herein, has been dismissed by the trial Court and stands concluded on account of failure of the appellants to challenge the correctness of the judgment so recorded. Similarly it also floats upon the very surface of the judgment that the appellants were claiming certain rights on the basis of some agreement-deed creating some rights in their favour and as against it, it was contended by the respondents that they have possession of the Shamilat Deh land without partition which brings us to the conclusion that the share of the deceased respondent No.13 Abdul Rehman is not separable, therefore, the suit is to abate as a whole.

10. From the pleadings of the parties as well as the judgments recorded by the lower Courts it appears that the suit-land is admittedly Shamilat Deh, about which the Civil Courts have limited jurisdiction and admittedly cannot grant permanent injunction against all the share-holders who possess the land in the estate as well. Similarly unless the Shamilat Deh land is partitioned by metes and bounds by the Revenue authorities no specific share can be declared to be in possession of any land-owner. In this view of the matter we modify the judgment recorded by the trial Court in favour of the respondents by holding that the judgment recorded by the trial Court shall be inter-party and not enforceable against other share-holders in the Shamilat nor shall the same be binding on the Revenue authorities who have jurisdiction to work out the share in Shamilat according to the holding of land owners in the village or estate. On the basis of above finding no force in this appeal, the same is hereby dismissed. H.B.T./14/SC(AJ&K) Appeal dismissed.