P L D 1969 Lahore 642 (PLP)

"Order XXII, rule. 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 as 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 Court shall proceed with the suit and may pass a decree against the deceased defendant, and the decree so passed shall be binding only on such of the legal representatives of the deceased‑defendant as were not minors or persons of unsound mind throughout the aforesaid time : (4) Provided . . . . . . . . . Provided further . . . . . . . . (a) . . . . . . . . . (b) . . . . . . . . . and the Court shall, if such application was made within the time limited or extended as aforesaid and may, if it was made thereafter, on being satisfied the legal representative was prevented by any sufficient cause from making such application within such time, make an order setting aside the decree or proceedings or a part thereof as the case may be." "Order XXII, rule 9.‑(1)Where a suit abates or is dismissed under this Order, no fresh suit shall be brought on the same cause of action. (2) 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 ; and if it is proved that he was prevented by any sufficient cause from continuing the suit, the Court shall set aside the abatement or dismissal upon such terms as to costs or otherwise as it thinks fit. (3) The provisions of section 5 of the Indian Limitation Act, 1877, shall apply to applications under sub‑rule (2)."

3. Sh. Ataullah Qureshi, learned counsel appearing on behalf of the petitioners contended that the order of the Court is without jurisdiction, as application under Order XXII, rule 4, could not be treated under Order XXII, rule 9, C. P. C. and in any case, there was no justification for condoning the delay and the plaintiff respondents have failed to show sufficient cause for the condonation of delay. In support of his submission he cited Khushal Asaf Khan v. Hari Singh Gopichand (A I R 1940 Pesh. 39). In this case the Judicial Commissioner's Court at Peshawar held that these two provisions were separate and an application under one could not be treated for another. They dissented from Kirparam v. Bhagat Chand and others (A I R 1928 Lah. 746) and Badlu v. Mst. Naraini (A I R 1924 Lah. 424). This was the solitary authority cited by the learned counsel. The observation of the learned Judicial Commissioner was that for Order XXII, rule 4 C. P. C. Article 177 of the Limitation Act is applicable for which a period of 90 days is provided, while for application under Order XXII, rule 9, C. P. C. Article 171 of the Limitation Act is applicable where a period of 60 days is provided.

4. The opposite view that application under Order XXII, rule 4, C. P. C. can be treated as an application under Order XXII, rule 9, C. P. C., has been held by this Court in Badlu v. Mst. Naraini, Ata‑ur‑Rahman and others v. Mashkur‑un‑Nisa and others (A I R 1926 Lah. 474), Kirparam v. Bhagat Chand etc., Dina Nath v. Sayed Habib etc. (A I R 1929 Lah. 129), Bhartu v. Udmi and others (A I R 1934 Lah. 315) and Diwan Chand Nirmal Singh and others v. Bhagwan Chand and others (A I R 1937 Lah. 455). This consistent view of this Court is also shared by other High Courts of Indo‑Pakistan Sub‑Continent in Lachmi Narain v. Muhammad Yusuf and others (A I R 1920 All. 284), Lakshamibai Jagan Nath Noshi v. Yeshwant Vithal Baghar (A I R 1922 Bom. 449), Firm Gabrulal v. Court of Wards, Bilaspur (A I R 1933 Nag. 85), Hassomal Hardasmal v. Pirbux and others (AIR 1933 Sind 36), Ramjatan Bhagat and others v. Babu Net Lal Sah and others (A I R 1950 Pat. 281), Kondlba Ganoji and others v. Moti Ram Ganoji and others (A I R 1953 Hyd. 167) and Babaji Padhan v. Gurubara Padhani and others (A I R 1962 Orissa 94).

5. In Seshamma v. Yeeranki Peda Vekata Rao and others (A I R 1924 Mad. 713) it was held that abatement cannot be set aside without express prayer for doing so. In Janakinath Singha Ray v. Nirodbaran Ray and others (A I R 1930 Cal. 422) it was held that "in the application for substitution filed in December 1920 no dates were given of the death of the defendant, nor when the plaintiff came to know of it, nor were any grounds given entitling the plaintiff to an extension of the period of limitation. The application for substitution could not be treated as an application for setting aside the abatement under Order XXII, rule

9. Hence it was barred by time." In Dev Lal v. Faili (A I R 1951 M B 156) it was held that "Where the applicant did not state in his petition the date of the death of the defendant and he simply prayed for substitution of the heirs of the deceased defendant without stating the fact that the suit had abated or that the application for substitution was made beyond time or that on account of any fact the petitioner was entitled to any extension of the period of limitation for making the application, the petition cannot be taken to be a proper application at all under Order XXII, rule 9 for setting aside the abatement of the suit." In this case Janakinath Singha v. Nirodbaran Ray and others was followed and Kirpa Ram v. Bhagat Chand was dissented. In Ajai Verma v. Ram Bharosey Lal and others (A I R 1951 All. 794) it was held that where sufficient cause is not shown for putting an application long after the abatement of the appeal, abatement should not be set aside. In Kundun Mal Uttam Chand, Jwala Prasad and others (A I R 1963 Madh. Pra. 183) a Single Judge of that Court also observed that an application for substitution made after 90 days from the death not accompanying with the prayer for extension of time could not be taken as one for setting aside the abatement. In these cases the stress was on the absence of "sufficient cause" for not setting aside the abatement after the period of limitation, while the consistent view of this Court and the majority of High Courts is in favour of the proposition that an application under Order XXII, rule 4 can be treated as one under Order XXII, rule 9, C. P. C. and it is not necessary that in that application the prayer for setting aside the abatement should also be made. This view seems to be more plausible when an application is made after the expiry of limitation as provided under Order XXII, rule 4, along with an application under section 5 of the Limitation Act. This application, even if in it the prayer for setting aside the abatement is not made and only a request for bringing on record the legal representatives of the deceased is made, it is obviously an application for setting aside the abatement, because the suit automatically abates after the period provided under Article 177 and it is not necessary to pass an order of abatement. When an application is made under Order XXII, rule 4 for bringing on record the legal representatives of the deceased after the expiry of the time as provided under Article 177 of the Limi tation Act, with an application under section 5 showing sufficient cause for making that application, the application has to be treated as one for setting aside the abatement, though in such application such a prayer is not made. I am, therefore, of the view that the learned trial Judge has rightly treated the applica tion under Order XXII, rule 4, as one under Order XXII, rule 9, C. P. C. and has rightly permitted to bring on record the legal representatives of the deceased after setting aside the abatement in the suits.

6. The next contention of the learned counsel for the petitioners that the plaintiff‑respondents have failed to explain the delay for each day in filing the application under section 5 of the Limitation Act, and as such, there was no sufficient cause, the Court should not have condoned the delay. He relied on Muhammad Jahan Khan Chandio v. Muhammad Murad and others (P L D 1958 Kar. 229) and Ata Ullah Malik v. The Custodian, Evacuee Property, Karachi (P L D 1964 S C 236 (255)). He further submitted that the starting point of limitation is death and not the knowledge of the applicant and for the application of section 5 of the Limitation Act, the applicant mast explain the delay of each day. He relied on Jagar and others v. Mst. Natho and others (A I R 1960 Pb. 207), but in that case it was observed :‑ "Unless the ignorance of death was due to some events beyond the control of the appellants." In Union of India v. M/s. Radha Kishan Sohan Lal (A I R 1962 Pb. 493) ignorance of death was attributed to want of care on the part of the applicant and, therefore, this case is also distinguishable. In Abdul Ghaffar and others v. Muhammad Haroon and another (A I R 1935 Lah. 712) it was held that "the Court can condone delay in making applica tion for setting aside the abatement. The discretion so exercised is open to scrutiny by appellate Court only if it is exercised in perverse or un-judicial manner. The order otherwise is proper and does not become illegal, merely because application to bring legal representatives on record is submitted beyond time." Similarly, in Punjab Province v. Sultan Khan and others (P L D 1959 Lah. 500) it was observed by a Division Bench of this Court consisting of Mr. Justice Muhammad Yaqub Ali (as he then was) and Mr. Justice A. R. Changez that: " Section 3 of the Limitation Act, 1903, imposes a mandatory duty upon Courts to dismiss a suit, appeal or an application if it has been instituted after the prescribed period of limitation, A party wishing to take advantage of section 5 of the Limita tion Act must, therefore, satisfy the Court that it had not been negligent and had been prosecuting its case with due diligence and care. The section no doubt gives a wide discretion in determining what is sufficient cause, but the discretion has to be exercised judicially and not arbitrarily. The exercise of jurisdiction by the learned trial Court in condoning the delay for a sufficient cause, in my view, does not seem e either arbitrary or capricious. The deceased was living far from the village in a different Tehsil and the plaintiff‑respondents were residing in another Tehsil, and they had no communication with the deceased. Even the defendant‑petitioners did not inform the Court about his death. There are 30 defendants who are the petitioners in these revision petitions. It was difficult for the plaintiff‑respondents to have looked after the welfare or absence of each defendant from the Court. The death of the deceased could not be normally ascertained by the plaintiff‑respondents.

7. For the foregoing reasons, there is no merit in these revision petitions, which are dismissed with costs. A. E. Petition dismissed.