P L D 1965 (W (PLP)

Respondents Nos. 2 to 4 called absent. Date of hearing: 17th August 1964. This is a miscellaneous appeal from the order of the Additional District Judge, Karachi (Mr. Mehdi Ali Siddiki) in Suit No. 213/56 dated the 16th December 1960. By this order the learned subordinate Court held that the suit has abated against defendant No. 1 as the appellant failed to bring all his legal representatives on the record.

2. In order to appreciate the contention of the parties it would be necessary to mention certain important facts. The appellant brought a suit against Rais Gulan Khan Magsi Baloch and Allahbux his son for the recovery of about Rs. 23,000 in respect of commission agency transaction. During the pendency of the suit, on 10th January 1958, Rais Gulam Khan died at some place in the old Province of Sind. His counsel Mr. Joshi on 25th March, informed the appellant about the death of defendant No. 1 and asked him to contact his son Allahbux for finding out the particulars of the other legal representatives. On 31st March 1958 the appellant wrote a letter to Allahbux for obtaining the necessary information but it was not supplied. Accordingly on 8th April 1958, the appellant made an application in the subordinate Court that as he was not in a position to bring all the legal representatives of Rais Gulan Khan on the record, his son Allahbux who is already on the record may be treated as his legal representative and allowed to represent his estate in the suit. On 19th September 1959, Mr. Joshi filed objection on behalf of Allahbux and put forward the plea that as other legal representatives of the deceased were not brought on the record the suit has abated against respondent No.

1. On 16th October 1959 the appellant, on the basis of the information disclosed in the objections, applied for impleading the other legal representatives of the deceased as parties to the suit. The learned subordinate Court rejected this application on the ground that it was not maintainable as suit had abated against defendant No.

1. The appellant has challenged this order in this miscellaneous appeal. In support of the appeal Mr. Lakhani the learned counsel for the appellant has urged before me that as within the time provided in law the appellant has brought one of the heirs of the deceased on the record as his legal representative and has made an application to the Court that he should be allowed to represent the estate of the deceased, this was sufficient compliance of the law and the suit could not be held to have abated in the circumstances of the present case. In support of his contention the learned counsel has placed reliance on the case of Jehrabi Sadullah Khan Mokasi v. Bismillabi Sadruddin Kaji (A I R 1924 Bom. 420). In this case a Division Bench of the Bombay High Court observed as under: "It is sufficient for the plaintiff in a suit, if a defendant dies, to put one of the heirs on the record as his legal representative who will then represent the estate of the deceased for the A purpose of the suit. It would be impossible for a plaintiff to find out who are all the heirs of a deceased defendant and it is for those who claim to be heirs to come in if they wish to be represented in the suit." Mr. Joshi the learned counsel for the respondent has hotly contested this appeal. He urged that in law all the legal representatives of the deceased person should be brought on record within the time prescribed. He contended that as the appellant has failed to bring all the legal representatives of the deceased within the prescribed time the learned lower Court was perfectly justified in holding that the suit has abated. In support of his contention the learned counsel has not cited any legal decision.

3. In my opinion the contention of the appellant's counsel is not without force. It is well settled rule of law that if a party has taken proper steps to substitute on record the representatives of an adversary who had died pendente lite he cannot be penalised because he has not brought on record the whole off the representatives. The underlying principle in such cases is that a party can only act to the best of his knowledge. This view was taken in 89 I C 281 and A I R 1936 Mad. 336.

4. The facts of the present case show quite clearly that the appellant took proper steps to substitute on record the legal representatives of defendant No. 1 within the prescribed time. Immediately after he was furnished with full information about the other legal representatives he applied to bring them also on the legal record. In these circumstances it cannot be said that the appellant did not take proper steps within time to bring the legal representatives of the deceased on the record. In this view of the matter the learned subordinate Court has fallen into an error in holding that the suit has abated against defendant No.

1. I would, therefore, set aside the order of the learned subordinate Court and hold that the suit has not abated against defendant No.

1. In the result the appeal is allowed. The application made by the appellant to bring the other legal respresentatives on the record is granted and the learned subordinate Court is directed to bring them on record as legal representatives of the deceased. The learned lower Court is further directed to proceed with the suit in accordance with the law. In the special circumstances of the present case the parties are directed to bear their own costs. K.B.A.???????????????????????????????????????????????????????????????????????????????????????????????? Appeal accepted.