P L D 1988 Karachi 65 (PLP)

Civil Miscellaneous Application No. 1113 of 1987. This is an application under Order XXII, Rule 3, CPC read with section 151, CPC for bringing the L.Rs. of deceased /appellant Mst. Hajiani Fatima Bai on record in the above appeal. The brief facts giving rise to the present application are that on 17‑9‑1987 an application was moved by the learned counsel for the appellant under Order XXII, Rule 3 read with section 151, CPC requesting therein that appellant Mst. Hajiani Fatima Bai has died and her legal heirs representatives named in the application be brought on record. The application was supported by an affidavit filed by Mohammad Hussain s/o late Haji Mohammad. The respondent No.4 has filed counter‑affidavit opposing the above application on the ground that Mst. Hajiani Fatima Bai died on 14‑1‑1987 and therefore the application was time‑barred. I have heard Mr. Kunwar Mukhtar Ahmed, learned counsel for the appellant, and Mr. Khuda Bux Omrani, learned counsel for the respondents. It was contended by Mr. Kunwer Mukhtar Ahmed, learned counsel appearing for the appellant that after the Law Reforms Ordinance 1972 the appeal could not abate. In support of his contention he has relied upon PLD 1986 S C 169, 1985 S C M R 1359, PLD 1987 Kar. 493 and PLD 1975 Lah.

79. Mr. Khuda Bux Omrani, learned counsel appearing for the respondents has contended that the application for bringing the L.Rs. of deceased /appellant on record has to be moved within 90 days as envisaged by Article 176 of Limitation Act, and since the present application was filed after more than 8 months it was clearly time‑barred. I have considered the contentions of the learned counsel and have gone through the amendments introduced in rules 3, 4 and 9 of Order XXII, CPC by Law Reforms Ordinance 1972, and the decisions relied upon by the learned counsel. In order to appreciate the legal position it is necessary to have a look at the amendments introduced in rules 3, 4 and 9 of Order XXII, CPC which read as under:‑ "(a) in rule 3,‑‑ (1) in sub‑rule (1) after the word 'alone', the commas, words and figures for on receipt of an intimation of the death of such Plaintiff from the person nominated by him for that purpose under rule 26, Order VIII shall be inserted. (2) For sub‑rule (2), the following shall be substituted, namely: ‑ (2) Where within the time allowed by law no application is made or intimation is given under sub‑rule (1‑a), the Court may proceed with the suit, and any order made or judgment pronounced in such suit shall, notwithstanding the death of such plaintiff, have the same force and effect as if it had been made or pronounced before the death took place." (b) in rule 4, ‑‑ (1) in sub‑rule (1), after the word 'alone', the commas, words and figures, 'or on receipt of an intimation of the death of such defendant from the person nominated by him for that purpose under rule 13, Order VIIII shall be inserted, and (2) for sub‑rule (3), the following shall be substituted, namely: ‑ (3) When within the time limited by law no application is made or intimation is given under sub‑rule (1), the Court may proceed with that suit, and any order or judgment pronounced in such suit shall, notwithstanding the death of such defendant have the same force and affect as if it had been pronounce before death took place, and after sub‑rule (3), as substituted aforesaid, the following new sub‑rule (4), shall be added, namely:‑ (4) It shall not be necessary to substitute the legal representatives of any such defendant who has failed to file a written statement or has failed to appear and contest the suit at hearing, and judgment may in such case be pronounced against the said defendant notwithstanding his death, and such judgment shall have the same force and effect as if it had been pronounced before his death took place." (d) For rule 9, the following shall be substituted namely:‑ "

9. Effect of dismissal.‑ (1) When a suit is dismissed under rule 8, no fresh suit shall be brought on the same cause of action. (2) Any person claiming to be legal representative of deceased plaintiff or defendant or the assignee or the receiver in the case of an insolvent plaintiff may apply to the Court for setting aside any order made or judgment pronounced by it in his absence, and if it is proved that he was prevented by any sufficient cause from continuing the suit or defending the suit, as the case may be, the Court shall set aside the order or the judgment, upon such terms as to costs or otherwise as it thinks fit." In the case of Mst. Sardar Begum and another v. Abdul Qadir and another PLD 1975 Lah. 79 it was held that:‑ So far as the effect of amended rules 4 and 9 of Order, XXII, C.P.C. (as amended by Law Reforms Ordinance, 1972) and Article 174 of the Limitation Act is concerned. What is required by Article 177 is that such application should be filed within a period of 90 days. The question is, as to what is the effect of not filing such application within that time. The effect as provided previously in rule 4 of Order XXII has now been nullified by the amended rule, which provides that even in the absence of any application having been moved for impleading the legal representatives within the prescribed time, order or judgment, as the case may be, may be pronounced in the suit or appeal and it will have the same force and effect as if it has been made or pronounced before the death took place. It is also significant to note that the word 'abatement' has been eliminated from rule 9 as well as Article

177. According to the old law an application was to be made under rule 9 for setting aside the abatement whereas under the amended law an application by the legal representatives of her deceased/ plaintiff or defendant, as the case may be, has to be made for setting aside any order made or judgment pronounced in the absence of a party." It was further observed that:‑ The effect of the amended provisions of law, as referred to above would be that abatement after the death of a party would not take place even if his legal representatives have not been brought on record within the time fixed by law." In the case of Ibrahim v. The Settlement Commissioner, Karachi and 4 others P L D 1987 Kar. 493, while considering the effect of amendments in Order XXII it was observed by a Division Bench of this Court that:‑ "It may be pointed out that under Rule 11 of Order XXII, C.P.C. word 'plaintiff' includes an appellant, the word 'defendant' covers a respondent, and the word 'suit' includes an appeal. It is, therefore, evident that after the enforcement of the Ordinance a suit/an appeal does not stand abated on account of non‑bringing of legal heirs of deceased /defendant or respondent on record." In view of the amendments introduced by the Law Reforms Ordinance 1972, and the case‑law, it is clear that although: application for bringing the L.Rs. of deceased /appellant on record, was moved after the expiry of 90 days, yet the appeal did not abate after the death of appellant. In view of the above discussion C.M.A. No. 1113/87 is allowed. Let the L.Rs. of deceased /appellant Mst. Hajiani Fatima Bai be brought on record as prayed. M. B. A./F-35/K Application allowed.