1986 PLP 439 (MLD)

Ch. Muhammad Abdus Saleem for Respondents. Date of hearing: 30th September, 1985. C.A. RAHMAN, J.‑‑The present review application has‑been filed on behalf of Murad respondent in R.S.A. No.360 of 1965, decided by a learned Single Judge of this Court on 26‑1‑1980.

2. Briefly stated, the facts of this case are that Nabu deceased appellant instituted a suit for declaration challenging mutation No.343, dated 26‑8‑1941 whereby land measuring 176 Kanals and 15 Marlas situated in Chak No.53lS. B., Tehsil and District Sargodha, in which the deceased appellant claimed occupancy rights, was transferred by the Collector, as being illegal and without jurisdiction, because no order of resumption of the land in question had been passed before it was transferred to Murad Khan. The suit was contested by the Provincial Government and Murad. It was dismissed by the learned Administrative Civil Judge, Sargodha, on 25‑2‑1965. Nabu deceased filed appeal against the judgment and decree of the learned trial Court, but the same was also dismissed the learned District Judge, Sargodha, on 26‑4‑1965. After the dismissal of his appeal by the learned first appellate Court, he filed appeal in this Court which was admitted to regular hearing and, as noticed above, was disposed of on 26‑1‑1980.

3. During the pendency of the appeal in this Court, Nabu died on 14‑2‑1966. A petition (C‑M, No. 803/C‑66) for impleading his legal representatives was filed on 16‑7‑1966. On 24‑1‑1967 Murad respondent submitted petition (C.M. No.76/‑67) praying for the dismissal of the appeal as having abated, because the application for bringing on record the legal representatives of Nabu deceased appellant had not been filed within the prescribed period of limitation i.e. within ninety days after his death. It was also contended that the application for impleading the legal representatives of Nabu had not been filed by ail the legal representatives, because, the names of his minor daughters Mat. Sahib and Mst. Fateh had not been mentioned in the application. Both C.M. No.803/C‑66 and C.M. No.76/C‑67 came up for hearing on 17‑10‑1967 when it was ordered that the petitions would be heard alongwith the appeal. During the hearing of the appeal, the attention of the Court was not drawn to the aforementioned petitions with the result that the appeal was accepted and the judgments and decrees passed by the Courts below were set aside. On 19‑3‑1980, Murad respondent filed the present petition praying that the appeal may be re‑heard and the civil Miscellaneous Petitions Nos.803/C‑66 and 76/C‑67, which could not be considered earlier, should be disposed of after hearing the parties.

4. The review application was admitted to regular hearing by the learned Judge, who decided the appeal, but as he is no longer available, the review application has been heard by a Division Bench of this Court.

5. Learned counsel for the applicant has submitted that Nabu appellant had died before coming into force of the Law Reforms Ordinance, 1972, whereby sub‑rule (2) Rule 3 of Order XXII, C.P. C. has been amended so as to allow the Court to proceed with the suit even when no application for impleading the representatives of the deceased plaintiff has been made within the prescribed time. The failure of legal representatives of Nabu deceased appellant to apply for being impleaded as party within the prescribed time is, therefore, fatal to the appeal and it should have been disposed of as having abated in terms of the old provisions of sub‑rule (2) of Rule 3 read with Rules 11 of Order XXIII, C.P.C.

6. Learned counsel appearing on behalf of legal representatives of Nabu deceased has submitted that there is no justification for re‑hearing the appeal, as the respondent had failed to raise the question of abatement of the appeal at the time of hearing of the appeal. The respondent should be deemed to have waived his objection, if any, against impleading the legal representatives of the deceased appellant within the prescribed time.

7. We have considered the submissions made by the learned counsel for the parties. It is true that the law on the subject of abatement of proceedings has undergone a radical change after the amendment of the provisions of Order XXII, C.P.C. by the Law Reforms Ordinance, 1972, but in the present case, the controversy, as to whether application for impleading the legal representatives of Nabu deceased appellant had been filed within the prescribed time and whether all the legal representatives of the deceased appellant had joined in submitting the above application, had arisen before the amendment of the relevant provisions of Order XXII, C.P.C. Under the old provisions of sub‑rule (2) of Rule 3 of Order XXII, certain consequences followed, if application contemplated by sub‑rule (1) was not filed within time. These consequences could not be averted merely because no objection was raised by the opposite party. The plea of estoppel or waiver in such cases, therefore, would not arise. The disposal of two civil miscellaneous petitions referred to above was necessary before hearing the appeal. It is a fit case in which the provisions of Order XLVII, Rule 1, C.P.C. are attracted. We accordingly accept this review application and set aside the judgment, dated 26‑1‑1980. The appeal shall be re‑entered at its original number and‑ shall be heard and disposed of by a Single Bench of this Court in accordance with law. Having regard to the facts of the case, we make no order as to costs. H. B. T. Review application accepted.