1989 PLP 1439 (CLC)

Shaikh Mushtaq for Defendant. CMA No. 4319/88 is an application under section 5 of Limitation Act read with section 151, C.P.C. CMA No.3101/88 is an application under Order 9, Rules 9 and 13 read with section 151, C.P.C. CMA No.2002/89 is an application under Order 19, Rule 2 for permission to cross‑examine Naeem Ashraf who had filed affidavit in support of CMA No.3101/88. CMA No.2003/89 is an application for filing of counter‑affidavit in reply to the affidavit submitted by Naeem Ashraf till the disposal of application for his cross‑examination. CMA No.2002/89 was granted by consent on 19‑3‑1989 and deponent Naeem Ashraf put himself in the witness‑ box and was cross‑examined by the Advocate of the defendant. CMA No.2003/89 is dismissed as it is not pressed. Hence now orders only on CMA No.4319/88 and 3101/88 are to be passed. Before sub‑rule (2) of Rule 3 of Order 22, C.P.C. was amended by Ordinance X11 of 1972 it read as under:‑ "Where within the time limited by law no application is made under sub rule (1) the suit shall abate so far as the deceased plaintiff is concerned and on the application of the defendant the Court may award to him the costs which he may have incurred in defending, the suit to be recovered from the assets of the deceased plaintiff. But now after the amendment the amended sub‑rule (2) reads as under:‑ "(2) Where within the time allowed by law no application is made or intimation is given under sub‑rule (1), 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." It would, therefore appear that a fundamental change has been introduced in this rule by Ordinance 12 of 1972. The provisions of previous sub rule (2) have been substituted by the present sub‑rule (2). Now on failure to implead the plaintiffs L.Rs. as parties within the time allowed by law i.e. 90 days the suit will not abate in so far as the deceased plaintiff is concerned. The Court may proceed with the suit notwithstanding failure to implead. It will be seen that now if no intimation is given of the death of plaintiff or no application is made under sub‑rule (1) of Rule 3 of Order 22, C.P.C. and the Court continues with the adjudication of the suit the decree will be valid and binding and shall have the same effect as if death had not taken place. Similarly as is in the present case, if the Court comes to know of the death of a plaintiff, the sole plaintiff having died but no application under sub‑rule (1) having been made it is the duty of the Court itself to send the notice to the L.Rs., nominated by deceased under Order 7, Rule 26, C.P.C. Where any order is made or a decree is passed in the absence of the legal representatives it will be binding on them but they may apply to have it set aside under the amended sub‑rule (2) of rule 9 of Order 22, C.P.C. As a result now no abatement takes place. Where legal representatives are not impleaded and an order or judgment is pronounced in their absence they can apply to have it set aside under sub‑rule (2) of rule 9 of Order 22, C.P.C. on their showing sufficient cause. Such application is to be made, within 60 days of the date of the order or judgment. Article 171 of Limitation Act applies to such a case. Now section 5 of Limitation Act is not applicable to applications to set aside abatement under rule 9 though prior to the amendment it was applicable. The disposal of this suit was effected by an order of dismissal for non appearance of plaintiff under Order 9, Rule 8, C.P.C. and not by a judgment on adjudication of issues or any other order as such the L.Rs. of the deceased can apply under Order 9, Rule 13 C PC. for restoration of the suit, to which section 5 of Limitation Act also applies. Such applications for restoration under Order 9 rule 13, C.P.C. as well as under section 5 of Limitation Act have been made. The L.R. of the plaintiff had filed affidavit in support of the application in which he had alleged that his father late Moulvi Noor Ahmed was conducting the case and he and other L.Rs. had little or no information about the case. He has also stated that he had not received any information from the Court that he was required to attend the case as his name was brought as one of the L.Rs. of his father in the list of the plaintiffs. He has stated that the bailiff had come and obtained his signature on a notice without delivering its copy to him. He got the impression that enquiry was being made about the L.Rs. of his deceased father. It would appear that the notices were in English and the form of the notices is such that the applicant might not have followed therefrom as to whether his name was brought on record in place of his father as L.R. and he was required to continue the suit specially when he was not aware of the filing of the suit by his father. The applicant was cross‑examined by the defendant's counsel. He has shown his ignorance about this suit and the orders passed therein. He has also stated on oath in his cross‑examination that he could not read English. He has stated that the bailiff again came to him on 24‑4‑1988 alongwith the Advocate of the defendant for execution of the costs of decree passed in this suit whereupon he came to know of this suit. The application for restoration has been filed on 25- 5‑1988. It is within the period of limitation. Even otherwise section 5 of the Limitation Act would apply to the application under Order 9, Rule 13, C.P.C. and the delay if any is condoned in view of the above circumstances. Hence I allow C.M.A. No.3101/88 and set aside the ex parte decree dated 22‑11‑1987 and restore the suit to its original number. AA./N‑180/K Suit restored.