P L D 1991 Supreme Court 601 (PLP)

NASIM HASAN SHAH, J.‑‑‑The appellants, who are unsuccessful defendants, seek reversal of the judgment of the Lahore High Court dated 3‑11‑1979 whereby their Regular Second Appeal was dismissed. The facts, in brief, are that the plaintiffs/respondents challenged the order of the Collector dated 17‑9‑1960 refusing to redeem the mortgage. The evidence of the parties in the suit was closed on 26‑4‑1963 and the case was adjourned for arguments. On 9‑9‑1963, the date fixed for hearing of the arguments, none of the parties appeared before the Court. Accordingly, no arguments were heard and the Court fixed 12‑9‑1963 as the date for announcement of the judgment. The judgment was announced on 12‑9‑1963 on which date the suit was decreed. The appellants challenged the judgment and decree by an appeal before the District Judge. Before the Appellate Court the appellants submitted an application that as two of the plaintiffs Rehmat Ali and Shahab Bibi had died after close of the evidence and before the pronouncement of the judgment the suit should be deemed to have abated. This application was, however, rejected on the ground that the legal representatives of Mst. Shahab Bibi were already on record and as regards Rehmat Ali though he had died after the conclusion of the evidence of both the parties and before the pronouncement of the judgment but the provisions of Order XXII, Rule 6 of the C.P.C. preserved the proceedings in such an eventuality. The appellants after rejection of their above plea applied under Order XXIII, Rule 3, C.P.C. alongwith an application under section 5 of the Limitation Act seeking permission to implead in their appeal the heirs of Rehmat Ali. This application was disallowed and the appeal having been filed against a dead person was held to have abated. Feeling dissatisfied, the appellants filed a Regular Second Appeal before the High Court but this too was dismissed by a learned Single Judge agreeing with the learned District Judge that the suit filed by the respondents had not abated because the death of Rehmat Ali took place after close of the evidence of the parties and before pronouncement of the judgment. Leave was granted to consider the question whether the date given for hearing of the arguments was not a step short of "the conclusion of the hearing" A for the purposes of? Order XXII, Rule 6, C.P.C. and hence the suit did abate for not bringing his legal representatives on the record. Sh. Abdul Rashid, learned counsel for the appellants, has submitted that the hearing could not be said to have concluded because hearing of arguments is a part of the proceedings under Order XVIII, Rule 2, C.P.C. notwithstanding the fact that the death of a party took place after the evidence was closed as the arguments were still to be proceedings had not concluded. We observe that the same plea was raised before the learned Single Judge also but it was repelled relying on the judgment of the West Pakistan High Court in Abdullah and another v. Mian Tafazzul Hussain and another P L D 1961 Baghdad‑ul‑Jadid

58. In this case too, the question was whether the hearing of a, case concluded only after the conclusion of the arguments and it was held that the hearing of arguments is not enjoined on the Court by the Civil Procedure Code, 1908 and all that can be said on the language used in Rule 2 of Order XVIII, . C.P.C. is that if the parties or their counsel want to address arguments, the trial Court has to give them an opportunity to do so, but the hearing of the arguments is not essential before disposing of the case. It was further held that if the arguments are not heard before the judgment is passed the hearing will, for the purpose of Order XXII, Rule 6 of the Civil Procedure Code, 1908 be deemed to have concluded with the conclusion of the evidence of the parties, but if the arguments are heard, the stage at which the hearing concludes is the one when arguments conclude. In this case, although a date was given for hearing of the arguments but none of the parties appeared to address the arguments which showed that in fact they were not interested in addressing the arguments and, indeed, did not wish to address arguments. In these circumstances, the Courts below were right in considering that for the purposes of Order XXII, Rule 6, C.P.C. the hearing will be deemed to have concluded with the conclusion of the evidence of the parties in this case. ' Sh. Abdul Rashid could not cite any authority in which a different view than that taken in P L D 1961 B.J. 58 has been taken by any Court in Pakistan and we consider that there is no need to unsettle the settled law which appears to be based on good sense and is also otherwise quite reasonable. The result‑ is that no case for interference has been made out. This appeal is, therefore, dismissed but since no one has appeared to contest it, there shall be no order as to costs. M.BA./A‑837/S ????????????????????????????????????????????? Appeal dismissed.