1990 PLP 184 (CLC)

1986 CLC 2410(21; 1969 SCMR 257 and 1970 SCMR 554 rel. Abdur Rashid Abbasi for Appellants. Kh. Muhammad Saeed Khan for Resporidents. Date of hearing: 4th June, 1989. This appeal is directed against the judgment and decree of the District Judge, Muzaffarabad, passed on 2nd of March, 1987, whereby he dismissed the appeals (Nos 20/86 and 21/86) of the appellants on account of the same having abated for non‑impleadment of the legal representatives of Abdul Ghafoor, deceased respondent therein, within the period of limitation.

2. The brief facts giving rise to this appeal are that Maulvi Abdul Ghafoor along 'with his two sons (respondents Nos.l and 2) and two daughters (respondents Nos. 4 and 5) filed two separate suits in the Court of Additional Sub‑Judge Muzaffarabad, one against the appellants No1 and 3 to 5 for cancellation of sale‑deed executed by appellant No.l in favour of appellants Nos. 3 to 5 and registered on 27th of February, 1972 and decree for possession in respect of land comprising Khasra Nos. 34 min, 135 and 136 measuring 43 kanals 7 marlas situate in village Subri, Tchsil and District Muzaffarabad, and the other against appellants No.l to 3 for the cancellation of sale‑deed executed by appellant No.l in favour of appellants No.2 and 3 and registered on 26‑3‑1972 and decree for possession in respect of land comprising khasra No. 34/1 measuring 5 kanals 5 marlas, situate in Village Subri, Tehsil and District Muzaffarabad. Both the suits were consolidated and heard together by the trial Court, which, vide its judgment and decree dated 30‑1‑1980, decreed both of them. The defendant appellants preferred separate appeals against the above judgment and decree of the trial Court before the District Judge, Muzaffarabad, who set aside the same and dismissed both the suits vide his consolidated judgment and decree dated 6‑3 1984. But on appeal, the above judgment and decree of the District Judge was set aside by the High Court vide its judgment and decree dated 8‑2‑1986 and the cases were remanded back to the District Judge for deciding them afresh in accordance with law. After the above remand, the District Judge dismissed both the appeals on the ground that on account of the failure of the appellants to implead the legal representatives of Maulvi Abdul Ghafoor respondent therein within the period of limitation prescribed by law, the same had abated. It is against this judgment and decree of the District Judge dated 2‑3‑1987 that this single appeal has been filed.

3. I have heard the learned Counsel for the parties and have also gone through the record of the case. It is contended by the learned Counsel for the appellants that the appeals of the appellants could not be dismissed on the ground of the same having abated inasmuch as Maulvi Abdul Ghafoor respondent had died after the hearing of the arguments in them by the District Judge. In support of his above contention, he has referred to Order 22,.Rule

6. Civil Procedure Code. P.L.D. 1979 S.C. 18 and P.L.D. 1974 SC.'

312. He further contended that the legal representatives of the said deceased were made `" parties as such in the appeals filed against the judgment and decree of the District Judge before the High Court and, as such, there was no necessity of filing any fresh application before the District judge for bringing on record the legal representatives of Maulvi Abdul Ghafoor respondent after the case was remanded to him by the High Court for fresh decision in accordance with law. He has referred to 1986 C L C 2410 (2), 1969 S.C.M.R 257 and 1970 S.C.M.R. 554 in support of his above contention.

4. The learned Counsel for the respondents, on the other hand, has contended that the appellate Court has rightly held the appeals of the appellants as having abated because Maulvi Abdul Ghafoor respondent had died on 24‑2 1984 whereas the applications for bringing his legal representatives on record before the District Judge were filed on 10‑8‑1986 and 15‑10‑1986 respectively which were undisputedly riled beyond the period of limitation prescribed for bringing the legal representatives of a deceased party on record.

5. I have given my due consideration to the above contentions of the learned Counsel for the parties, after which I am of the opinion that in view of the facts and circumstances of the case, the District Judge had erred in holding the appeals of the appellants as having abated on account of non‑impleadment of the legal representative of Maulvi Abdul Ghafoor deceased respondent within the period of limitation fixed for the purpose. It is undisputed and fully borne out from the record of the case that the learned District Judge had heard the arguments in the appeals of the appellants, filed against the respondents, on A 16‑2‑1984 and fixed the next date of hearing for pronouncement of the decision therein, which means that Maulvi Abdul Ghafoor respondent had died after the hearing of the arguments in the appeals. Thus, the District Judge was quite competent to pronounce the judgment notwithstanding the death of Maulvi Abdul Ghafoor respondent, which had occurred during a time between the conclusion of the hearing and the pronouncement of the judgment. The District Judge had pronounced the judgment in the said appeals on 6‑3‑1984. The appeal was filed against the above judgment and decree of the District Judge before the High Court on 24‑5‑1984 i.e. within 90 days from the date of death of Maulvi Abdul Ghafoor deceased respondent in which the legal representatives of the said deceased respondent were impleaded as such. Thus, when the legal representatives of the deceased respondent had already come on record before the High Court, then on remand the appeals of the appellants could not be dismissed by the District Judge on the ground that the appellants had not filed applications for bringing the legal representatives of the deceased respondent within the time prescribed for the purpose. In view of the fact that the legal representatives of the said deceased respondent had already been brought on record in the appeal before the High Court, there was no necessity of making any fresh application for impleading them as such before the District Judge. In this view of the matter, the District judge has erred in holding the appeals of the appellants before him as having abated on account of their failure to make an application for bringing the legal representatives of the deceased respondent on record within 90 days from the date of his death. The District Judge ought to have decided the appeals on merits as the legal representatives of Maulvi Abdul Ghafoor deceased were already substituted in the appeal before the High Court.

6. In 1986 C L C 2410 (2), it was held that where the legal representatives of a deceased party were impleaded on revision pending in the High Court, there was no necessity of filing an application for bringing on record the legal representatives of the deceased party in the suit pending before the trial Court and that the legal representatives brought on record in the superior forum would be sufficient and ensure in the suit as well. The above judgment was based upon the decision reported in 1969 S.C.M.R. 257 wherein it was held that where in an appeal against an interlocutory order, pending proceedings in the suit, the plaintiff‑appellant had died during the pendency of the appeal and his legal representatives were brought on record, substitution in appeal would be substitution for the purpose of the suit as well and it was not necessary to bring a fresh application before the trial Court to bring the legal representatives of the deceased as party on record of the suit. Similar view was taken in 1970 S.C.M.R.

554. Thus, in view of the above decisions of the superior Courts, there was no necessity for the appellants to bring any fresh application to substitute, on the record of the appeal, the legal representatives of Maulvi Abdul Ghafoor deceased respondent before the District Judge when they had already been brought on record before the High Court. For the reasons stated above, the judgment and decree of the District Judge is set aside and the cases are remanded back to him for fresh decision on merits in accordance with law. AA/374/H.C.A Case remanded,