1985 PLP 1758 (SCMR)

‑‑‑Art. 185‑‑Supreme Court Rules, 1980, O. XIII‑‑Appeal to Supreme Court‑‑Impleading of parties‑‑Appellant and two out of three respondents had died‑‑‑Legal representatives were brought on record in appeal while appeal was pending before letters Paten. Bench of High Court‑‑Legal representatives of such deceased parties, filing application for substitution after grant of leave to appeal on notice‑‑No ground for such mistake committed by appellant made out‑‑Appeal as filed, held, was incompetent and did not conform to requirements of O. XIII, Supreme Court Rules, 1980‑‑No reason at all available for such a mistake having been committed and record of case having remained without correction so long‑‑While allowing petition filed by legal representatives of some of respondents, Supreme Court recalled order of granting leave to appeal and dismissed petition for leave to appeal as incompetent in circumstances. Nawab Karim v. The Chief Settlement Commissioner and 2 others 1970 S C M R 72; Elahi Bakhsh v. Budha and another 1968 S C M R 328 and Sheikh Shabbir Hussain v. Abdul Raoof and another 1977 SCMR 287 ref. Evacuee Trust Property Board v. Sh. Hameed Elahi and another P L D 1981 S C 108; Mst. Murad Begum etc. v . Muhammad Rafiq etc. P L D 1974 S C 322; Ghulam Qadir and others v. Abdul Sattar and another P L D 1984 S C 12 and Barkat Ali and others v. Maula Bakhsh P

1. D 1972 S C 307 distinguished. Maqbul Ilahi Malik, Advocate Supreme Court and Samad Mahmud, Advocate Supreme Court instructed by Akhtar Ali, Advocate‑on‑Record for Appellant. Malik M. Afzal, Advocate Supreme Court and Hamid Aslam Qureshi, Advocate‑on‑Record (absent) for Respondent No.

1. Raja Abdul Razzaq, Advocate‑on‑Record for Respondent No.3. Date of hearing: 18th March, 1985. SHAFIUR RAHMAN, J.‑‑Leave to appeal was granted to examine whether the High Court of Lahore in dismissing a constitutional petition on 8‑3‑1966 and the Appeal Bench in upholding such dismissal had not departed from, the law laic down by that very Court in Mst. Madina Begum v. Deputy Settlement Commissioner and others P L D 1968 Lah.

945. Before the facts of the case and the merits of the appeal are gone into, it is necessary to attend to an application filed wherein a prayer has been made to recall leave granting order on the ground that the earlier decision of the Lahore High Court taken note of stood reversed by the Supreme Court in Abdul Jabbar and others v. Abdul Waheed Khan and others P L D 1974 S C

331. Another, ground, and a more important one for that matter, taken up was that the appeal itself was not properly constituted as Mst. Aisha Bibi the appellant had died in 1968, the respondent No. 1 had died in January, 1975 and respondent No. 2 had died on the 30th of March, 1970. Their legal representatives) had been brought on record in the appeal while the appeal was pending before the Letters Paten; Bench of the High Court. The failure of the appellants to sue in proper name rendered the petition as well as the appeal itself defective and incompetent and leave granted on such record) must be recalled. When notice was served of the application filed on behalf of some of the respondents, the legal representatives the learned counsel filed an application dated 23‑2‑1985 seeking substitution of the appellant by her husband, son and daughter, of respondent No 1 by her widow, two daughters and four sons of whom one daughter and three sons are minor and of respondent No. 2 by a widow, four sons and three daughters. That application has come up for consideration alongwith the application filed by the legal representatives. The objection taken is correct on facts in so far as the petition for leave to appeal was filed on the 3rd of February, 1982 and leave to the appeal was granted or 19th of February, 1984. The objection by the legal representatives of some of the respondents was filed on 20th of November, 1984. The application by Ali Muhammad, the husband of Mst. Aisha Bibi for correcting the record was made on the 23rd of February, 1985. The only reason given for such a gross failure is that "the certified copy of the impugned judgment did not mention the names of their legal heirs, although in fact they had been duly brought on record before the decision was given by the High Court." We have E verified this ground from the record and find it to be palpably incorrect. The certified copy of the judgment filed with the petition on its face sheet showed "Order and full party name attached" and the very titled sheet of the Letters Patent Appeal incorporated the substitutions made from time to time in respect of each of the parties who died pending the appeal. There was, therefore, no ground at all for such a mistake having been committed. The learned counsel for Ali Muhammad, the petitioner, Submitted that Ali Muhammad being the husband of Mst. Aisha Bibi was one of the. legal heirs and could represent part of her estate and he had authorised the filing of the appeal which could not on that account be considered to be wholly defective. As regards, the defect partaining to the impleading of two respondents who were contesting the claim no such explanation or none whatsoever is available. It is clear, therefore, that the appeal as filed was incompetent and did not conform to the requirements of Order XIII of the Supreme Court Rules, 1980. It is true that this Court has ample power to remedy defects provided sufficient cause is shown or the conduct of the party is found to be faultless but in the case before us we do not find any reason at all for such a mistake having been committed and the record of this case having remained without correction so long. The cases where defaults of the parties were enforced against them are of Nawab Karim v. The Chief Settlement Commissioner and 2 others 1970 S C M R 72, Elahi Bakhsh v. Budha and another 1968 S C M R 328 and Sheikh Shabbir Hussain v. Abdul Raoof and another 1977 S C M R

287. The learned counsel for the petitioner Ali Muhammad has referred to decisions of this Court in Evacuee Trust Property Board v. Sh. Hameed Elahi and another P L D 1981 S C 108, Mst. Murad Begum etc. v. Muhammad Rafiq and others P

1. D 1974 S C 322, Ghulam Qadir and others v. Abdul Sattar and another P L D 1984 S C 12 and Barkat Ali and others v. Maula Bakhsh P

1. D 1972 S C 307 in order to claim the indulgence of this Court. All the cases cited by him relate to cases where pending a petition or an appeal in this Court the death of' a party had taken place and the legal representatives were not brought on record within the period of 90 days and the Court held that there was no automatic abatement on such failure and that there was sufficient cause. There is no such case where an appeal when instituted itself was so defectiv and the defect was removed without showing sufficient cause. In the case of Murad Begum there was defect in the decree whereunder the legal representatives were impleaded in appeal in this Court when the person whose legal representatives were impleaded was herself alive and was allowed to be substituted as the mistake was traceable to the decree of the Court and not to the party. We find that the reason given by Ali Muhammad for instituting such a defective petition and for allowing it to remain so for such a long period is not at all plausible or acceptable. As a matter of fact, the reason given by him gets contradicted from the record itself. In such a situation, we cannot but hold that the petition as filed was not properly constituted and there is no appeal properly filed before us. In the circumstances, while allowing the petition filed by the legal representatives of some of the respondents, we recall the order granting lea‑e to appeal and dismiss the petition for leave to appeal as incompetent. M. B. A. Order accordingly.