1994 PLP 2270 (MLD)

This petition under Article 199 of the Constitution was against an order of Additional District Judge, Sialkot dated 16-12-1992, affirming an order of the trial Court passed on 24-9-1992, restoring the plaintiff's suit for recovery of possession of a piece of property in Sialkot city for its trial on merits in accordance with law. Brief facts of the case are:

Suit for possession based on title was instituted by Mst. Rehmat Bibi on 17-5-1990 against Muhammad Riaz petitioner in the Civil Court at Sialkot. Petitioner resisted the suit. Trial Court raised necessary issues arising for decision from the pleadings of the parties and postponed the suit for taking of evidence on 19-1-1991. Prior to it, the suit was transferred by an administrative order to another Court. On the date already fixed in the suit, the transferee Court issued notice Pairvi to the counsel for the parties for 13-2-1991. On the adjourned date, counsel for the plaintiff informed the Court about the demise of the plaintiff and requested for time for filing of an application of the substitution of legal representatives. The case was, consequently, adjourned to 2-3-1991. On the adjourned hearing counsel for the deceased plaintiff again requested for time because he had not been able to maintain contact with the legal heirs of the deceased plaintiff. Therefore, the hearing was adjourned to 24-3-1991. On 24-3-1991, the Presiding Judge was on leave and the case was adjourned for filing of the application for substitution of legal representatives on 28-3-1991. On this date of hearing, none appeared for the plaintiff, whereas the counsel for the defendant was in attendance. Consequently, the suit was dismissed for non-prosecution by the trial Court by observing that the plaintiff may have been left with no interest in the suit. On 30-7-1992, the legal representatives of the deceased plaintiff applied to the trial Court for restoration of the suit dismissed for non-prosecution on 28-3-1991. Defendant to the suit resisted the restoration application. It was stated that besides absence of sufficient cause for restoration of suit, the petition for restoration was barred by limitation. Without taking evidence but hearing arguments on merits of the restoration application, the trial Court, vide its order, dated 24-9-1992 restored the suit for its trial on merits. Petitioner assailed the restoration order in revision before the District Judge, Sialkot who marked the revision for hearing to an Additional District Judge in the District. Vide order, dated 16-12-1992, the revision was dismissed. Hence, this petition in Constitutional jurisdiction at the instance of the petitioner. It was urged that there was neither sufficient cause for restoration of the suit, nor was the petition filed in time. Further, no application under section 5 of the Limitation Act, 1908 accompanied the restoration application for explaining the delay. Original plaintiff Mst. Rehmat Bibi died on 22-12-1990. List of legal representatives of deceased plaintiff accompanied the plaint as required by rye 26 of Order VII, C.P.C. Its copy was not filed alongwith the writ petition, nor was its record shown at the hearing. Therefore, it was difficult to ascertain as to who in the event of death of the plaintiff was required to intimate such fact to the Court. Fundamental changes were introduced in Order XXII of Civil P.C. by Ordinance XII of 1972 and the concept of abatement of civil proceedings was wholly done away with. Present was a case of sole plaintiff upon her death, right to sue and continue the suit survived to her heirs. List of legal representatives of the deceased plaintiff was already on file of the trial Court. However, no intimation was given about the death of the plaintiff by a person nominated in the list of legal representatives. Nevertheless, the counsel for the deceased plaintiff informed the Court of the death of the plaintiff Therefore, the trial Court had the necessary information about the demise of the plaintiff and as for her legal representatives, their names were already on file of the trial Court in the list of legal representatives submitted by the deceased plaintiff alongwith the appellant. In view of the amended provisions in Order XXII, C.P.C., if no intimation is given about the death of parties to the suit, the Court can proceed with the suit and any order or judgment made in such circumstances shall be valid and binding on the parties, as if death had not taken place. There was no cavil with the above statement of law. Amended rule 9 of Order XXII, C.P.C. gave right to the legal representatives of a deceased plaintiff or defendant to apply to the Court passing the order or judgment for setting aside of it on proof of sufficient cause preventing their appearance before the Court. Application under rule 9, sub-rule (2) was required to be made within 60 days of the date of the order or the judgment. Section 5 of the Limitation Act, 1908 for explaining and condoning the delayed filing of the application for setting aside of the order or judgment passed under rule 3 or 4 of Order XXII, C.P.C. was inapplicable. Previously, it was applicable to the petitions for setting aside of the abatement under unamended rule 9 of Order XXII, C.P.C. Corresponding amendments were also introduced in Article 171 of the Limitation Act, 1908. Without application of section 5, cases could be visualized of injustice, upon expiry of the period of limitation prescribed in Article 171 of the Limitation Act, 1908. Therefore, desirability of making section 5 of the Limitation Act applicable to the applications under sub-rule (2) of rule 9 of Order XXII, C.P.C. required consideration by the appropriate quarter. Obviously, adjudication under sub-rule (2) of rule 3, sub' rule (3) of rule 4 of Order XXII, C.P.C. was on merits, though in absence of the deceased party. The term `order' has been defined in section 2 (14) of C.P.C. and `judgment in subsection (9) of section 2 ibid'. Therefore, the term `order' in sub-rule (2) of rule 3 and sub-rule (3) of rule 4 in Order 01' C.P.C. contemplated adjudication on merits. Article 171 prescribed 60 dad from the date of such an order for setting aside of it. An order for dismissal for non-prosecution which, in fact, was an order for dismissal of the suit for default in appearance, in my view, was not contemplated in the aforesaid sub-rules of rules 3 and 4 of Order XXII, C.P.C. In the instant case, the plaintiff was dead. Her counsel had informed the Court about her death. Authority given to him come to an end with the demise of the plaintiff. Therefore, default in appearance could not be a ground for dismissal of the suit on this score. In my view, sub-rule (2) of rule 9 of the Order XXII, C.P.C. was inapplicable to the fads of this case. Instead, proper rule to apply shall be rule 9 of Order 9 read wiih section 151 of the Code of Civil Procedure. Section 5 was applicable to the applications under rule 9 of Order 9, C.P.C. It shall be of some advantage to notice that in the commentary of Civil P.C. by Aamar Raza, under rule 3 of order XXII (page 711) it is noted that "however, if the Court comes to know of the death of the plaintiff as for instance where the sole plaintiff dies, but no application under sub-rule (1) has been made, the Court should itself send notice to the legal representatives nominated by the deceased under Order 7, rule 26". Similarly, at page 721 of the book, an observation to the effect "the Court can now even implead legal representatives suo motu on the basis of lists given under Order 7, rule 26 and Order 8, rule 13" existed. No authority was, however, quoted by the learned commentator in support of his view. Opinion expressed above by me respecting applicability of rule 9 of Order 9, C.P.C. to the facts of the instant case found support from the cases in Moulvi Noor Ahmad v. Qari Raza Al Mustafa Azami and 3 others 1989 CLC 1439 (Karachi). Mst. Iffat Masood and 2 others v. Rehmat All PLD 1990 Lah. 359 (this case was decided by me), Mst. Umatullah v. Maqbool Hussain and 4 others 1990 MLD 2263 (Lahore). Since the suit was dismissed for non-prosecution in absence of the legal representatives of the deceased plaintiff and they expressed no knowledge of it, sufficient cause was made out deserving restoration of the suit for trial on merits. Therefore, it shall be inequitable to interfere for stopping the decision of suit on merits between the parties. The result, therefore, is that writ petition must stand dismissed in limine. Records be returned. H.B.T./M-1734/L??????????????????????????????????????????????????????????????????????????????? Petition dismissed.