1971 PLP 148 (SCMR)

WAHIDUDDIN AHMAD, J.‑This petition for special leave arises out of the judgment of a Division Bench of the High Court of West Pakistan, Karachi Bench, in Letters Patent Appeal No. 319 of 1966. By this judgment, the High Court dismissed the appeal. Briefly, the facts leading to this petition are that respondent No. 1, the Bank of Bahawalpur advanced a loan of Rs. 5,00,000 to Messrs Siddiq Textile Mill Limited, respondent No. 2, for a period of one year at the rate of 7 % per annum of interest on the mortgage of certain property on the 14th February 1963. On the expiry of one year the debt remained unpaid. Respondent No. I pressed for payment and Haji Siraj Din and other four persons executed letters of guarantee in favour of the Bank. The debt remained unpaid and respondent No. 1 filed Suit No. 153 of 1964 in December 1964 on the original side of the High Court of West Pakistan, Karachi Bench, for the recovery of the debt against the Mill and all the guarantors. In the suit, summons were issued to Haji Siraj Din but the service could not be effected on him as it was reported that he was not available at the time at which the bailiff went to serve the notice or his place of business was found closed. It appears that on the 8th November 1965, a representative of the Bank accompanied the bailiff and it was discovered that Haji Siraj Din had died on the 7th April 1965. On this information, the Bank started to ascertain the names of his legal representatives who were found to be 14 in number and applied under Order XXII, rules 9 and 4(2), C. P. C. on the 3rd January 1966, for setting aside the abatement and bringing the legal representatives on the record. This application was granted with the consent of the other respondents on the 14th February 1966. This order was challenged in the above‑mentioned Letters Patent Appeal by some of the legal representatives of Haji Siraj Din. The High Court came to the conclusion that attempt was made to conceal the death of Haji Siraj Din on the 8th November 1965, although the death has already taken place on the 7th April 1965. In these circumstances, it was not easy for the Bank to discover the death of Haji Siraj Din in time. It was further found that the legal representatives of the deceased were 14 in number which included women and children and that it took some time to ascertain their names. The petitioners have challenged this judgment in this petition for special leave to appeal. Mr. Ali Akbar, learned Advocate‑on‑Record for the peti tioners, has contended that there was no sufficient ground to make the application for bringing the legal representatives on record on the 3rd January 1966. He further contended that the abatement should not have been set aside as no formal application was moved for condonation of delay under section 5 of the Limitation Act. It was also contended that there was no need to implead the legal representatives as the suit could proceed against the surviving defendants. The contention of the learned counsel has not impressed us. After going through the record, we are satisfied that there was deliberate attempt on the part of the relatives of deceased Haji Siraj Din to conceal his death. This fact came to the knowledge of respondent No. 1 on the 8th November 1965. The respondent No. 1, therefore, could not make an application for bringing the legal representatives of the deceased on record till 8th November 1965. It will be noticed that respondent No. 1 filed an application to set aside the abatement and to bring the legal representatives of deceased Haji Siraj Din on the 3rd January 1966. The explanation of respondent No. 1 is that there were large number of legal representatives of deceased Haji Siraj Din and it was with difficulty that their names were ascertained. This explanation has been accepted by the High Court and no ground has been advanced to pursuade us to take a different view. In these circumstances, there is sufficient explanation for moving the application for setting aside of abatement in January 1966. The grievance of the petitioners that no formal application was made under section 5 of the Limitation Act has no far reaching effect on the merits of the case. The High Court was perfectly justified in observing that an oral application was made and that was quite sufficient to consider the question of condonation of delay. After going through the record, we are satisfied that the High Court has exercised its discretion in setting aside the abatement and bringing the legal representatives of Haji Siraj Din on sound judicial principles. The discretion has not been exercised in an arbitrary or capricious manner. Thus there is no ground to interfere with the impugned order. The petition is dismissed. Leave refused.