1996 PLP 566 (MLD)

4. Before, I touch the meritorious averments of the learned Advocate, I consider it necessary to point out that on 29-5-1995, when this matter was fixed for Katcha Peshi and Mr. Shamsul Arfin, the learned Advocate for the applicant was arguing the matter, Mr. Khalid Habibullah appeared in the Court and showed his anxiety on behalf of the respondent to say something. I cannot put a seal of appreciation on the conduct of the learned Advocate who intercepted at the stage of Katcha Peshi but I overlooked the same on account of scandalous delay of 20 years already taken place in disposal of the case by the trial Court and I wanted to dispose of this revision as soon as possible. However, this indulgence further encouraged the learned Advocates not only to argue the matter on the point specifically raised in the memorandum of this revision but also on several other points at bar including applicability of several provisions of law such as, Order 1, Rule 10, Order 22, Rule 10, Order 41, Rule 20, of C.P.C. besides several Articles of Limitation Act. Admittedly none of the points were raised before the trial Court. In these circumstances, burdening this Court with such points which were never raised before the trial Court by taking advantage of unlimited patience of this Court could be avoided and it would be appreciable that the same be avoided.

5. This reality may not be denied by any sensible person that procedural provisions of law are introduced for advancement of justice and not to stifle the justice by hanging it with the ropes of technicalities because such an attitude may deprive the rightful persons from their rights which is strictly prohibited in our religion. Reference in this regard can be made to a tradition of the Holy Prophet (peace be upon him) quoted in a case reported as Kashmir Corporation v: P.I.A. in PLD 1995 Kar.

301. But these lines do not mean to ignore any provision of Civil Procedure Code. The Courts are bound to follow these provisions in their true sense and with their true spirit so that all other relevant provisions remain linked with one another and none of them becomes practically redundant at the time of its application. I have no hesitation to say that if any interpretation of any provisions of law on the principles of natural justice keeps the said spirit and sense intact, then the same must be preferred instead of falling in the clutches of technicalities. On the basis of these propositions, I decided to touch the main points urged by the learned Advocates of the parties in the forthcoming paragraphs.

6. The learned counsel for the respondent supported the impugned order of the trial Court on three grounds: one of which was specifically raised by the petitioner in the memorandum of revision while the other two grounds were mentioned in the counter-affidavit filed by the respondent. These grounds can be summarised as under: -- (a) Interpretation of Order 22, Rule 4, C.P.C. as discussed by the trial Court was in accordance to the spirit of legislation; (b) Application filed under Order 22, Rule 4, C.P.C. by the petitioner before the trial Court was time-barred; and (c) The present revision was not maintainable. So far as the delay in moving an application for impleading the L.Rs. of a deceased party is concerned, I am of the view that if any party of a suit fails to bring such an application within time and the said delay can be explained in the light of facts and circumstances of the case and no prejudice is caused to any of the contesting parties if these L.Rs. are brought on record, then the delay can be overlooked. Reliance in this regard can be placed on the case of Walayat * Hussain v. Dost Muhammad (1994 CLC 544) and Muhammad Aslam v. The Custodian, Evacuee Property (1994 CLC 2030). It was observed in the case of Walayat Hussain (supra) by a Single Bench of the Lahore High Court as under: -- "It was true that application for setting aside of the abatement and substitution of the deceased defendant's legal representatives was filed beyond time but in the facts and circumstances of the case noted above, the delay deserved to be overlooked. Contrary course shall cause grave miscarriage of justice and punishment awarded shall be misplaced. In result of judgments of the lower Courts defendants earned a premium and the plaintiff suffered undeserved punishment. " Similarly the Hon'ble Supreme Court .of AJ&K observed in the case of Muhammad Aslam (supra) that: -- "It is a settled proposition that in appropriate cases the application to implead legal representatives filed after limitation can be allowed if the circumstances so justify in this regard." In the present case, it is not known whether any separate application for condonation of delay or any such prayer was made or not in the application moved under Order 22, rule 4, C.P.C. but from the impugned order it can be understood that no such point was urged by the respondent when application under Order 22, rule 4, C.P.C. was argued before the trial Court. This sole reason can be treated sufficient to strike down contention of the learned Advocate for the respondent regarding delay, if any, in moving application by the petitioner under Order 22, Rule 4, C.P.C. but I consider it necessary to take into consideration several other facts and circumstances too which are reflected from the record to deal with the point of delay in moving application under Order 22, Rule 4, C.P.C. by the L.Rs. of the deceased defendant. Admittedly the petitioner (L.Rs. of the deceased) reside at Bombay in India and their deceased father Saifuddin was also an Indian National. Although he was technically knocked out from filing his written statement before the trial Courts, yet he continued fighting for his rights with the present respondent till his death during the last twenty years. Position of the L.Rs. is not different from the deceased predecessor because they also cannot travel freely from India to Pakistan. These facts and circumstances convince me not to burn the rights of these L.Rs. in the furnace of technicalities merely on the ground of delay of few weeks in moving an application particularly in comparison to the delay of more than twenty years during which the suit could not be disposed of by the trial Court. It is on account of such type of scandalous delay that the poor citizens avoid to fight for their rights in the Courts and I have no doubt in my mind that such Courts are responsible themselves for shattering the confidence of .the Courts in the eyes of citizens. Besides these important aspects, I enquired Mr. Khalid Habibullah, the learned counsel for the respondent to tell this Court as to what prejudice would be caused to the respondent/plaintiff if the legal representatives are brought on record. The learned counsel lukewarmly conceded that no prejudice may be caused to the respondent. On account, of these reasons. I do not consider it proper that weapon of technical delay in moving an application be used as hurdle in promotion of principles of natural justice. In these circumstances, the delay in moving an application under Order 22,. Rule 4, C.P.C. can be overlooked particularly when no prejudice is caused to the opposite-party and the matter can be decided on merits.

7. Another ground also urged at bar was about the maintainability of this Revision. It was stressed by the learned counsel for the respondent that this revision is not maintainable because the matter can be agitated in an appeal. But the learned counsel failed to satisfy the Court that only appeal could be filed against an order of dismissal or rejection of an application under Order 22, Rule 4, C.P.C. I have no doubt in my mind that in the circumstances of the case, the petitioners were fully justified to seek their remedy by filing this revision and not an appeal. There may be circumstances where revision may not be maintainable if an application under Order 22, Rule 4, C.P.C. is dismissed or allowed but it is not correct that only appeal can be maintainable in each and every case. For example in case of an ex parte order against a deceased defendant during his life, a revision would not be maintainable against the finding of a Court if it comes to a conclusion that bringing legal heirs of deceased defendant is not necessary. Reference in this connection can be made to the case of Shamsher Narain Singh v. Muhammad Safe reported in AIR, 1926 E Pat.

29. But, in a case where there is no ex parte order and defendant is contesting against the plaintiff with full force then refusal by the Court to bring his L.Rs. on record after his death would attract only Revision. Reference in this regard can be made to the case of Rajappa v. Andalamal reported in AIR 1957 Mad.

236. Same is the legal position of present revision. The trial Court had passed ex parte order against the father of present petitioners on the ground of his failure to file written statement but the said order was set aside by this Court as detailed in para. 2(e) above. At the time of death of the deceased, there was no ex parte order against him and he was contesting the suit with full force. Therefore, in the light of Rajappa case (supra) the contention of the learned Advocate for the respondent has no force and the revision is maintainable. Besides the above reasoning, this point can be considered from another angle too. Prior to the Law Reforms Ordinance, 1972 abatement of suits was common if a plaintiff failed to move an application for bringing the legal heirs on record within specified time but after the amendments brought in Rule 4, Order 22, C.P.C. through L.R.O. 1972, a suit or an appeal does not abate for non-impleading of L.Rs. even if no application is made for the said purpose. It continues to its conclusion as if the plaintiff was still alive. In these circumstances if the legal hems of a deceased defendant are refused by a Court to be brought on record, then the result is obvious i.e. that the Court may proceed ex parte or without being opposed by anyone in favour of the plaintiff by keeping the L.Rs. of the deceased to remain spectators only. Such' decision of the Court would amount to crucify justice particularly in the present case because this Court had already not approved such an act in the previous revision. In the light of this reason also, the contention of the learned Advocate for the respondent does not appear to be convincing. I, therefore, hold that in view of the facts and circumstances as discussed above, this revision is maintainable.

8. The main bone of contention between the controvertists in this revision relates to construction of Order 22, Rule 4, C.P.C. The portion under discussion of the relevant provision to be construed i.e. sub-rule (4), Rule 4, of Order 22, C.P.C. runs as under: "It shall not be necessary to substitute the legal representatives of any such defendant who has failed to file a written statement or has failed to appear and contest the suit at the hearing; (Underlining is my own). In my view the opening sentence of the said provision i.e. "It shall not be necessary" certainly differs in its sense from that "It shall be unnecessary". May this view be accepted or not by any of learned advocates but, undoubtedly, this sentence does not give an impression of "prohibition.". Therefore, in my view if there is any difference of opinion among the parties 'regarding necessity of bringing L.Rs. on record and if any of the contesting parties, may be the plaintiff/plaintiffs or defendant/defendants, wants to bring L.Rs. on record after the death of any defendant then there is no prohibition. Therefore the words "It shall not be necessary" be not construed in the sense that it is prohibited.

9. Notwithstanding to this interpretation of the words i.e. "It shall not be necessary", contention of the learned Advocate for the respondent can be taken into consideration from another angle too. The relevant portion of the said provision can be read as under: -- (a) It shall not be necessary to substitute the legal representative of any such defendant who has failed to file a written statement. or (b) It shall not be necessary to substitute the legal representative of any such defendant who had failed to appear and contest the suit at the hearing. From the impugned order it appears that the learned Court has treated the word "or" used in the provision in the sense of "either" or disjunctively. But the question arises: What would be the legal position if written statement has not been filed but the defendant is appearing and contesting the suit at the hearing or vice versa? and Whether the ward "or" lives an impression of "conjunctiveness" or otherwise? I am of the view that the word "or" 'used in sub-rule (4) of Rule 4 Order 22, C.P.C. gives both impressions in different situations. For example if death of defendant does not affect the interests of his legal heirs or in case the suit is decreed but the decree cannot be legally executed against the legal heirs then the word "or" would be read as "either" and in such case, there may not be any necessity of bringing the L.Rs. on record if the deceased defendant had either failed to file written statement or had failed to appear and contest the suit at the hearing. But, in case the interest of L.Rs. is affected directly or indirectly in the shape of execution of decree if the suit is decreed or in the shape of appeal filed against them, in case the suit is dismissed, or in any other shape whatsoever it may be then it is not proper for a Court to dismiss an application under-Order 22, Rule 4, C.P.C. no matter the same is moved by the plaintiff of by the L.Rs. of the deceased defendant. In such situation the word "or" has to be construed in the sense of conjunctive ness. In the present case, no doubt the deceased defendant had failed to file his written statement but he was appearing and contesting the suit at the hearing as a right which on denial by the Court had been restored by this Court by interpreting this provision in that sense. In the present case if the legal heirs are not brought on record and suit is decreed in favour of the plaintiff/respondent or dismissed then these legal heirs may face hardships at the time of execution of decree or in case an appeal is filed against them. In this regard contention of the learned counsel for the plaintiff that these legal heirs can contest the matter at the time of execution of decree or appeal as the case may be, does not seem to be convincing or in accordance to the actual spirit of justice. Hence the same cannot be embraced by this Court.

10. It may be interesting to point out that the last few lines of the impugned order appear to me not only novel but also symbol of. dogmatism. These lines run as under: "....they (mean L.Rs.) are only at liberty to cross-examine the plaintiff and if they have engaged their counsel, their counsel could only address the Court for the proper guidance to the Court to reach to right conclusion. " Can any Court allow any counsel to address the Court on behalf of any such person who is not a party in the matter ? or To whom the plaintiff would make party as respondent in an appeal in case the suit is dismissed and if there was none as defendant after the death of defendant during the pendency of suit ? Whether the dead person or The L.Rs. who were not brought on record ? I leave these questions without any further observation for consideration of the learned Senior Civil Judge, who dismissed the application under Order 22, Rule 4, C.P.C. by expressing his view that a counsel could address the Court for such legal heirs who were refused to be brought on record, and for the learned Advocate also who supported such an impugned order of the learned trial Court.

11. The learned counsel for the respondent specifically expressed his apprehensions that the L.Rs. if permitted to be brought on record, may re-open different issues by claiming that they have independent rights. To wash-away such baseless apprehension based on presumptions, I consider it necessary to make it clear that the petitioners in this revision (i.e. the L.Rs. of the deceased defendant) only step into the shoe of their predecessor to follow his legacy and death of their deceased predecessor does not provide them any premium. Therefore, right of legal heirs after impleading them as legal representatives of deceased defendant is neither lower nor higher or independent of the right of the deceased because death of any defendant cannot be used as rod of right to get any concession, relexation, penalty or sympathy for any body. However, any effort or will of the respondent/plaintiff to get final order in the suit by keeping the L.Rs. of the deceased defendant out of the suit in any manner whatsoever is not a fair play particularly when no prejudice is caused to him in allowing the application under Order 22, Rule 4, C.P.C. and the legal heirs are wishing to contest the suit with all its consequences. The just and appreciable path leading towards justice requires the parties to play their cards fairly on merits. In this regrad the Courts can play their role most effectively by crossing all hurdles, if any, to promote the said cause.

12. In view of the aforesaid reasons, this Revision deserves acceptance which is accordingly allowed. Resultantly the impugned order of the learned Senior Civil Judge, Karachi (South) dated 31-1-1995 is set aside. L.Rs. of the deceased defendant be brought on record and the matter would proceed now from the stage as it was when defendant Saifuddin died. The trial Court is also directed to dispose of this "20 years old" matter expeditiously instead of keeping it as "antique". It would be appreciable if the suit be not adjourned in future for more than 7 days after every hearing unless there are unavoidable circumstances if it cannot proceed from day to day. No order as to costs in the circumstances of the case. A. A./S-1181/K Case remanded.