P L D 1973 Lahore 567 (PLP)

NASIM HASAN SHAH, J.

‑The facts which form the background ,of this application, have been given in detail in this Court's order, disposing of the application for maintaining status quo pending disposal of the appeal (C. M. 3448/66) passed on 18‑4‑1972, which may usefully be reproduced hereunder in extenso "This Is a Letters Patent Appeal against the order dated 1st November 1965 of S. A. Mahmood, J., whereby he dismissed tae writ petition of the appellant Ghulam Rasool against the order of the Settlement Commissioner exercising the powers of Chief Settlement Commissioner who transferred the entire premises to Chiragh Din deceased holding that Chiragh Din was the claimant and had a preferential right to the transfer of the house to the appellant who was a non‑claimant. (2) Chiragh Din died on the 20th of October 1963. The provisions of Order XXII of the Code of Civil Procedure are applicable to the Letters Patent Appeals preferred against the orders in writ petitions. It was so held in Abdul Ghani v. Settlement Commissioner P L D 1971 Lab.

59. The same view had been taken by the Supreme Court in Abdul Ghani v. Settlement Commissioner 1971 S C M R

98. The appellant for the first time on the 17th March 1972 moved two applications (C. M. 1063/72 for setting aside the abatement and C. M. No. 1061/72 for impleading the legal representatives of the deceased). The prayer made in C. M. No. 1061/72 was that "the legal heirs of the deceased may be brought on record as the legal representatives of the deceased". The Court,' passed an order on 21st of March 1972. which reads : "Order as prayed for subject to all just exceptions". There was no order passed on C. M. No. 1063/72 wherein the prayer was, to set aside the abatement. (3) The proposition is undisputed that unless the abatement is set aside, the legal representatives cannot be Impleaded. The order dated 21st of March 1972, whereby the legal representatives were impleaded, is open to exception and has no existence in the eyes of law. The relief in C. M. No. 1061/72 can only be granted if the abatement is set aside as prayed in C. M. No. 1063/72. (4) We may therefore, bear the petitioner‑appellant in) C. M. No. 1063/72."

2. We have heard Ch. Zamir Ahmad Khan, Advocate for the appellant, in support of C. M. No. 1063/72 submitted under Order XXII, rule 9, C. P. C. seeking the setting aside of the abatement of the appeal. Counsel admits that respondent No. 1 (Chiragh Din) died on 20‑10‑68, but states that the appellant could not implead the legal representatives of the deceased respondent in time as the counsel, who filed the appeal and was prosecuting it (Sh. Mahboob Llahi, Advocate) died in the meantime. However, on our query from Ch. Zamir Ahmad Khan, Advocate, as to the date of the death of Sh. Mahboob Elahi, he informed us that this occurred on 20‑8‑

70. The respondent Chiragh Din, however, died on 20‑10‑1968 and the appeal accordingly abated on or about 20‑1‑1969 and the application for setting aside the abatement should have been made by 20‑3‑1969. As counsel for the appellant (Sb. Mahboob Elahi) died on 20‑8‑1970 long after the expiry of the above‑mentioned dates, then appellant cannot, therefore, plead the circumstance of the said death of Sb. Mahboob Elahi in excuse of his default.

3. In the application filed under section 5 of the Limitation Act on 21‑6‑1972 for condonation of delay in filing the application for Impleading the legal representatives and setting aside of abatement, it is stated that the appellant bad after the death of respondent come to Lahore but on reaching the house of his counsel, Sit. Mahboob Elahi was informed by Sh. Ayub Elahi, Advocate that his father had already died. It is alleged that the appellant had told the learned Advocate, Sh. Ayub Elabi, that Chiragh Din respondent had died and had also enquired as to who would now conduct his case on which Sh. Ayub Elahi is alleged to have assured him that he would be conducting the cases of his deceased father. It is also alleged that the said learned counsel did not at that time inform the appellant of the legal effect of the death of the respondent. Consequently no further step to bring on record the legal representatives of Chiragh Din were taken. The above explanation at least makes one fact quite clear, namely, that the appellant had come to report the factum of Chiragh Din's death after 20‑8‑1970, although the latter had died nearly taco years ago, on 20‑10‑1968. The present counsel of the appellant has further stated that after the appellant had returned home, after meeting Sh. Ayub Elahi, Advocate, the High Court Office sent an intimation to him informing him that his counsel Sh. Mahboob Elahi had died and that he should make alternative arrangement for the prosecution of the appeal. This notice, according to Ch. Zamir Ahmad Khan, Advocate, was received by the appellant on 6‑10‑1971. The appellant allegedly again came to Lahore and again contacted Sh. Ayub Elahi, Advocate. On this occasion, the said learned Advocate is alleged to have refused to proceed with the case and to have returned the brief to the appellant. The appellant, thereupon, appears to have been resigned to his fate, but some counsel in Sahiwal allegedly advised him to engage the present counsel (Ch. Zamir Ahmad Khan) in order that the necessary further steps for prosecuting the appeal might be taken.

4. The order‑sheet of the proceedings of this appeal shows that Ch. Zamir Ahmad Khan, Advocate, appeared in Court for the first time on 16‑2‑1972 and made a statement that "respondent No. 1, Chiragh Din, has died and he would be taking steps to bring his legal representatives on record". In furtherance of this undertaking, two applications were submitted on 17‑3‑1972, namely, C. M. 1061 /72 for impleading the legal representatives of the deceased‑respondent and C. M. No. 1063/72 for setting aside the abatement. C. M. No. 1061/72 for impleading the legal representatives was granted on 21‑3‑1972, as already noted, but on 18.4‑1972 when the stay application (C. M. No. 3448/66) came up for hearing in connection with confirmation of the ex parte stay order, the Court held, as the text of its order reproduced in para. 1 above shows, that unless the abatement was first set aside, the legal representatives could not be impleaded and therefore the order dated 21‑3‑1972 purporting to implead the legal representatives of Chiragh Din deceased without first setting aside the abatement had no existence in the eyes of law.

5. The facts stated above show that the appeal had abated long before the death of Sh. Mahboob Elahi, the original counsel of the appellant. Since the parties live in the same house, no valid excuse can be adduced for not impleading the legal representatives of the deceased respondent within time or for applying for the setting aside of the abatement within a reasonable time thereafter. Even if the lapse that occurred before the death of Sh. Mahboob Elahi was to be condoned, it is further an admitted position that the appellant had on receiving information from this Court that his counsel had died and that he should make the necessary arrangements for the prosecution of his appeal on 6‑10‑1971, visited Lahore and was on this occasion informed by Sh. Ayub Elahi that he was not in a position to pursue his case and that the brief of his case was handed over to him. He, however, took no steps for making arrangements for his representation for another four months or so because it was only in February 1972 that he actually engaged his present counsel. The said counsel appeared in Court on 16‑2‑1972 and prayed for time for taking the necessary steps to bring the legal representatives on record. These steps were taken without much seriousness, as is evident from the fact that the earlier applications in this behalf were submitted after over one month namely on 17‑3‑1972 (C. M. 1061/72) for bringing on record the legal representatives and (C. M. 1063/72) for setting aside the abatement and these applications too were not accompanied by any application for condonation of the long delay that had occurred in filing them and explaining the causes for the said delay. This deficiency was made up some three months later, on 21‑6‑1972 when an application (C. M. 2527/72) to this end, was filed. The negligence and carelessness displayed by the appellant appears at every stage and it is manifest that he is not entitled to any Indulgence. Nor has any sufficient case for excusing the dealy for submitting the application for setting aside the abatement with so much delay been shown. The Court while exercising its discretion to excuse the delay that has occurred in the preferment of an application for setting aside the abatement, must do so on sound judicial principles. An abatement is not to be set aside lightly or as a matter of course because a valuable right has accrued to the party in whose favour the abatement operates. Therefore, unless sufficient cause is shown for excusing the delay in making the application for setting aside the abatement and for bringing on record the legal representatives of the deceased, the abatement cannot be set aside. In the instant case, no such cause has been shown as can persuade us to excuse the delay.

6. Our conclusion is that C. M. No. 1063/72 and C. M. 2527/72 cannot be accepted. The result is that L. P. A. No. 418/65 stands disposed of, as having abated. The parties are, however, left to bear their own costs. S.A.H. Order accordingly.