P L D 1973 Lahore 809 (PLP)

JAVID IQBAL, J.‑

This Letters Patent Appeal has been filed ‑by Sardar Noor Hussain appellant on the 3rd of January 1966. against the judgment dated the 14th of December 1965, of Mr. Justice S. Anwarul Haq (as his Lordship then was) whereby Writ Petition No. 254/R of 1963 of the appellant was dismissed. The appeal was admitted for hearing on the 12th of January 1966, but while it was pending, Subedar Major Muhammad Umar, respondent No. 2 died on the 23rd of July 1969, at the United Christian Hospital, Lahore. The appellant received on the 2nd of February 1970, a letter from the Superintendent Judicial, High Court, Lahore, intimating him that notice sent to respondent No. 2 had come back unserved with the remarks that he was dead and that, therefore, the appellant should implead the legal representatives of respondent No. 2 as parties in the case. Thereupon on the 14th of February 1970, Civil Miscellaneous No. 3283 of 1970 under Order XXII, rule 4 read with section 151, C. P. C. for impleading the legal representatives of respondent No. 2 (in which the names and addresses of the legal representatives were given) was drawn by the appellant. This application bears the stamp dated, the 27th of February 1970, and was in fact filed on that date of February 1970, for the first time. It was returned to the appellant on the 28th of March 1970, with the objection that the date of death of respondent No. 2 be supplied. The said application was refiled by the appellant on the 29th of March 1970, with the remarks that the date of death of respondent No. 2 was not known. The application was again returned to the appellant by the office on the same date for non‑compliance of the objection and the appellant was asked to provide the requisite information within a month. Finally the application was refiled on the 30th‑ of May 1970 for the third time and the objection of the office was complied with. On the 30th of May 1970, the office raised the objection that as the said application was barred by 157 days, an application under section 5 of the Limitation Act be filed within ten days for the condonation ‑of delay. Consequently on the 20th of June 1970, the application for condonation of delay (Civil Miscellaneous No. 3284 of 1970) was filed by the appellant. But the same was returned as it was without a stamp. Eventually the stamp was supplied on the 4th of July 1970, and the application was refiled. 2 In the meantime, on the 5th of. March 1970, Civil Miscellaneous No. 1025 of 1970 was filed on behalf of one of the legal representatives of respondent No. 2 in which it was prayed that since the legal representatives of respondent No. 2 had not been brought on record within the prescribed time limit, the appeal had abated. It was followed up by Civil Miscellaneous No. 3344 of 1970 filed by all the legal representatives of respondent No. 2 on the 20th of July 1970, with a similar prayer. On the 8th of February 1973, the appellant filed Civil Miscellaneous No. 572 of 1973 under Order XXII, rule 9 read with section 151, C. P. C. for setting aside the abatement and in reply to the aforementioned applications filed by the legal representatives of respondent No.

2. It was stated therein that the law of abatement was not applicable to the case and that even if It was applicable and the appeal had abated, an application under section 5 of the Limitation Act had already been filed for the condonation of delay.

3. Before hearing the appeal on merits the question which requires determination is as to whether or not this appeal has abated. Learned counsel for the appellant first argues that the law relating to abatement laid down in C. P. C. was not applicable to this case. It is argued that the present L. P. A. arises from a writ petition and that there was no provision in the rules for the Issue of writs laid down in the High Court Rules and Orders to the effect that Civil Procedure Code would be applicable to such proceedings. Learned counsel has referred to rules (iv), (v), (vi) and (vii) (High Court Practice and Procedure by Bala Muhammad Sadiq, 1969 Edition, pp. 269 and 270). These read as follows :‑ "(iv) Subject to the directions of the Court, notice of every application shall be served on all parties directly effected and for this purpose the applicant shall file within a week of the admitting order as many authenticated copies of the application and affidavits as there are parties to be served and the prescribed process fee, provided that at the hearing of the application any person, who desires to be heard in opposition to the application and appears to the Court to be a proper person to be heard, shall be heard, notwithstanding that he has not been served with a notice and subject to such conditions as to costs as the Court may deem fit to impose. (Rule 4 substituted by C. P. No. 44, dated 3‑9‑58). (v) An application under these rules may be made by the petitioner in person or through a counsel. (vi) Respondents in writ petitions should be required when notices are issued, to file written statements, counter‑affidavits, if any, and other documents on which they rely at least two days before the hearing. (vii) All questions arising for determination of such petitions shall be decided ordinarily upon affidavits but the Court may direct that such questions as it may consider necessary be decided on such other evidence and in such manner as it may deem fit and in that case it may follow such procedure and may pass such order as may appear to it to be just." It is argued that the aforementioned rules in respect of parties' service as well as procedure are entirely different from those laid down in the Civil Procedure Code. It is submitted that they are a Code within itself and are applicable for the entertainment, hearing and issue of writs by this Court to the exclusion of the Rules laid down in the Civil Procedure Code. It is argued that the rules framed by the High Court have been made under the provisions of the Constitution and are, therefore, not only of paramount importance but they supersede Civil Procedure Code. It is next argued that under the Law Reforms Ordinance, 1972 (Ordinance XII of 1972), Order XXII of the Civil Procedure Code has been modified as a result of which the law of abatement as was in force prior to the aforementioned Ordinance has ceased to be applicable. It is submitted that in respect of the C. P. C. the aforementioned Ordinance is in force at present and, therefore, under the new scheme there exists no rule for abatement. It is then argued that there is no abatement in the Privy Council because of rule 9 of the practice and procedure of that Court. Learned counsel relies on Chand and others v. Abdul Ghaffar and others (P L D 1965 Lah. 596), in which it was held that all the enabling provisions of the C. P. C. were applicable to the trial of writ petitions but not which laid down certain penalties for failure to comply with those provisions. It was further held that the writ jurisdiction conferred on High Courts by the Constitution was not part materia with suits and that, therefore, the provisions of Order XXII, rule 4, C. P. C. did not apply to writ petitions, consequently the omission on the part of the appellants to implead all the legal representatives of the deceased respondent within the specified time did not result in the abatement of the appeal.

4. We have brought to the notice of learned counsel Abdul Ghani v. Settlement Commissioner (1971 S C M R 98), in which it was held that the provisions of C. P. C. respecting abatement (Order XXII, rule 4) were applicable to writ petitions as well as the proceedings In Letters Patent Appeals arising out of orders passed in writ petitions. In that case one of several respondents in a writ petition died during the pendency of Letters Patent Appeal arising out of the orders passed in writ petition. The legal heirs of the deceased‑respondent were brought on record. However the legal heirs of the deceased‑respondent applied to have the order of substitution set aside and for declaration that the writ had abated. The Letters Patent Bench finding that the applica tion for substitution was not made within prescribed time set aside the order of substitution and declared that the L. P. A. had abated. The appellant In that case pleaded that in proceedings under Article 98 of the 1962 Constitution the only party was the Authority or the Tribunal whose order was challenged and not those who might be adversely affected by the order and therefore the L. P. A. could not be declared to have abated in toto. It was held that in the absence of the persons to be adversely affected by the quashing of an order in a proceeding under Article 98 o the Constitution of 1962, no effective order for quashment could be made, for, that would not bind the person: who had been benefited by the impugned order, and it was a well‑settled principle that in such circumstances a Court would not make an ineffective order or an order which could be flouted in a proceeding under Article 98 of the Constitution. It was held that, therefore, the persons to be adversely affected were necessary parties, and that even under the rules framed by the High Court itself for writ proceedings it was necessary to join all persons who were to be adversely affected in the event of the impugned order being set aside. In Mukha and others v. Rifat Pasha Sheikh, C. S. P., Member, Board of Revenue and others (1972 S C M R 514), it was held that since the legal representatives of deceased‑respondents had not been brought on record in time, the writ petition had rightly been hold by the High Court to have abated because it had been filed against dead persons. In Abdul Ghani v. Settlement Commissioner, Lahore Division. Lahore and 2 others (P L D 1971 Lah. 59), it was held that the word 'appeals' appearing in rule 2 of Order XXII of the C. P. C. intended to include within its scope appeals entertained under clause 10 of the High Court of east Pakistan Letters Patent. In that case the argument was advanced to the effect that the Letters Patent Appeals would at best be governed only by Chapter I‑C of Volume V of the Rules and Orders of the High Court of West Pakistan and that these Rules did not provide for abatement of appeals. The Court repelled this argument and observed:‑ "This argument, we must say, is fallacious to the extent of being absurd. Rules 1 to 4 o: Chapter I‑C, it seems to us, provide for the procedure to be followed in cases where a party has died after the passing of the decree or order of the lower Court and before the appeal is instituted a situation not specifically provided for in Order XXII of the Code. Rules 5 to 15 of the said Chapter of the Rules and Orders lay down the formal procedure to be followed in bringing the legal representatives on record and in applications for setting aside abatements. Rule 16 provides that the foregoing rules shall apply to all proceedings of a civil nature, other than suits or appeals, to which Order XXII of the Code is applicable. In other words, the application of the provisions of Order XXII of the Code to appeals is sought to be protected by rule 16 of Chapter I‑C of the Rules and Orders." In the light of the aforementioned authorities of the Supreme Court and this Court, we are of the considered opinion that the rules pertaining to the practice and procedure of this Court In writ proceedings and appeals are not to be made applicable to the exclusion of the Civil Procedure Code, but these are framed in addition to the rules laid down in the C. P. C. which is applicable to such proceedings and appeals before this Court. There is therefore, no substance in the argument that the writ rules of this Court are a Code within itself or that they supersede the provisions of C. P. C. The argument of learned counsel to the effect that under the Law Reforms Ordinance, 1972 (which is in force at present so far as the C. P. C. is concerned), the law of abatement had become obsolete and had ceased to be applicable, is also without force. In respect of the C. P. C., the aforementioned Ordinance came into force on the 13th of April 1972. It is not retrospective in effect and, therefore, its provisions cannot be applied to the Instant case. As for the practice and procedure of the Privy Council, there may be no abatement thereunder, but the Courts in this country are governed and bound by their own rules respecting abatement.

5. The next main argument of learned counsel for the appellant is that if the appeal had abated, then this Court may consider exercising its discretion for the condonation of delay under section 5 of the Limitation Act. It is submitted than respondent No. 2 died on the 23rd of duly 1969, after a prolonged Illness at the United Christian Hospital. Lahore, that the appellant was trying to find out the names and addresses of his heirs but he failed to get any information regarding their where abouts with the exception of one son owing to the extremely uncordial and strained relations with the deceased's family, that it was in the fourth week of March 1970, that he cane to know about the names of legal heirs and he accordingly submitted an application for bringing them on record, that since the date of death of respondent No. 2 was not available (which was subsequently furnished), the application was refiled on the 30th of May 1970, and that since the office raised an objection that the application was barred by 157 days, an application under section 5 of the Limitation Act was filed for the condonation of delay on the 20th of June 1970. Learned counsel placed reliance on Sh. Ghulam Muhammad and another v. The Bank of Bahawalpur Ltd. and 21 others (1971 S C M R 148), in which the delay was condoned and abatement set aside on the ground that the death of the respondent had been concealed. Learned counsel for the legal representatives, on the other hand, submits that the fact of death of respondent No. 2 was within the knowledge of the appellant since the 23rd of July 1969, because the funeral ceremonies of respondent No. 2 were held at the disputed premises where the appellant resides and respondent No. 2 had resided, that the appellant attended these ceremonies, that he was supplied the list of names and addresses of the legal heirs of respondent No. 2 within a week of his death at the request of the appellant and therefore, they all were known to him, that the relations between the appellant and the heirs of respondent No. 2 were not strained, that a son and grandson of respondent No. 2 participated In the marriage ceremony of the daughter of the appellant which was held in the end of 1969, that even it was admitted by the appellant that he knew one of the sons of respondent No. 2 and that had he wanted, this heir could have been got substituted and a direction of this Court obtained ordering him to provide the list of names and addresses of the other legal heirs of respondent No.

2. It is argued by learned counsel that the assertion of the appellant to the effect that it was in the fourth week of March 1970, that he came to know about the names of the heirs and he accordingly put in an application far bringing them on record was falsified by the fact that in his application dated the 14th of February 1970 (Civil Miscellaneous No. 3283 of 1970) to that effect the names of the legal heirs were enumerated and the same was supported by an affidavit. This application however was filed on the 27th of March 1970. for the first time. It was returned on the 28th of March 1970, because the date of death of respondent No. 2 was not supplied. It was refiled on the 29th of March, 1970. It was for the second time with the remarks that the said date was not available, again returned for non‑compliance of objection on the 29th of March 1970, and the appellant was asked to provide the requisite information within a month. The objection was complied with and application refiled for the third time on the 30th of May 1970, with a delay of one month. Again an objection was raised that it being barred by 157 days, an application for the condonation of delay should be filed within ten days. On the 20th of Jane 1970, an application for the condonation of delay (Civil Miscellaneous No. 3284 of 1970) was filed by the appellant which was returned on the same day being unstamped. The stamp was eventually supplied on the 4th of July 1970, and the application refiled. Learned counsel submits that all this would show that the appellant had not been pursuing his case diligently and that there was gross negligence on his part for bringing the legal representatives of respondent No. 2 on record within the specified time. It is argued that in order to the delay condoned the appellant must explain each day s delay. Reliance was placed on Haji Dad Shah and another v. Muhammad Fazal and 2 others (P L D 1971 Quetta 69), Moulvi Hamidullah and others v. Faiz Muhammad and others (1968 S C M R 385), Matlubur Rahman v. University of Karachi and others (1968 S C M R 537), Haji Rehmat Ullah v. Settlement and Rehabilitation Commissioner, Lahore and another (1970 S C M R 66), and Labhu v. Mst. Mumtazi Begum (1970 S C M R 131).

6. The appellant has not been able to controvert the above facts. We are, therefore, of the view that he has not prosecuted the appeal with duo diligence. In the light of the above discussion and in view of our finding that the provisions of Order XXII of the C. P. C. are applicable to appeals preferred under clause 10 of the Letters Patent, we find no justification to ignore the extraordinary delay of 157 days in filing the requisite application for bringing the legal representatives of respondent No. 2 on record, particularly so when the appellant could not explain the delay. The surviving respondents are the Chief Settlement Commissioner, West Pakistan, and Anwar Khan. As for Anwar Khan respondent his claim had been rejected by the D. S. C. and he did not pursue the matter further by way of an appeal or revision. However he applied for being impleaded as a party in the present proceedings on the 1st of December 1969. through Civil Miscellaneous No. 5319 of 1969 and he was so impleaded vide order of this Court dated the 18th of December 1970. Since he was not a party before the Settlement Authorities, we are of the view that he could have not been impleaded as a party in the present proceedings. The result is that since the appeal against the surviving respondent could not legally continue, it is hold to have abated on the death of respondent No. 2 and struck off as such. There shall be no order as to costs. K.B.A. Appeal held abated.