P L D 1962 (W (PLP)

11. The Secretary of the plaintiffs has stated in his affidavit that the plaintiffs were "ever vigilant" and has set out the causes which prevented them from discovering the death of Khatija Bai and applying for setting aside the abatement within time as follows:‑ "(4) That the plaintiffs have been ever vigilant, and have diligently and vigorously prosecuted this suit throughout, to the best of their ability, sparing no efforts whatsoever at any time. (5) That the defendants have been living in clusters of huts in Sher Shah village without any sign or indication whatsoever as to the exact whereabouts of any of the residents of the huts aforesaid. (6) That the defendants abovenamed, and at their instigation, the residents of Shershah village, have all been in league against the plaintiffs throughout, and have always used their utmost endeavours to thwart and obstruct plaintiffs in every way. (7) That the defendants have always done everything in their power to mislead the plaintiffs, their agents, servants and representatives in every way possible. (8) That women living in Shershah village have always taken shelter behind the plea of Pardanashin, making it impossible for the plaintiffs to discover anything from or about them." The defendants have met the above statements in their counter -affidavit, as follows :‑ "

4. Paras. (4), (5), (6), (7) and (8) of the affidavit are denied." This is not even a denial of the allegations in terms of rules 3 to 5 of Order VIII, C. P. C., but their real reply is to be found in paragraph G of the counter‑affidavit as follows:‑ "It is contended that the present plaintiff and for that purpose his counsel was fully aware of the death as well as of the names of legal representatives of Mst. Khatija. The plaintiff has not made out any sufficient cause for the condona tion of the delay. The plaintiff has slept over the matter although the factum of the death of Mst. Khatija was definitely known to the plaintiff as early as 30th December 1957."

12. The facts stated in these paragraphs of the Secretary's affidavit clearly constitute a cause sufficient in view of the principle stated above, to have prevented the plaintiffs from continuing the suit against the heirs, and from applying within time to get the abatement set aside excepting for the information conveyed to Mr. Samad Khan by the service on him of a notice in the previous suit of the death of Khadja Bai. Mr. Lari for the defendants has, therefore, not questioned the facts stated in these paragraphs or their sufficiency, but has elaborately argued that counsel's knowledge should be taken to be the actual or constructive knowledge of his clients whose negligence is, therefore, proved by their omission itself to apply within time for impleading her legal representatives and for getting the abatement set aside.

13. The Secretary has stated in his affidavit as well as in his rejoinder to the counter‑affidavit that the information was not passed on by Mr. Samad Khan to the plaintiffs. Mr. Samad Khan has admitted at the bar that the notice was served on him, and that he did not pass on the information to the plaintiffs. Thus the only question that remains to be decided is the effect of counsel's knowledge.

14. Mr. Samad Khan has explained that the circumstances, in which he made the omission, were peculiar. Firstly, the information was received by him in the former suit and not in this suit. It was valuable in that suit to the plaintiff Muhammad Ibrahim, and the relations of Khatija Bai, but not to the Sind Industrial Estates Ltd., therefore, he did not convey it to the plaintiffs and latter it escaped his attention. Secondly, the notice was served on him on the 30th of December 1957, when that suit was pending in this Court and this suit in the District Court. This physical gulf obscured the connection between that notice and this suit, if his duty can at all be said to have been to use the know ledge gained from one proceeding in another proceeding. Strictly speaking, he would have done well in the circumstances of this case to use that knowledge for the benefit of the present plaintiffs, but his omission may be considered to be lack of extra‑vigilance but not lack of duty.

15. Thirdly, the presence of Mst. Khatija Bai, as an individ ual defendant in this suit was so insignificant that she had not even submitted her written statement. Additionally, the proceedings were ex parte against her from the 8th of February 1954, making the realization of her presence as a defendant still more feeble. Fourthly, counsel had been for a number of years a member of the Calcutta High Court, where the rule has been as follows :‑ "(4) The Court, whenever it sees fit, may exempt the plaintiff from the necessity of substituting the legal representa tives of any such defendant who has failed to file a written statement or has failed to appear and contest the suit at the hearing ; and judgment may in such case be pronounced against the said defendant notwithstanding the death of such defendant and shall have the same force and effect as if it has been pronounced before death took place." It is not a rule of this Court, but the equity on which it is' founded deserves the consideration of this Court for taking a liberal view of his omission as well as of the omission of the plaintiffs.

16. Fifthly, an equitable view can be said further to be possible for the benefit of the plaintiffs on the ground that there is no irrebutable presumption of law that the notice was in the knowledge of the plaintiffs. Order III, rule 5, C. P. C., provides that‑ "any process served on the pleader of any party . . . shall be presumed to be duly communicated and made known to the party whom the pleader represents", but the expression "shall presume" Is defined in section 3 of the Evidence Act, for the purposes of that Act, to mean that the Court shall regard a fact which it is directed to so presume, as proved "until it is disproved". The same meaning should be assigned to it for Order III, rule 5, C. P. C. In this case equity and justice are on the side of the plaintiffs because their fault is proved to be not their own but has been merely ascribed to them on a legal presumption which is erroneous on facts.

17. These five explanations have well impressed me on the whole. It is unnecessary to examine as to how far the omission of a lawyer can excuse the fault of his client, because firstly, the defendants are at least partly to be blamed for the fault of the plaintiffs. The facts set out in paragraphs 4 to 8 of the affidavit of the Secretary constituted a cause that was sufficient to prevent the plaintiffs from discovering the death independently. Moreover, the defendants had either themselves forgotten the death or con trived to keep it away from the mind of everybody from December 1957, upto April 1960, when Mr. Muhammad Halim for the first time raised the objection in this suit that it had abated wholly. During this time, his clients, i.e. defendants Nos. 3 and 4 submit ted their written statement (9‑11‑59), evidence of the parties was recorded and the hearing was adjourned for final arguments. Secondly, the omission which has been made by Mr. Samad Khan is not of such a nature as, in the circumstances of this case, can be said to be an error of law or default in duty ; because it was neither an erroneous advice, nor failure in the former case to communicate information of any value. He could be more far sighted, more interested in the welfare of his clients and extra -vigilant; but his omission in not displaying that virtue would have made no difference if the plaintiffs' own care and attention had not been rendered futile by the cause which prevented them from discovering the death. It would be laying the blame at the wrong door to overlook that cause and emphasise the need of extra vigilance of counsel.

18. I should not omit to mention that the written statements of the heirs of Mst. Khatija Bai are on record in pursuance of the order of Wahiduddin Ahmad, J., dated the 27th of May 1960, subject to the decision whether it is a fit case for setting aside abatement". The plaint has been amended and `issues' were framed on the written statements. No additional issue on the pleas of the legal representatives was claimed by their counsel, and therefore, only one issue was framed by counsel on the question of abatement, as follows :‑ "Whether the suit has abated against defendants. If so, what is the effect" ? This shows that there is no difference on the merits of the case between the interests of these legal representatives and those defendants who were already on record. These legal representa tives have not even pleaded abatement, nor has their counsel participated in the arguments on this issue.

19. In conclusion I decide the issue in favour of the plaintiffs. I hold that there was abatement consequent upon the death of Mst. Khatija Bai, and set it aside irrespective, as explained above, of the effect of that abatement on the maintainability of the suit as a whole.

20. Mr. Samad Khan requested me during his address to decide the suit on merits in view of the order of Wahiduddin Ahmed, J., dated the 27th of May 1960. At that time the question of abatement arising from the death of Saheb Shah was not before the learned Judge. I declined to hear the parties on merits, because I felt that the defendants should have the opportunity, before decision on merits, if they chose to do so, to get the views expressed above tested by going in appeal. If they succeed, deci sion on merits will be necessary. Moreover, Mr. Samad Khan also requested me to decide the plaintiffs' application dated the 26th of May 1952 under Order I, rule 8, C. P. C., which was never placed before the Registrar (Original Side) for disposal by an omission of the office. Mr. Lari rightly objected to the request on the ground that Saheb Shah and Mst. Khatija Bai being dead they could not be ordered now to defend the suit on behalf of others. It is fair that the plaintiffs should get an opportunity to consider the situation. K. M. A. Order accordingly.