1990 PLP 2363 (MLD)

2. The relevant facts are that the titled R.S.A. was pending in this Court. The same was fixed for 24-10-1989. The learned counsel for the appellants appeared but nobody entered appearance on behalf of the respondents, therefore, they were proceeded ex parte. Thereafter, the learned counsel for the appellants argued the appeal. The same was allowed vide judgment and decree dated 24-10-1989 and case was remanded to the learned trial Court to decide it afresh in accordance with law.

3. These are applications on behalf of heirs of Maqbool Hussain for impleading them as respondents and decision of the appeal afresh after hearing them. It is submitted that Maqbool Hussain died on 18-10-1989 and there was hardly any time for the applicants in C.M. Nos. 1 and 7 to move this Court for impleading them respondents. instead of late Maqbool Hussain. The learned counsel for the petitioners has submitted that the petitioners have right to be impleaded and limitation is governed by Article 176 of the Limitation Act. The petition having been presented on 23-12-1989, therefore, is well within the limitation. The learned counsel in this behalf has referred to the judgment in the case of Mst. Sardar Begum and others v. Charagh Bibi and another 1989 CLC

825. It is added that with the death of Maqbool Hussain, power of attorney in favour of his learned counsel stood terminated, therefore, the learned counsel could not appear and plead on his behalf. In this context reference is made to the judgment of Mst. Iffat Masood and 2 others v. Rehmat Ali PLD 1990 Lah. 359,

4. The next argument is that the heirs could have made an application for re-hearing under Order 22, Rule 9(2), C.P.C. within 60 days as per Article 171 of the Limitation Act. It is submitted that the remedy of the heirs of the deceased respondent No.1 was to apply under this rule. The reference is made to the case of Mst. Iffat Masood and 2 others in this behalf also.

5. On the other hand learned counsel for the appellants submitted that the death of respondent No.1 does not affect the judgment of this Court dated 24-10-1989, delivered after his death and in the absence of the heirs as the respondents/plaintiffs were 5 in number. Therefore, death of one respondent will not make any difference. The learned counsel in this behalf has referred to Rules 3 and 4 of Order 22, C.P.C. and submitted that Rule 3 is applicable in this case. It is argued that section 5 of the Limitation Act is not applicable to the applications under Order 41, Rule 21, C.P.C.

6. I have given my anxious consideration to the arguments of the learned counsel for the parties and gone through the record and the precedent cases.

7. It is worthwhile, first of all, to refer to Rules 3 and 4 of Order XXII, C.P.C. which read as under:-- "Where one of two or more plaintiffs dies and the right to sue does not survive to the surviving plaintiff or plaintiffs alone, or on receipt of an intimation of the death of such plaintiff from the person nominated by him for that purpose under Rule 26, Order VII or a sole plaintiff or sole surviving plaintiff dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit."............ "Where one of two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants alone or on receipt of an intimation of death of such defendant from the person nominated by him for that purpose under Rule 13, Order VIII or a sole defendant or sole surviving defendant dies and the right to sue survives, the Court, on an application made in that behalf shall cause the legal representative of the deceased defendant to be made party and shall proceed with the suit. (2) Any person so made a party may make any defence appropriate to his character as legal representative of the deceased defendant. (3) When within the time limited by law no application is made or intimation is given under sub-rule (1), the Court may proceed with the suit and any order made or judgment pronounced in such suit shall, notwithstanding the death of such defendant, have the same force and effect as if it had been pronounced before the death took place." It is clear from sub-rule (3) that it is couched in the negative terms and according to this provision, if no application is made or intimation given as to the death of one of the defendants within specified time, then order made or judgment pronounced shall have the same force and effect as if the death of one of the respondents had not taken place. There cannot be two opinions that limitation is governed by Article 171 of Limitation Act. The result is that this provision will become operative after efflux of the limitation. This being a penal ,provision, therefore, has to be construed strictly. Conversly speaking, if order is made or judgment is pronounced before the expiry of 90 days then it will not be saved and protected by Rule 4(3), C.P.C.

8. The learned counsel for the appellants vehemently argued that the question of submission of application only arises when one or more defendants died and right to sue did not survive against the surviving defendant/defendants. The learned counsel while again and again referring to this provision of law ignored the word `alone' following immediately after `surviving defendant or defendants', therefore, I feel no difficulty to conclude that the impleading of the heirs of deceased respondent No.1 was essential.

9. We cannot conceive of the situation where party is left without a remedy specially in civil suits. Learned counsel for the applicants rightly referred to Order 22, Rule 9(2), C.P.C. The same reads as under:-- Rule 9(1) ............ (2)"Any person claiming to be the legal representative of a deceased plaintiff or defendant or the assignee or the receiver in the case of an insolvent plaintiff may apply to the Court for setting aside any order made or judgment pronounced by it in his absence; and if it is proved that he was prevented by any sufficient cause from continuing the suit or defending the suit, as the case may be, the Court shall set aside the order or the judgment, upon such terms as to costs or otherwise as it thinks fit." It is clear from the sub-rule (2) that legal representative of deceased plaintiff/defendant or assignee or receiver may apply to the Court for setting aside the order made or judgment pronounced in its absence. But of course it has to prove that he was prevented by sufficient cause from continuing or defending the suit. This being so, the Court is bound to set aside the order or judgment subject to conditions as it thinks fit. Now in the present case Maqbool Hussain respondent No.1 died on 18-10-1989 while the appeal was heard and decided on 24-10-1989. There was hardly sufficient time for the applicants to get themselves impleaded instead of their deceased predecessor. This is not all. The law permits them to, make application within 90 days. This application was in fact made quite in time while the other application for re-hearing could be made within 60 days. This application too is within time fixed for this purpose. The learned counsel for the applicants rightly referred the judgment of this Curt in the case of Iffat Masood in support of his arguments that remedy sought through this application is available to his clients. The learned counsel for the appellants argued that the case will be covered under Order 22, Rule 3, C.P.C. The argument clearly loses sight of Rule 11 of Order 22, C.P.C. The same reads as under:- In the application of this Order to appeals, so far as may be, the word `plaintiff' shall be held to include an appellant, the word `defendant' a respondent; and the word `suit' an appeal." It is clear that for the purposes of appeal, the appellants will be in position of plaintiff while respondent will be in the position of defendants. The result is that these applications are allowed. The applicants are impleaded as respondents A to K instead of their predecessor respondent No.1; judgment dated 24-10-1989 is set aside and rehearing of the appeal is directed. There is no order as to costs as far as these applications are concerned. A.A./U-54/L Applications allowed.