P L D 2004 Supreme Court 185 (PLP)

SARDAR MUHAMMAD RAZA KHAN, J.--This is an appeal after leave of Court against the judgment dated 31-10-1994 of a learned Single Judge of Lahore High Court whereby the appellants' suit was held to have had abated due to the death of their co-plaintiff whose legal representatives were not brought on record within time and whose claim was held inseparable from that of his co-claimants.

2. Ali Muhammad son of Mirza and Jehana brought a suit against Mst. Sardaran etc. challenging the validity of an arbitration award dated 4-4-1960. After contest, the suit was decreed by Civil Court, Gujaranwala on 22-11-1965 but, on acceptance of appeal by the District Judge, the plaintiffs became non-suited. Regular Second Appeal No.533 of 1966 was filed before the High Court during pendency whereof, one of the appellants, namely Jehana, died on 20-12-1970. Application for substitution of his legal representatives was admittedly filed much beyond the period of limitation. On 3-3-1986 the High Court held that the appeal had abated qua Jehana lone but subsequently, through the impugned judgment dated 31-10-1994 it was held that the abatement applied in toto and hence the regular second appeal was dismissed accordingly, giving rise to the present appeal.

3. The leave has been granted to consider as to whether, in the circumstances of the present case, the abatement would operate partially, or in toto.

4. It may be remarked at the very outset that Jehana plaintiff/appellant having died on 20-12-1970 and his legal representatives having not been brought on record within the prescribed period of limitation, the benefit of Law Reforms Ordinance (No.XII) of 1972, cannot be derived by any of the parties to the suit. This point has already been examined and decided by this Court in Sardar Noor Hussain v. Chief Settlement Commissioner '(PLD 1983 SC 62), Khawaja Jilal Din v. Chief Settlement Commissioner (1985 SCMR 1359) and Ghulam Haider v. Mst. Raj Bharri (PLD 1986 SC 169), holding, that where abatement had taken effect before the enforcement of the Law Reforms Ordinance, 1972, it will not give continuity to the proceedings as it was not retrospective in operation. We would, therefore, advert to the only question as to whether, in the circumstances of the present case, the abatement, as such, has in fact taken effect or not and whether the principle of abatement is at all attracted to the facts of the present case. '

5. As the incident of death of appellant Jehana had occurred on 20-12-1970, the matter would be governed by the provisions of Order XXII of the C.P.C., as it existed prior to the Law Reforms Ordinance of 1972. Rule 1 of the aforesaid order lays down that with the death of plaintiff or a defendant a suit does not abate if the right to sue survives. What makes a right to sue survivable or not depends direly upon the nature of the suit. If the suit having regard to its frame and character could proceed in the absence of the deceased party, there is no logic why the cause should not ordinarily proceed in favour of the surviving plaintiff or against the surviving defendant, as the case may be.

6. There is a simple test to check as to when and how a right to sues survives despite the death of a party. There are cases where the plaintiffs mostly sue with regard to some claim which is associated with or vests in their individuality. A suit for damages falls under that category. If a plaintiff dies during the pendency of suit for damages, the right to sue, which can also be termed as a right to seek relief, would not survive but if he succeeds in getting, a decree for damages and dies during the pendency of his opponent's appeal, the right would of course survive to his legal representatives. In case of the survival of right to sue the suits do not abate on death of a party but the impleadment or substitution of his legal heirs becomes incumbent within the period of 90 days. This is so because the surviving right has now become vested in the legal heirs. So long as a right is referable to the individuality of a person, it does not survive at the death of that person. The general rule is that all causes of action and all demands whatsoever existing in favour of or against a person at the time of his death survive to or against his legal representatives. This principle is found enacted in the Succession Act as well, with the only exception that rights intimately connected with the individuality of the deceased will not survive based on the famous maxim actio personalis moritur cum personal--a personal right of action dies with the person. A right to sue, other than intimately connected with the individuality of the deceased, will always, survive to or against his legal representatives.

7. Keeping the above principle in view we would first advert to the frame and character of the present suit jointly brought by Ali Muhammad appellant and Jehana the deceased co-plaintiff. Before adverting thereto, we would like to clarify that Jehana's death during the pendency of appeal would not make it different from his death if it had taken place during the pendepcy of suit because the original suit stood dismissed and the right to sue continued to be the same even in appeal.

8. Now coming to the character of suit jointly filed by the co -plaintiffs, it essentially is a suit challenging the validity of Consolidation Award dated 4-4-1960. Whatever be the subservient, or ancillary details of fact, the main purpose is to challenge the award, as being void, unlawful and without jurisdiction. The award is challenged on the following grounds:-- . (a) That the appointment of Arbitrator is without jurisdiction. (b) That the award is a result of mala fides of the Arbitrator and Collusion between him and the defendants. (c) That the award is contrary to the very claim of defendants. (d) That the decision in award is not based on reason and 'logic. (e) That it is rendered without notice to the plaintiffs. (f) That the consolidation of village Thatta Kalian stood completed and acted upon six years prior thereto and could not have been re opened.

9. The grounds aforesaid are abundantly clear' in indicating that the assertions are objective and not subjective. Those are relatable to the surviving appellant as -much as they are to the deceased appellant. A verdict can be obtained by any one of the two provided the grounds above are proved. In our view the appeal could have been pursued by the surviving appellant Mirza as effectively as it would have been by both together. This is a substantial reason for concluding that the appeal, if at all, had abated partially and not in toto. Rather, the right to sue happens to be continuous in the circumstances, equally vesting in the surviving appellant/plaintiff who can get the award set aside as a whole after proving the grounds asserted in plaint. The learned Judge in the High Court was not right in holding that award would be partly set aside qua the surviving appellant and partly upheld qua the deceased appellant Jehana, thus resulting into contradictory judgment.

10. This does not fit in with the conditions prevailing in the suit in hand. The reasons advanced by the High Court might, to some extent, have been relevant if future judgment could be checked in the wake of claim specifically made with reference to the specific piece of land, by each appellant. In that scenario one can visualize that there was every likelihood of award being set aside qua the surviving appellant's piece of land and upheld qua the piece of land belonging to the deceased appellant. Such type of relief is not possible in matters of consolidation because the Civil Court cannot, and should not determine the specific adjustment etc. of parties suggesting the mode of consolidation concerning different properties vis-a vis different proprietors.

11. The job of consolidation is a specialized job done by specially trained people with strict reference to and consideration of the kind, classifications and locations of all the properties and proprietors in village. If the consolidation award is found to be wrong and violative of the basic principles of consolidation, it can be set aside but remanded to the same expert authority for rectification, modification or alteration, as the case may be. So it is not at all to be feared about that qua some of lands of surviving appellant the award could be set aside and the same would be deemed to be upheld qua the lands of deceased appellant, thereby resulting into contradictory judgments.

12. The test to determine whether on the death of a. defendant the abatement is partial or complete is to see whether the suit can proceed in the absence of deceased defendant. In the instant case the appeal and even the suit could proceed in the absence of Jehana, the appellant. Where two persons, who have independent causes of action and who could have brought separate suits, join together as plaintiffs in one suit by reason of the fact that their right to relief arose out of the same fact or series of facts, the death of one of them will not cause an abatement, so far as the other plaintiff or plaintiffs are concerned, (AIR 1963, SC 1901). These provisions apply also to appeals. Where one of the two appellants dies during the pendency of the appeal and his right of appeal does not survive to the surviving appellant alone, his legal representatives can and should be brought on record; and if no application therefore is made within the prescribed time, the appeal will abate so far as the deceased appellant is concerned. The test whether a right to sue survives in-the surviving plaintiffs or against the surviving defendants is whether the surviving plaintiffs can alone sue or the surviving defendants could alone be sued in the absence of the deceased plaintiff or defendant respectively.

13. It was in this legal background that this Court in Wali v. Manak Ali (PLD 1965 SC 651) laid down three criteria to determine as .to when the abatement would occur in totality and when in partiality:-- (i) that the suit or appeal would be imperfectly constituted in the absence of the deceased party; (ii) that a decision on the merit may result in inconsistent decrees; and (iii) that an effective decree cannot be passed against the living party.

14. Comparing the conditions of the present case with the above criteria; first, the appeal in hand would not have been imperfectly: constituted even if Jehana appellant had not been there. Second, we have already held that a decision on merits would not result into inconsistent decrees, for, the impugned award whether set aside or maintained, would neither he inconsistent qua the appellants nor against the dependants. Third, any decree passed against the defendants i.e. the living party, would be effective by all means.

15. Learned counsel for respondents drew our attention to our decision in Mst. Murad Begum v. Muhammad Rafiq (PLD 1974 SC 322) but the facts are quite, distinguishable. There the decree was decidedly joint and indivisible against the defendants, who, while filing the appeal omitted to join some of the defendants/judgment-debtors. In that case the non joinder was to result into inconsistent decrees but in the instant case, as discussed earlier, it does not.

16. The upshot of the whole discussion is that the abatement in hand shall not be effective in toto and the surviving plaintiff/appellant can pursue the matter in his own capacity as effectively as it would have been by both. The appeal is accepted, the impugned judgment dated 30-10-1994 of the learned High Court is set aside, and the case is remanded to the High Court for re-deciding Regular Second Appeal No.533 of 1996 on merits considering it not to have abated against Ali son of Mirza appellant. Parties be summoned by the High Court itself. M.H./A-457/S Case remanded.