P L D 1957 Supreme Court (Pak (PLP)

SHAHABUDDIN, J.‑

This is an appeal by special leave from the order of the Revenue Commissioner, North‑West Frontier Province, dated 14th November 1953, declining to interfere in revision with the dismissal of a suit brought by the appellants in the Court of Extra Assistant Commissioner, Bannu, under section 77 of the Punjab Tenancy Act, 1887 against respondents 1 to 3 and one Muhammad Khan, who was impleaded as proforma defendant but died during the pendency of the suit. The suit was for the recovery of Rs. 1,35,000 as mesne profits for the years 1943 to 1945 in respect of the estate of late Hafiz Dost Muhammad Khan on the ground that res pondents 1 to 3 were in possession under an invalid lease, or, in the alternative, for Rs. 41,400 as rent for the said period if the lease was held to be valid. The first two appellants are the collaterals and the third is the widow of Hafiz Dost Muhammad Khan; and their case in the plaint was to the following effect. The estate was first leased to the first respondent in 1934 for four years and the lease was then renewed till 1942. Thereafter on account of non‑payment of rent. Hafiz Dost Muhammad Khan did not renew the lease in favour of the first respondent, but executed a general power of attorney in favour of the proforma defendant Muhammad Khan. The first respondent, however, contrived to have that power cancelled and to obtain in his favour a general power of attorney on the strength of which he leased the estate to his son the second respondent and a minor son of his wife's brother, the third respondent for 20 years for a nominal consideration of Rs. 13,800 per annum, while during the time he was a lessee he himself had paid as annual rent 4500 maunds of wheat the market price of which in 1943 amounted to Rs. 45,

000. Coming to know of this act of bad faith, Hafiz Dost Muhammad Khan cancelled the power‑of‑attorney he had executed in favour of the first respondent, appointed the pro forma defendant against his power‑of‑attorney agent and applied for action under section 145, Criminal P. C. to prevent respondents 2 and 3 from taking possession of the estate. Thereafter he died and the appellants as his heirs became the owners of his estate; but the pro forma defendant colluded with the 1st respondent, who along with respondents 2 and 3 took possession under the invalid lease. The appellants also brought two suits against res pondents 1 to 3 and the proforma defendant in the Court 9f the Subordinate Judge, Dera Ismail Khan, one for the cancellation of the lease‑deed referred to above and posses sion of the estate, and the other for a declaration that they were the heirs under Muslim Law of the said Hafiz Dost Muhammad Khan, as the proforma defendant had started claiming to be the heir. The revenue suit was filed during the pendency of these civil suits apparently to avoid the bar of limitation as regards the amounts claimed. The defendants to the revenue suit raised several objections, one of which was that as long as the two civil suits, referred to above, were pending the revenue suit could not lie. On this, the Revenue Extra Assistant Commissioner passed orders stating that the parties should first get the dispute regarding title settled `and then bring a suit for the recovery of produce' and that the file should be consigned to the record room. On appeal by the present appellants, the Collector amended the order of Extra Assistant Commis sioner into one of stay under section 151, Civil P. C. with the direction that the suit could be re‑opened after the decision of the above‑mentioned civil suits. These suits were decreed in favour of the appellants. The lease was cancelled on the ground that it was effected in bad faith and in utter disregard of the statutory liability of the first respondent a s agent and to the detriment of the principal. In the other suit a declaration was given that the appellants were the heirs of Hafiz Dost Muhammad Khan and that the proforma defendant Muhammad Khan was not his heirs. The appellants then put in a petition for the revival of the revenue suit, but as the respondents had preferred an appeal in the Court of Judicial Commissioner, the Revenue Extra Assistant Commissioner passed orders on 7th July 1948 to the effect that the revenue suit would be revived after the decision in the appeals. On 20th February 1949, Muhammad Khan, the pro forma defendant died and the appellants, as plaintiffs in the revenue suit, filed a petition on 30th June 1949 stating the history of the case up to date and adding that the name of that defendant might be struck off as he had no concern with the suit and was an unnecessary party, no relief having been asked for against him, and the decision of the civil Court being that he was not an heir of Hafiz Dost Muhammad Khan. It was further stated in the petition that if for some reason the proforma defendant was considered a necessary party and the suit was regarded as having abated, then that abatement might be set aside under Order XXII, rule 9 (2), Civil P. C. and the legal representatives mentioned in the petition might be brought on record as parties to the suit. It was ordered on this petition that it would be decided after revenue suit was revived and that till then the petition should remain on file pending disposal. After the appeals were disposed of, the appellants filed another applica tion asking for the revival of the revenue suits and in it they referred to their earlier petition of 30th June 1949. Nevertheless, on the objection raised by the defendant that the suit had abated as the legal representatives of the proforma defendant had not been brought on record within 90 days of his death, the suit was dismissed without fully considering the petition of 30th June 1949, which as stated already contained in the prayer for setting aside the abate ment. Strangely enough, the appellate Court dismissed the appeal on the basis that there was no application for setting aside the abatement though the petition of appeal had referred to it and there was a reference to it in the portion of the judgment in appeal where facts are stated. The appellants then went up in revision, but the petition was dismissed on the short ground that the suit abated on the 90th day from the death of the proforma defendant. The appellants were not heard and the fact that there was in effect a prayer made in time for setting aside the abatement was again over‑looked. When special leave was granted in this case, this Court was Federal Court of Pakistan empowered, not as under the present Constitution to grant special leave from the judg ment, order or sentence of any Court or tribunal other than a Court or tribunal constituted under any law relating to armed forces, but only to exercise the jurisdiction which the Privy Council had over Pakistan till Act I of 1950 and the Privy Council (Abolition of Jurisdiction) Act 1950, came into force. As it does not appear that the Privy Council ever heard appeals from the decisions of the Revenue Courts under the Punjab Tenancy Act, 1887 the appellants were granted leave subject to the condition that they should satisfy the Court at the time of the hearing of the appeal that the Federal Court had jurisdiction in respect of order: of Revenue Courts. That was the reason why the first question argued for the appellants before us was that of jurisdiction. The contentions of Mr. Bashir Ahmad for the appellants on this point may be summarised thus : The suit out of which this appeal has arisen was no doubt exclusively triable by a Revenue Court and the Punjab Tenancy Act does not provide for appeals from the order in revision, but the rights involved are the ordinary civil rights which are justiciable by Civil Courts and which prior to 1887 when the above Act was passed were adjudicated upon by the Civil Courts. The fact that Revenue Courts were specially created by the Tenancy Act did not stand in the way of their decision being appealable to Her Majesty as long as those decisions dealt with ordinary legal rights of a citizen, and anything contained in the special Act indicating that the decisions of Revenue Courts were not subject to appeal to Her Majesty did not affect the prerogative. For this position reliance was placed on the decision of the Privy Council in re The Will of Wi Matua (1908 A C 448) where leave was sought to appeal from a judgment of a native appellate Court set up in New Zealand which was given exclusive jurisdic tion over several rights of the natives in matters of succes sion, probate and administration in order to provide for the determination of the disputes among the natives according to their customs so far as they were not repugnant to the general principles of humanity. Act of 1894 (No. 43 of 58 Vict.) made the decisions of this Court `final and con clusive', but did not expressly exclude His Majesty's prero gative. The preliminary objection raised by the respondent to the petition was that "as the Native Appellate Court has a special jurisdiction, this sets its judgments apart and excludes review by His Majesty in Council". Their Lordships in dealing with this objection observed as follows :‑ "The whole virtue of this argument resides in the word `special', and in the supposed assimilation thereby effected to the two cases of Theberge v. Laudry (2 A C 102) and Cushing v. Dupuy (5 A C 409). The difference between those cases and the present is of the broadest and most essential kind. In them the subject matter of the protected jurisdiction connoted functions conferred on the Court by statute which would not otherwise have belonged to it as the general distributor of justice. In the one case‑‑Theberge v. Laudry‑the subject matter was actually a part of the privilege of Parliament, and therefore entirely alien to the region of prerogative. In the other case the duties imposed on the Court were truly not judicial, but administrative, in their nature and historically they had been originally vested in an administra tive commission. Turning to the present case, their Lordships have to deal with rights which are the ordinary legal rights of subjects of the King. The legal rights of this particular people in the matters of land, succession, and probate are subjected to the newly‑created tribunal. But for the creation of this Court the Law Courts would have had to determine those rights as best they could, and an appeal would clearly have lain to His Majesty. The exclusion of the right to appeal to His Majesty would therefore be a forfeiture of existing rights on the part of Sovereign and subject." Leave was, however, refused on the merits. It follows from this observation that decisions of Courts dealing with ordinary legal rights are subject to the exercise of prerogative even if the forum is a creature of a special enactment, and that therefore the criterion is not whether the Court was a special one, but whether the jurisdiction conferred on the Court concerned was a jurisdiction over special rights and liabilities, or over ordinary civil rights. As against this authority Mr. Mahmud Ali appearing for the respondents cited the decision of the Privy Council in Yakub Khan v. King Emperor (74 I A 8), where a commissioned officer in the Indian army applied for special leave to appeal from his conviction and sentence by Summary General Court Martial at Calcutta on charges of misappropriation of Government stores, embezzlement and insubordination. Their Lordships in declining to grant leave referred to section 3 of Judicial Committee Act, 1833 and then observed as follows:

"Where it is sought to bring an appeal from an order of a Court established under the provisions of an Act framed long after the Act of 1833, the competence of the appeal must be determined by the test laid down by Lord Cairns L. C. in Theberge v. Laudry where he said this: `In other words their Lordships have to consider, not whether there are express words here taking away prerogative, but whether there ever was the intention of creating this tribunal with the ordinary incident of appeal to the Crown'. Applying this test, their Lordships are clearly of opinion that the Indian Army Act intended the findings of a Court Martial, as and when confirmed by the proper confirming officer, to be final, subject only to the power of revision for which the Act provides. There is no room for an appeal to His Majesty in Council consistently with the subject‑matter and scheme of the Act." Relying on this observation, Mr. Mahmud Ali contended that as the Punjab Tenancy Act created in 1887 Revenue Courts with exclusive jurisdiction and there is nothing in that Act indicating that the decisions of those Courts are subject to the incident of appeal to his Majesty, no appeal lay to the Privy Council from the orders of those Courts and therefore no report of such an appeal could be cited. But as pointed out by the learned Attorney General who was asked to assist this Court on the question of jurisdiction their Lordships were not considering in Yakub Khan's case a decision of a Court dealing with the ordinary legal rights. Similarly Theberge's case where the test quoted in the above observation was prescribed did not relate to a decision of a Court dealing with the ordinary legal rights. The Indian Army Act, 1911, the enactment considered in Yakub Khan's case was concerned with special rights and liabilities and not ordinary civil rights and its scheme was reasonably swift justice in the interest of discipline under a special Code. The pronouncements of many Courts Martial cannot be said to be judgments as in most cases their findings and sentences are not valid until confirmed by another authority. The nature of rights and liabilities with which this Act is con cerned is as peculiar as those in the Theberge's case on which their Lordships mainly relied in making the above observation. The Tribunal from whose decision leave to appeal was sought in Theberge's case had a very special kind of jurisdiction concerning the rights and privileges of the electors and of the Legislative Assembly to which they elected members. After pointing out that these rights and privileges were looked upon as pertaining to the Legislative Assembly "in complete independence of the Crown, so far as they properly exist" their Lordships observed that it would be a surprising result not in consonance with the scheme of the legislation if it were to be found that the ultimate deter mination belongs to the Crown and not to the Legisla tive Assembly or the Court set up by it. Then occurs the following passage in which the test applied in Yakub Khan's case was stated:‑-- "These are considerations which lead their Lordships not in any way to infringe, which they would be far from doing, upon the general principle that the prerogative of the Crown, once established, cannot be taken away except by express words ; but to consider with anxiety whether in the scheme of this legislation it ever was intended to create a tribunal which should have, as one of its incidents, the liability to be reviewed by the Crown under its prerogative. In other words their Lordships have to consider, not whether there are express words here taking away prerogative but whether there ever was the intention of creating this tribunal with the ordinary incident of an appeal to the Crown." The observation relied on by Mr. Mahmud Ali has therefore to be taken as applicable only to cases of Courts created after 1833 with peculiar and special jurisdiction like those under the Army Act or under the Acts considered in Theberge's case and not to the Courts dealing with ordinary civil rights even though those Courts may have been created long after 1833. In my opinion the decision in Yakub Khan's case does not apply to the case under consideration, but on the other hand the observation in Wi Matua's case does apply, and therefore the Privy Council and conse quently the Federal Court of Pakistan had jurisdiction to hear appeals from orders passed by Revenue Courts under the Punjab Tenancy Act, 1887 or the North‑West Frontier Province Tenancy Act, 1950. The fact that there is no reported case of an appeal having been heard by the Privy Council in respect of such orders cannot by itself be a ground for holding that the Privy Council had no jurisdiction to hear such appeals. As regards the merits, the material facts are as follows The only question considered by the trial Court was that raised by the respondents that on account of the legal repre sentatives of the deceased defendant Muhammad Khan not having been brought on record within 90 days of his death the suit had abated. On that question that Court considered two points; (1) whether the deceased defendant was a necessary party and (2) whether in view of the fact that the suit had stood stayed the appellant‑plaintiffs had 90 days from its revival to file a petition for bringing the legal representatives on record. Both these points were found against the plaintiffs and in connection with the second question reliance was placed on the decision of the Judicial Commissioner, North‑West Frontier Province in Attaullah and others v. Abdul Gahfoor and others (P L D 1952 Pesh. 73), where the stay of the proceedings in which the legal representative were to be brought on record was not considered as `sufficient cause' for not making the application for that purpose within the time fixed by law. There is a material difference on at least two points between that case and the one under consideration, but the trial and the appellate Courts did not notice this fact. In that case the appeal in which the legal representatives of a deceased respondent had to be brought on record had stood adjourned because one of the respondents was on active service during the Second World War. But in the present case the stay was due to the fact that the Revenue Court itself considered that the question of title to the property which was a matter to be determined in the Revenue suit was more proper for decision by a Civil Court. Under section 98 of the Punjab Tenancy Act, 1887 and section 70 of the North‑West Frontier Province Tenancy Act which are to the same effect, if the Revenue Court is of opinion that a point in issue should be determined by the Civil Court it may, with the permission of the Court superior to it, require the party to the proceedings to institute a suit in the Civil Court for obtaining a decision on the question and if such a suit is instituted the revenue Court shall dispose of the pro ceedings before it in accordance with the decision of the Civil Court of first instance or appeal as the case may be. It may be mentioned here that at the time the suit was filed in 1946 the Punjab Act applied to this case, but by the time the trial of the suit was taken up in 1951 the North‑West Frontier Province Tenancy Act had come into force and as the property in question is within the limits of the former North‑West Frontier Province that Act became applicable. It is true that there was no direction to the appellants to go to the Civil Court, but that was so because they bad already filed the civil suits before coming to the revenue Court. Similarly there was no permission given by the Court that controls the revenue Court, but when the appellants appealed against the order of the trial Court that the suit should be kept pending, the appellate Court i.e., the Collector amended that order into one E of stay under section 151, Civil P. C. In the circumstances, the principle of section 70 of the North‑West Frontier Province Tenancy Act which is the same as section 98 of the Punjab Tenancy Act applied to this case and the Civil Court's decision that the deceased defendant was not the heir of deceased Hafiz Dost Muhammad Khan was binding on the Revenue Court. This important difference between the two cases was obviously overlooked. Another point of difference of equal importance between these cases, which the trial and appellate Courts failed to notice was that in the other case application for bringing the legal representatives on record as made two and a half years from the date of abatement of the appeal and there was no petition to set aside that abatement, while in the present case, 'as stated already there was in the petition of 30th June 1949 a prayer for setting aside the abatement and that prayer was in time, and the prayer for bringing legal repre sentatives on record was out of time only by a few weeks. It was explained in that application that the deceased defendant became an unnecessary party in view of the decision of the Civil Court, that the application was not made earlier as the legal advice given to the appellants was that the petition for excluding the deceased defendant's name or to bring the legal representatives on record, if such a course was held to be necessary, could be made after the decision of Civil Appeal, but that later on they were "thrown into doubt" and were advised to make the application to avoid complications and byway of precaution, so that if for some reason the deceased defendant was considered a necessary party and the suit was regarded as having abated the abatement might be cancelled. This explanation and the prayer for setting aside the abatement were not considered, and this petition which was kept on file with the observation that it would be decided after the suit was restored to file does not appear to have been disposed of at all, in spite of the fact that in the petition presented on 17th April 1951 for the revival of the suit a reference was made to the petition of 30th June 1949, and the order that the Court has passed on it. The trial Court apparently treated it as containing only the prayer for bringing the legal representatives on record. When the matter went up in appeal the appellate Court in the earlier part of its judgment noticed that the petition of 30th June 1949 contained a prayer for setting aside the abate ment, but while discussing the merits it proceeded on the basis that there was no application for setting aside the abatement. It observed "in the instant case, neither an application for bringing the legal representatives of Muhammad Khan deceased was made within 90 days of his death, nor was an application made for setting aside the abatement as required under Order XXII, rule 9, Civil P. C." As regards the fact that the suit stood stayed pending the decision of the Civil Court, the appellate Court followed the above mentioned ruling of the Judicial Commissioner without as stated above noticing the material difference between it and the present case, to which reference has already been made. The apparent error in the judgment of the appellate Court was pointed out in the revi sion petition filed before the Revenue Commissioner by the appellants under section 56 of the North‑West Frontier Province Tenancy Act, but that petition was dismissed summarily. The order was "Muhammad Khan was clearly a necessary party to the, suit which consequently abated on the expiry of 90 days after is death. I see no reason to interfere with the decision of the lower Courts. Petition rejected." On these facts Mr. Bashir Ahmad argued that there was no abatement of the suit, that even if it was considered that it had abated, there was a prayer for setting aside the abatement and sufficient cause for doing so, that the trial and the appellate Court in dismissing the suit without considering that prayer, acted with material irregularity in the exercise of their jurisdiction, as a result of which substantial and grave injustice was done to the appellants, and that therefore the Revenue, Commissioner should have interfered in revision under section 56 of the North‑West Frontier Province Tenancy Act., According to that provision the Revenue Commissioner could dismiss a revision petition if he considered it expedient to do so, and he could interfere only on the grounds on which a High Court can interfere under section 115, Civil P. C. Mr. Bashir Ahmad's argument was that this case came within that section and in this connection he relied on the decision of the Privy Council in Lala Atma Ram v. Lala Beni Prasad and others (62 I A 257). The position taken by Mr. Mahmud Ali, on the other hand, was that as a revision petition could be dismissed by the Revenue Commissioner on grounds of mere expediency, it may be that on considerations other than judicial the revision petition in this case was dismissed and that the utmost that could be said against the trial and appellate Courts was that they decided wrongly on an erroneous view of law and facts, but that was not sufficient for attracting any of the provisions of section 115, Civil P. C. He relied on the decisions of the Privy Council in Rajah Amir Hassan Khan v. Sheo Baksh Singh (11 I A 237) and N. S. Venkatagiri Ayyangar and another v. Hindu Religious Endowments Board Madras (76 I A 67 : P L D 1949 P C 26). In my opinion there is no force in the contentions of Mr. Mahmud Ali, and this appeal must succeed. On a reading of the entire section 56 of the above mentioned Tenancy Act it appears to me that the expediency referred to therein is expe diency in the interest of justice, because it is to the effect that there could be interference in revision only on judicial grounds. It could not have been the intention of the legislature that the Commissioner who can interfere only on judicial grounds should have powers to refuse to interfere on considerations other than judicial. Moreover, the order in question does not say that the Revenue Commissioner decided the case on ground of mere expediency. On the other hand it is to the effect that the Commissioner saw no reason to interfere as the suit had abated. Neither of the decisions relied on by Mr. Mahmud Ali seems to apply to the facts of the case. In the first case, Rajah Amir Hassan Khan v. Shea Baksh Singh, it was found that the learned Judges of the lower Courts had jurisdiction to decide the question but the Judicial Commis sioner took the view that their decision was illegal because they decided the question wrongly. Their Lordships in setting aside the order of the Judicial Commissioner observed :‑ "It appears that they had perfect jurisdiction to decide the question which was before them, and they dill decide it. Whether they decided it rightly or wrongly, they had juris diction to decide the case; and even if they decided wrongly, they did not exercise their jurisdiction illegally or with material irregularity." In the other case, N. S. Venkatagiri Ayyangar and another v. Hindu Religious Endowments Board, Madras, the High Court set aside the judgment of the District Judge because they considered that he had made a serious mistake in the construction which he had placed upon a will that was in question. Their Lordships held that the High Court had no justification to interfere as the lower Court did not commit any error of procedure in the course of the trial which was material in that, it might have affected the ultimate decision, but only put a wrong construction on the document it had to interpret. It does not appear that in either of those cases the lower Courts were under a misapprehension with regard to the case of the parties before them. What was found by the High Court in those cases was that the view they took on the merits was not correct. But in the present case the Courts appear to have acted under a total misapprehension of the nature of the application made by the appellants with regard to the deceased defendant, and in my opinion the decision of the Privy Council cited by Mr. Bashir Ahmad is applicable to this case. In that case the Collector of Saharan pur as a guardian of two widows brought a suit in the Court of the Subordinate Judge under the U. P. Court of Wards Act for the recovery of certain properties inherited by their deceased husband, but before the defendants filed a written statement he applied for leave to withdraw the suit, where. upon the widows applied to be allowed to continue the suit in their own names and the next reversioner applied for being added as plaintiff to continue the action. The Sub ordinate Judge held that the Collector was entitled to withdraw the suit, that the widows could not be substituted as plaintiffs, and he rejected the application of Beni Parsad, the next reversioner on the ground that he was not a party to the suit and it was not shown that there had been any arrange ment creating a devolution of interest in their favour during the pendency of the suit under Order XXII, rule 10, Civil P. C. Both the widows and the next reversioner took the matter to the High Court which dismissed the petition of the widows, but allowed that of the reversioner. Their finding was that the Subordinate Judge had dealt with the matter without giving it proper consideration and that he misapprehended the position of Beni Parsad. Their Lordships of the Privy Council held that the High Court had jurisdiction to interfere. They observed as follows:-- "As regards Beni Prasad's application, the High Court held that it had not received a proper hearing or considera tion in the Court below, and that the Subordinate Judge had totally misapprehended the nature of his application and dealt with it summarily. They accordingly held that they had jurisdiction to entertain his application. Their Lordships are of opinion that the High Court rightly so held, inasmuch as the Subordinate Judge in disposing as he did of Beni Prasad's application acted with material irregularity". This decision applies to the present case for, here, the trial and appellate Courts `totally misapprehended' the nature of the petition dated 30th June 1949. As pointed out already the appellate Court proceeded on the basis that there was no application for setting aside the abatement although the petition contained not only a prayer in that respect but also a satisfactory explanation for its not having been filed earlier. `Sufficient Cause' in Order XXII, rule 9, Civil P. C. need not be only of a physical nature. The impediment in the way of the party, on whom rests the duty of bringing the legal representatives on record, may be of a positive nature or even negative in character e. g. a substantial and bona fide doubt as to the necessity for acting under the above provision at all and consequentially as to the appropriate time for taking such action. That the appellants entertained such a doubt bona fide on the legal advice obtained by them is clear from the following paragraphs in their petition of 30th June 1949. "That as from the very beginning Muhammad Khan deceased defendant No. 4 had been impleaded as proforma defendant and had nothing to do with the real case nor did any liability regarding payment of the suit money lie on him nor was relief claimed against him. He himself also declared himself as unnecessary party to the suit and as now in the presence of the decision of a Civil Court, he has totally become an unnecessary party to the case having no concern with it hence his name (defendant No. 4 deceased) is automatically to be struck off from the list of defendants which the learned Court can do at all times. The legal advice given to plaintiffs was that after the decision of the civil appeals mentioned above an application may be submitted to your learned Court for the exclusion of the name of the deceased defendant when the present suit may be restored to file and proper application may be presented regarding it. The plaintiffs, furthermore, were given this legal advice also that if it was held necessary to bring the legal representatives of defendant No. 4 on record as a party to the suit an application will have to be presented regarding that too in your court after the decision of the civil appeals inasmuch as the entire proceedings in the present case have been stayed by order of your Court and the file has been consigned to record room, and is lying there till the decision of the appeals mentioned above. That for the foregoing reasons no application was presented up to this time for bringing on record the repre sentatives of the deceased defendant No. 4 as a party to the suit but now the plaintiffs have been thrown into doubt and directed that in order to save themselves from sub sequent complications and difficulties an application may be filed in your Court even now by way of precaution that if for some reason defendant No. 4 deceased may be con sidered a necessary party to the suit and the present suit be considered or held as abated against the deceased for reason of his legal representatives being not made party to the suit within the prescribed limitation then such abatement may be cancelled under Order XXII, rule 9 (2), Civil P. C. and the legal representatives mentioned above may be duly brought on record and made a party to the suit. 'the plaintiffs are not at all guilty of any deliberate fault in this matter nor have they committed any negligence or acted under carelessness or mala fides. Detailed circum stances and facts have been submitted above that in the opinion of plaintiffs so far as they can think and according to legal advice and to plaintiffs' belief also the name of defen dant No. 4 deceased is now liable to be deleted from the suit in respect of which the learned Court can pass proper order at each and every time, and that in this respect the plaintiffs are to move the learned Court after the decision of the civil appeals mentioned above. Hence any action and proceedings already taken and is being taken is based on good faith". Without expressing an opinion as to the correctness or otherwise of the legal advice referred to in the above extract, it is sufficiently clear that it was based, at any rate, on a fair appreciation of the law and facts relevant to the case. In the circumstances the fair view to take is that owing to the complicated nature of the litigation the appellants were placed in doubt regarding what action, if any, it was their duty to take in regard to the further progress of the revenue suit, following upon the death of Muhammad Khan, and such doubt was in the relevant sense a sufficient case for the purpose of making of an order setting aside the abatement. Reference may usefully be made on this point to the decision of the Privy Council in Rajendra Bahadur v. Rai Rajeshwar Bali (A I R 1937 P C 276). That decision turned upon the interpretation of the expression "sufficient cause" in section 5 of the Limitation Act, 1908 and a principle was drawn which was held applicable in relation to a case falling under section 14 of the same Act. The following short extract from the judgment will make it clear that the principle enunciated by the Judicial Committee is capable of application to rule 9 of Order XXII, Civil P. C. as well:‑-- "Mistaken advice given by a legal practitioner may in the circumstances of particular case give rise to sufficient cause within the section though there is certainly no general doctrine which saves parties from the results of wrong advice". As indicated already, the advice which guided the action of the present appellants cannot be characterised as "mis taken" or "wrong". The trial and appellate Courts would have realised this important aspect of the matter had they fully apprehended the nature of and fully considered the application in question. Their failure to do so brings the case under clause (c) of H section 115, Civil P. C. Clause (6) of that section also seems to apply, for, the trial and appellate Courts by ignoring the prayer regarding the abatement failed to exercise their; jurisdiction to set aside the abatement. In either view, the Revenue Commissioner should have interfered, and the action of the Courts below has undoubtedly resulted in substantial and gross injustice. I would, therefore, allow this appeal, set aside the order of the Revenue Commissioner and in its place substitute an order setting aside the abatement. I would add the direction that the Revenue Commissioner should remand the case to the trial Court for further proceedings according to law. The trial Court will consider whether, in the circumstances, it is now necessary to implead the legal representatives of Muhammad Khan or whether it will not be sufficient to make an order that the name of Muhammad Khan should be struck out of the list of defendants. I would allow the appellants their costs in this Court as well as before the Revenue Commissioner. Costs in Courts below the Revenue Commis sioner will be costs in the cause. MUHAMMAD MUNIR, C. J.‑I agree. CORNELIUS, J.‑I agree. MUHAMMAD SHARIF, J.‑I agree. AMIR‑UD‑DIN AHMAD, J.‑I agree. A.H. Appeal allowed.