P L D 1966 (W (PLP)

Dates of hearing: 10th and 11th of February 1966. This second appeal has arisen from the judgment of the District Judge, Gujranwala in Civil Appeal 8/32 of 1955 decided on 6th June 1956. By this judgment the learned Court dismissed the appeal of the appellants and confirmed the decree passed by the trial Court.

2. Respondents Nur Hussain and Muhammad Hussain filed a declaratory suit under Order XXI, rule 103, C. P. C. against the appellants and against Respondents Allah Ditta and Hayat and Mst. Razia Begum, wife of Hayat, Respondent No. 4, in respect of 3 quarters and the site of two other adjoining quarters situated at Gujranwala Chhauni in Khasra 322/263 to 267, 45 in 1933. They purchased this property from one Mirza Muhammad Afzal, a brother of Mirza Zafarali in the year 1932. After the purchase the Respondents Nos. 1 and 2 leased out the quarters to various persons. On 1st July 1937 the quarters in dispute were leased out to Allah Ditta who was then a tonga driver but at the time of the filing of the suit was an orderly in the Court of the Additional District Magistrate, Gujranwala. Respondents Nos. 1 and 2 filed a suit on 1st July 1949 in the Court of the Senior Civil Judge, Gujranwala for his ejectment which was decreed. on 23rd December 1950. In the execution the appellants and Respondent Hayat and his wife Mst. Razia Begum resisted the execution of the decree and thereupon Respondents Nos. 1 to 2 filed Suit No. 196 of 1953 in the Court of the Senior Civil Judge, First Class, Gujranwala which was decreed on 18th December 1954.

3. It appears that during the pendency of the suit Mst. Razia Beg um, defendant No. 6 died at village Dewna in District Gujrat. Her legal representatives were not brought on the record apparently because Respondents 1 and 2 were ignorant about her death and the counsel appearing for her continued to put appearance on her behalf in the trial Court. On 3rd February 1955, the appellants filed an appeal against the decree of the trial Court and alleged in it that the suit had abated as the heirs and legal representatives of Mst. Razia Begum were not brought on the record. After the service of appeal was affected on Respondents 1 and 2 on 8th August 1955, they applied to the Appellate Court for setting aside of the abatement. On 25th February 1956 the learned District Judge remanded the case to the trial Court under Order XLI, rule 25 for finding out the legal representatives of deceased Mst. Razia Begum and to report whether the suit had abated and whether it was a fit case in which the abatement, if any, should be set aside.

4. The learned trial Judge by report dated 15th May 1956, held that as the legal representatives of the deceased Mst. Razia Begum were not brought on the record within the statutory period the suit had abated and further held that it was not a fit case for setting aside of the abatement. The matter then came up before Sheikh Muhammad Akbar, District Judge, Gujranwala who on consideration of the report of the trial Judge, came to the conclusion that the suit had not abated. He further held that even if the suit had abated, it was a fit case for setting aside the abatement. After considering the claim of the appellants on merits he held that the suit was properly decreed by the learned trial Court and confirmed the appeal by judgment dated the 6th June 1956. The appellants have challenged this judgment in this second appeal.

5. Sh. Muhammad Shafi, the learned counsel appearing for the appellants, has urged that Mst. Razia Begum being a joint trespasser of the property is dispute was a necessary party and as her heirs were not brought on the record within the statutory period the suit had abated and the learned District Judge was not justified in holding that it had not abated. The learned counsel further contended that it was not a fit case in which the learned District Judge should have set aside the abatement. In the alternative the learned counsel contended that the learned District Judge had no jurisdiction to set aside the abatement as the question whether the abatement should have been set-aside was entirely within the discretion of the trial Court and not in that of the appellate Court.

6. Oil the other hand, Mr. Muhammad Ghias, the learned counsel for Respondents 1 and 2 has contended that the question of abatement does not arise in the present case because Mst. Razia Begum died on 16th November 1954 and the suit was disposed of by the trial Court on 18th December 1954, much before the expiry of the statutory period provided for bringing the legal representatives of the deceased defendant on the record. The learned counsel contended that at best the appellants or for that matter the heirs of deceased Mst. Razia Begum were entitled to get the judgment of the trial Court set aside in order to defend the suit. The learned counsel further contended that since the appellants have themselves in the appeal filed by them on 3rd February 1955, imp leaded the legal representatives of the deceased Mst. Razia Begum as parties, her legal representatives had already been brought on the record within the statutory period and under no circumstances the suit can be considered to have abated. He further urged that in any case Muhammad Hayat, Respondent No. 4 was the husband of Mst. Razia Begum and he being one of the legal representatives of the deceased, being already on the record, it was not incumbent on the contesting representatives to implead the legal representatives of Mst. Razia Begum. The contention of the learned counsel is that Mst. Razia Begum's estate was sufficiently represented. The other heirs of the deceased are her minor children who are under the guardianship of Muhammad Hayat and Muhammad Hayat, being a party himself to the suit had sufficiently defended the suit and no prejudice has been caused to the other legal representatives of the deceased. It was also contended that the suit being for possession against trespassers, it could only abate, if at all, against Mst. Razia Begum and not the other trespassers. According to the learned counsel adequate relief could be given against the remaining trespassers and for that reason also the appeal should be dismissed.

7. After hearing the learned counsel for the parties I am of the view that the contention of Sh. Muhammad Shafi, Advocate that the suit had abated cannot prevail. It is not disputed that Mst. Razia Begum is survived by her husband Hayat and three minor children, namely Zakaullah, Mst. Khalida and Mst. Sughra. Respondent No. 4 Hayat was defendant No. 7 in the trial Court and, therefore, one of the legal representatives of the deceased Mst. Razia Begum was already on the record. I was inclined to hold that when one of the legal representatives is already on the record in another capacity it is not necessary for the plaintiffs or the defendants to make a formal application for bringing the legal representatives of a deceased person on the record. But Sh. Muhammad Shafi, learned counsel for the appellant, has drawn my attention to certain decisions in which it has been held that where however some of the legal representatives are on the record but not all an application is necessary under Order XXII, rule 4 of the C. P. C. and in its absence the suit will abate. In this connection reference was made to a decision of the Lahore High Court in Chunilal v. Aminchand (A I R 1933 Lah. 356). In that case a division Bench of the Lahore High Court repelled the contention that in the presence of one of the legal representatives it is not necessary to make a formal application for bringing the legal representatives of the deceased person on the record. I was inclined to follow the view in Dawloo Ma and others v. Karnam Ghowdappa and others (A I R 1930 Mad. 579) that where the legal representatives are already on the record and sufficiently represent the estate, the suit will not abate by reason of absence of an application under Order XXII, rule 4, C. P. C. and the decree passed in the suit will bind the estate. This view is also in accordance with the decision in Hakim Ali and others v. Shia Narain and others (A I R 1933 Lah. 765) in which Dalip Singh, J. expressed the same view. But Mr. Muhammad Ghias, the learned counsel for the respondent, has drawn my attention to two decisions of this Court (i) Muhammad Jabar Khan Chandio v. Muhammad Murad and others (P L D 1958 Kar. 229) and (ii) Mirza Khan v. Ganesh Dass and others (P L D 1960 Lah. 577). It was held in these two cases that where there were more that, one heirs of the deceased defendant and only one of them was already on the record as defendant the rule 2 is inapplicable and in the presence of rule 3 of Order XXII, it was necessary to bring the other heirs on the record to save the suit from abatement. Being bound by these decisions I must hold that the presence of one of the legal representatives on the record in another capacity could not absolve the contesting respondents from making a formal application for bringing the legal representatives on the record within the statutory period.

8. It however appears to me that the question of abatement is not so much involved on the facts of the present case. . It is a well-settled rule of law that a decree passed after the death of a party to a suit or appeal is not an absolute nullity. It is not void nor is it open to collateral attack but it is erroneous and liable to be set aside. The mistake can be rectified if the Court sets aside the proceedings taken after the death of the deceased and direct that the case be retried in the presence of the legal representatives from the stage, which it had reached immediately before the date. This principle is followed on the ground that all the parties to the litigation should be placed in the same position in which the would have been if the legal representatives had been imp leaded at the proper time. In Tatoram v. Kundan and others (A I R 1928Lah. 784) the point involved was almost similar to the one under consideration. In that case one of the vendees Chdni Lal by name died on 8th July 1921 during the pendency of the suit in the trial Court; and his legal representatives were not brought on the record. The decree granting pre‑emption was passed by the trial Judge on the 4th January 1922, before the expiry of the six months, which was the period applicable at that time to an application to implead the legal representatives of the deceased person. It was held by a Division Bench of the Lahore High Court in that case that it cannot be said that the suit has abated as against the deceased. Their Lordships observed "that no doubt the decree was passed against the defendants one of whom had died before the date of the decree, but the question still remains for consideration whether it should be treated as a nullity." In that connection Shadi Lal C. J. observed as under :‑ "I do not think that the decree can be treated as a nullity in the sense that it can be ignored altogether. As pointed out in Goda Coopooramier v. Soondarammall, a decree passed after the death of a party to the suit or appeal is not an absolute nullity. Such a decree is not void nor is it open to collateral attack, but it is erroneous and liable to be set aside. The mistake can be rectified if the Court sets aside the proceedings taken after the death of the deceased party and directs that the case be retried in the presence of his legal representative from the stage which it had reached immediately before the date of the death. This procedure places all the parties to the litigation in the same position in which they would have been if the legal representative had been imp leaded at the proper time." This decision was followed in the Indian jurisdiction by a Division Bench of the Punjab High Court in Birbal and others v. Harlal Sodasukh and others (A I R 1953 Punj. 252). At the same time the duty of the appellate Court in such cases is to find out whether the case merits remand and for that purpose it should consider whether the failure of the plaintiffs to implead the legal representatives of the deceased in the trial Court has caused any prejudice to him. This procedure was followed in Tatoram v. Kundan and others and their Lordships, after considering the facts of the case, came to the conclusion that it was not necessary to remand the case to the trial Court for imp leading the legal representatives of Chuni Lal, who was already on the record, and further observed that it would be a useless formality to record in his presence the evidence of the plaintiffs witnesses which evidence does not in any way affect the decision of the Court on the issue of waiver and has not been relied upon by the plaintiffs themselves. In this connection Shadi Lal, C. J. further observed:‑ "The object of setting aside a judgment pronounced against the party who died before the verdict is to give his representative an opportunity to resist the claim of the opposite‑party. In this case, the deceased along with the other defendants had already produced his evidence, and it would be an act of supererogation to remit the case to the trial Court which would only prolong litigation, but could not affect the decision of the case in the slightest degree." It is in this light that I have also considered the case of the legal representatives of deceased Mst. Razia Begum. I have gone through the record of the case. It appears from it that the evidence in the case was recorded on 15th December 1954. Four witnesses were examined on behalf of defendants Nos. 1, 2, 4 to 6 that is so say including on behalf of deceased Mst. Razia Begum. Her husband Hayat, defendant No. 7 did not lead any evidence and relied on the evidence led by the other defendants. It will be further noticed that Hayat is the only person who is expected to represent the interest of the minor children. His claim is not adverse to them and, therefore, whatever possible evidence was available in defence of the case of Mst. Razia Begum had been produced. I, therefore, consider that it would not at ail prejudice the right of the other heirs of deceased Mst. Razia Begum if the case is not remanded to the trial Court for the production of further evidence. No such necessity was expressed during the hearing of the appeal on their behalf. In these circumstances it seems to me that the fact that the suit was disposed of much before the expiry of the period of limitation provided under the law for bringing his legal representatives of the deceased on the record, the suit had not abated. At best the minor children of deceased Mst. Razia Begum could ask for the setting aside of the judgment in order to afford them an opportunity to defend the suit, but since they. are not likely to be prejudiced by not remanding the suit, I would hold that the suit had not abated.

9. Moreover, there is another impediment in the way of the appellant on the question under consideration. It will be noticed that the appeal was filed in the Court of the District Judge on 3rd February 1955. In that appeal all the legal representatives of deceased Mst. Razia Begum were imp leaded as respondents; that is , to say, all the legal representatives of deceased Mst. Razia Begum had been brought on the record within the statutory period provided in law, namely, within 90 days. It is quite correct that this was done in the appeal but it being a continua tion of the suit any action taken in it can be considered to have been taken in the suit itself. In Brijindas Singh v. Lala Kanshiram and others (A I R 1917 P C 156) the representative of a deceased party was imp leaded in the appellate Court, but the judicial committee held that "the introduction of a plaintiff or a defendant for one stage of the suit is an introduction for all stages." In my opinion for this reason also the suit cannot be considered to have abated.

10. It further appears to me that in any case the suit, if at all, could abate only against the interest of Mst. Razia Begum. F It seems to me that a suit for ejectment of trespassers should also abate only so far as the deceased defendant is concerned because that interest can be separated from each other. In Shiblam and others v. Allah Mehr and others (A I R 1934 All. 716). Suleiman, C. J. took the view that in a suit for possession or ejectment against trespassers, the mere fact that one of them had died and his heirs have not been brought on the record does not make it impossible to pass a decree in favour of the plaintiffs against the trespassers who are before the Court. Such a decree would of course be against the defendants in their, personal capacity. Reliance in this connection was placed on another Allahabad decision in Ram Dei Misrain v. Jurawan Miser and others (A I R 1930 All. 762). To a similar effect observation was made in Roda Mal v. Nighalia (A I R 1934 Lah. 941). This view was also followed in Indian jurisdiction in Ulfat Ali Bhurgam v. Jagat Chandra Manak and others (A I R 1961 Trip. 13) and Swami Prasas v. Baba Rai Singhai Charaman and others (1960 M P 14). In the present case the dispute between the parties is in respect of three quarters which were alleged to be in occupation of the appellants, Respondent No. 4 and his minor children. Three families were alleged to be in their possession and Respondent No. 4 must be residing in a separate portion of the property in dispute along with his wife and children. In cases where total abatement is alleged what is to be seen is whether the decree could be passed against the other trespassers effectively or not. In my opinion in the present case the decree can be effectively enforced against the other trespassers and simply because some of the heirs of Mst. Razia Begum would not be bound by it, the suit cannot be considered to have totally abated. In the view however that I have taken of the matter this question does not require any further consideration. No other point in support of the appeal was urged.

11. In the result, I would hold that the learned District Judge was perfectly justified in holding that the suit had not abated and confirming the decree of the trial Court. I, therefore, find no force in the appeal which is dismissed with no order as to costs. S. Q. Appeal dismissed.