P L D 1952 Peshawar 73 (PLP)

MUHAMMAD SHAFI, J.‑Abdul Ghafoor and eight others on the 25th of July, 1921, brought a suit for possession by partition of 4 kanals 19 marlas out of 5 kanals 10 marlas of‑land, in plots Nos. 19 and 22, situated in Pir Abad village, .of Mardan District, against Pir Hassan, Pir Wali and six others. Dewan Shiv Saran Lal, who was Sub‑Judge, 1st Class in those days granted an ex‑carte decree in favour of the plaintiffs on 23rd December, 1921. Subsequently the plaintiff -decree‑holders put in an execution petition, on which the learned Sub‑Judge, 1st Class ordered that the possession of the property decreed be handed over at the spot to the plaintiffs. the perusal of the record shows that no partition took place at the spot, but in spite of that possession of some property was handed over to the plaintiffs by the bailiff on 21st August, 1922. In April, 1937, Abdul Ghafoor etc., put in a complaint against Pir Wali and others under section 145, Criminal P. C. with regard to the property, for which the decree had been granted in their favour in 1921. This complaint was dismissed by Arbab Ahmad Ali Jan, a Magistrate of the 1st Class, exer cising enhanced powers under section 30 Criminal P. C. on 16th April, 1937. On 3rd October, 1940, Abdul Ghafoor and others institu ted the present suit, out of which this revision petition has arisen, against Pir Wali and others for a declaration that they were the owners and in possession of 4 kanals 19 marlas of land, as described in the plaint, situated in Pir Abad, 'Tahsil and District Mardan. It was alleged in the plaint that this was the same property, for which a decree was' granted in their favour in 1921, and possession whereof was delivered to them at the spot in 1922. It was contended that the defendants were interfering with their possession and hence this suit. Amongst others Pir Wali and Mohibullah were defendants Nos. l and 14 respectively in the case. This suit was dismissed by Sub‑Judge, 4th Class, Mardan on 28th April, 1942, (31st March, 1942). The learned trial judge found that the land now in suit did no; tally with the land which was the subject‑matter of dispute in 1921, and the plaintiffs, therefore, had failed to establish their title to the property. The plaintiffs filed an appeal against the above decree in the Court of Senior Sub‑Judge Mardan, on 2nd June, 1942. Pir Wali and Mohibullah were respondents Nos. 1 and 14 respec tively in the appeal. On 13th July, 1943. Officiating Comman der of 7/14th Punjab Regiment certified that Mohibullah, sepoy No. 22561 was serving under special conditions and that the postponement of the appeal was necessary in the interests of justice. Thereupon the learned Senior Sub‑Judge postponed the appeal until the termination of the War, or till such time that respondent No. 14, namely, Mohibullah returned to his house, or ceased to serve in the Army. It was specifically stated in the order that on the happening of the above two contingencies the plaintiff‑appellants could put in an applica tion for the revival of the appeal. It is in evidence that the War officially ended on 1st April 1946 vide. His Majesty's Order in Council, dated 20th March, 1946. Again it is in evidence that Mohibullah was discharged from the Army on the 4th of May, 1946. On the 10th day of May, 1949, the plaintiff‑appellants made an application that as Mohibullah had ceased to be a soldier in the Army, the appeal might be revived, and heard and decided on merits. Necessary processes were issued for the respondents. On 14th June, 1949, the process‑server reported that Pir Wali was stated to have died. On 22nd June, 1949, Abdul Ghafoor one of the appellants applied that Pir Wali and two others having died, their legal representatives be brought on the record. On 5th July, 1949, Niamat, another appellant in the case made an application :that in the previous application some of the legal representatives of Pir Wali res pondent had by mistake been omitted, and that they should also be impleaded as respondents in the case. An objection was taken that Pir Wali had as a matter of fact died on 12th February 1947, and the application for bringing his legal representatives on the record made on 22nd June, 1949, was statute‑barred, and that the appeal stood abated and hence was liable to dismissal on that account. The learned lower appellate Court overruled this objec tion, and finding on merits that the plaintiffs had established their claim to the property, granted them the decree prayed for. The defendants have come up on revision to this Court against the above decree. The date of the death of Pir Wali given above is not in dispute at all. As a matter of fact it is proved by the pro duction of a death certificate on the record, which gives the above date as the date of his death. According to the procedure laid down in Order XXII Civil P. C. no sooner a respondent or one of the respondents died and the right to sue does not survive against the surviving respondent, an application for bringing his legal representatives on the record should be brought within ninety days of his death. If no such application is. made, then the appeal automatically abates. It is not necessary that the Court should pass a specific order of abatement, as a consequence of the failure of the party to make the above application. Under Order XXII rule 9 Civil P. C. however, a plaintiff can put in a second application for setting aside the abatement within sixty days of the abatement, on the ground that he was prevented by any sufficient cause from continuing the suit. If the Court is satisfied that the plaintiff was prevented by such cause, it can set aside abatement upon such terms as to costs or otherwise as it thinks fit. In the case before me neither an application for bringing the legal representatives of Pir Wali deceased on the record was made within ninety days of his death, nor was an application made for setting aside the abatement within sixty days of the abatement of the appeal. The learned counsel for the respondents, however, submits that the application made by his clients on 10th May, 1949, may be considered as an application for setting aside the abate ment, and it may be admitted after time, because the plain tiffs had sufficient cause for not preferring this application with in the prescribed period on account of the fact that the appeal had been postponed under the provisions of the Indian Soldier's Litigation Act. It is true, as has been observed above, that the appeal had been postponed till the termination of the war or till such time that Mohibullah's services in the Army were determined, but then I fail to see how were the plaintiffs prevented from putting in the application either for bringing the legal representatives of 'Pir Wali deceased on the record, or for getting the abate ment set aside. The postponement sof the proceedings meant that the Court could not take any action, but it certainly did not mean that a party to the appeal was absolved from taking a certain step, which in law it ought to take within a certain period. Pir Wali deceased belonged to Pir Abad, and so did the plaintiff appellants. They cannot allege nor indeed have they alleged that they were not aware of Pir Wali's death. If they knew that Pir Wali had died on a certain date, it was their bounden duty to make an application for bringing his legal representatives on the record, and if they failed to do that, they could have put in an application within sixty days for getting the abatement set aside. They certainly cannot have any excuse for waiting for full two and a half years, in order to make an application for bringing his legal representa tives on the record. I do not think the mere fact that the proceedings had been stayed, is a sufficient cause for not preferring such an application within the prescribed period. I am consequently of the view that the appeal pending in the Court of the Senior Sub‑Judge on account of the failure of the plaintiffs to make the above application within the time prescribed by law abated, which abatement still subsists. There was consequently no legal appeal before, the learned lower appellate Court which could accepted by him. It is contended by the learned counsel for the respondents that the appeal only abated as against Pir Wali and that it could not abate as against the rest of the respondents. The plaintiffs had instituted a suit claiming a declaration against all the defendants, that they were the owners of the property in suit, and the defendants had no right thereto. Their relief after their suit was dismissed and in the grounds of appeal was the same. It would thus be clean that the interests of the respondents in the appeal were joint and indivisible, so that the interests of the deceased respondent could not be separated from those of the rest. Under the circumstances I am of the view that the appeal abated as a whole and not only as against Pir Wali respondent. In the above view of the matter I do not think it is neces sary to go into the merits of the case. The revision petition is accepted, the judgment of the learned lower appellate Court is set aside, and that of the trial Court is restored with costs throughout. Pleader's fee ...Rs.

15. Orders announced. A. H. Petition accepted.