1990 PLP 1256 (SCMR)

MUHAMMAD AFZAL ZULLAH, J.‑‑‑This appeal through leave of the Court is directed against the judgment dated 10‑3‑1975; of the Lahore High Court, Lahore; whereby Regular Second Appeal against an order of remand was dismissed. Brief facts and the point noted for examination at the stage of granting leave to appeal on 28th October, 1980 are as follows:‑

"The facts giving rise to this petition are that the petitioners‑plaintiffs filed a suit for declaration that they were the owners of the land in dispute by virtue of a gift made in their favour by the donor, their father and subsequent sale executed by him in favour of respondents‑defendants Fateh Muhammad and Noor Muhammad was illegal and void and in the alternative the same was void as against custom and want of legal necessity. The suit was decreed on 10‑3‑1961. In appeal the learned appellate Court reversed the decree on the ground of lack of pecuniary jurisdiction in the trial Court and remanded the case to the trial Court for framing comprehensive issues including an issue on suit evaluation. No fording was given by the appellate Court on merits. The petitioner then moved the High Court in second appeal during the pendency of which both the respondents Fateh Muhammad and Noor Muhammad died and while the legal heirs of Noor Muhammad were brought on record within time, an application for bringing the legal heirs of deceased Fateh Muhammad was not moved until after three years of his demise which was ultimately dismissed as barred by time. After rejecting this application, the learned Judge went on to dismiss the appeal as having abated for the reason: `that the order of the learned Additional District Judge cannot be split up in accordance with the identifiable shares of the two respondents. It is a case in which contradictory orders are likely to be passed by this Court. The abatement of the appeal is, therefore, total and not partial'." Khawaja Mushtaq Ahmad, the learned counsel for the petitioner contended that the appeal had not abated in so far as respondent Noor Muhammad was concerned inasmuch as the sale‑deed executed by the deceased, father of the petitioners was in favour of both Fateh Muhammad and Noor Muhammad, the vendees, who had purchased the property in dispute in equal shares and since the legal heirs of Noor Muhammad had been brought on record within time, appeal would only partially abate in so far as the co‑vendee Fateh Muhammad was concerned. The learned counsel relied on PLD 1965 SC

651. Leave is granted to consider the question whether in the circumstances of the case, the learned single Judge in the High Court was right in coming to the conclusion that the abatement of the appeal was total and not' partial". During the pendency of the appeal Shariat Appellate Bench of this Court by judgment, dated 10th April, 1983 in the Federation of Pakistan v. Muhammad Ishaq and another P L D 1983 S C 273 finally declared the remnants of customary law of inheritance as being against Quran and Sunnah. Amongst others . consequential changes were made in the relevant law in Punjab by the promulgation of West Pakistan Muslim Personal Law (Shariat) Act (Amendment) Ordinance XIII of 1983. According to said law the suits for the annulment of alienations based on customary law at whatever stage would abate if certain conditions were fulfilled. The effect of these changes in the law was noted and applied by this Court in Abdul Ghafoor and others v. Muhammad Shafi and others P L D 1985 S C

407. During the hearing of this appeal when the aforestated position emerged during the arguments and discussion, both the learned counsel agreed that the effect of the said change of law will have to be examined in the present case also and its result might be affected thereby. If the case had not been remanded to the learned trial Court, as noted in the facts part above, we might have examined the said effect for its application to the present case as was done in the aforenoticed case of Abdul Ghafoor. As the suit in the present case stands remanded to the trial Court and the remand order, as a result of the dismissal of the appellants' second appeal by the High Court, holds field, therefore, in the circumstances of this case this appeal is dismissed with the foregoing observation regarding the change of law and its effect. There shall be no order as to costs. AA./M‑1214/S. ????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.