2000 PLP 702 (MLD)

Saifuddin v. Zainuddin and another 1995 CLC 1348 ref. (d) Civil Procedure Code (V of 1908)‑‑‑ ‑‑‑‑O.XXXII, Rr. 1 & 3‑‑‑Guardian ad litem, appointment of‑‑‑Failure to file such application‑‑‑Effect‑‑‑Where no separate application had been filed for appointment of such guardian for two minors, mother of the minors was appointed guardian ad litem on the oral motion of the counsel for the applicants. K.M. Nadeem for Plaintiffs. S. Jamil Ahmed for Defendant No.

1. S. Muzzaffer Imam for the KDA. This application is preferred under Section 5 of Limitation Act by the applicants seeking condonation of delay in filing application under Order XXII, Rule 3, C.P.C. which is placed at serial No.l for hearing today. The provisions of section 5 of the Limitation Act apply to specified matters, alone, and are not applicable to application under Order XXII, Rule 3, C.P.C. For such reason, this application is dismissed.

1. As already noted, under No.3, this application is preferred under Order XXII, Rule 3, C.P.C. to implead the legal heirs of deceased applicant, Manzoor Ahmed Khan. The said applicant, Manzoor Ahmed Khan, is stated to have expired on 23‑6‑1997 leaving behind him three legal representatives named in the application. Two of the legal representatives are minors and this application contains a statement to the effect that the widow of the deceased‑applicant, Manzoor Ahmed Khan, is willing to act as guardian ad litem of the minors. There does not appear to be any conflict in the interest of the three legal representatives of the deceased‑applicant, Manzoor Ahmed Khan. Mr. S. Jamil Ahmed has opposed the application on the ground that it is barred by limitation. According to the learned counsel, an application to bring legal representatives of a deceased plaintiff or appellant is required to be made within 90 days from the demise of the party under Article 176 of the Limitation Act and although by virtue of the amendment introduced through Ordinance XII of 1972, the proceedings do not abate upon failure to file application within the time prescribed by law, no application can be made by the legal representatives of the deceased party beyond the time prescribed under Article 176 of Limitation Act. The learned counsel has relied upon Bibi Khudeja v. Pir Sarwaruddin Shah (1992 MLD 490), Saifuddin v. Zainuddin and another (1995 CLC 1348) and Khawaja Auto Cars Limited v. Haji Sharif Khan (1996 CLC 1337). All the three judgments were delivered by Division Benches of this Court. The cases, cited at Nos. 1 and 3 above, however, do not deal with the situation as has arisen in the present case. The dictum, contained in the two judgments is to the effect that upon non?impleadment of legal representatives within the prescribed time, the Court can proceed with the matter as if the death had not occurred. The order in the case of Saifuddin (supra), cited by the learned counsel, however, lays down as a principle that an application, filed beyond the prescribed period of limitation for impleadment of legal representatives, ought to be dismissed notwithstanding the right of legal representatives to participate in the proceedings. Mr. K.M. Nadeem points out that besides applicant, Manzoor Ahmed Khan, the present proceedings under section 12(2), C.P.C. were initiated by three other applicants and the recognition of the right of the legal representatives to participate in the proceedings renders the matter of academic value. It is further contended by the learned counsel that Article 176 of Limitation Act applies to a plaintiff or an appellant who dies during the proceedings. The applicants, in the present case, are neither plaintiffs nor appellants. Dealing with the second submission of Mr. K.M. Nadeem, it is sufficient to observe that the terms 'Plaintiff' or 'Appellant' used in Article 176 of Limitation Act are wide enough to include an applicant under section 12(2), C.P.C., The intention of Legislature in using the term 'Plaintiff or Appellant evidently is to include a party at whose instance the proceedings have commenced. The contention of Mr. K.M. Nadeem with regard to non‑applicability of Article 176 of Limitation Act is, therefore, repelled. Reverting to the first contention of Mr. K.M. Nadeem, the position is substantially conceded by Mr. S. Jamil Ahmed who, however, insists that the application, filed by the legal representatives, is barred by limitation. The learned counsel for the defendants is right in pointing out that the ratio of order in the case of Saifuddin v. Zainuddin (supra) is binding on this Bench. There is yet another factor which needs to be considered. The prohibition of Article 176 of Limitation Act applies to an application, filed by the legal representatives. There is no embargo on the power of Court to implead the legal representatives suo motu to the proceedings. The present case involves interest of two minors and a Court is obliged to take care of the minors' interest and those who are placed in a position of disadvantage. For such reason, while dismissing this application, the three legal representatives of deceased‑applicant, Manzoor Ahmad Khan, are directed to be impleaded as applicants Nos.4(a), 4 (b) and 4(c), respectively. Let an amended title be filed by the learned counsel for the applicants within one week from today. Although a separate application has not been filed for appointment of I guardian ad litem for the two minors, at the oral motion of the learned counsel for the applicants, the applicant NoA(e) namely Mst. Noor Jehan, mother of the two minors, is appointed their guardian ad litem.

2. It is pointed out that the file pertaining to Suit No.53 of 1965 out of which the present application arises, has not been put up by the office. Let the file pertaining to suit No.53 of 1965 be put up alongwith this file in future for reference purpose. Q.M.H./S‑256/K???????? Order accordingly.