P L D 1962 Azad J & K 23 (PLP)

MUHAMMAD SHARIF, J.--‑This is an appeal against the judgment and decree of the District Judge dated 13‑1‑61 by which the appeal of the defendants‑appellants against the judgment and decree of the Sub‑Judge, Muzaffarabad dated 3‑6‑55 was dismissed as time barred. The circumstances giving rise to this second appeal are that Qalandar Shah and others plaintiff respondents had brought a suit for possession of land in the Court of the Sub‑Judge, Muzaffarabad, against the defendant‑appellants which was partially decreed and partially dismissed by the Sub‑Judge by his judgment dated 3‑6‑

55. Both the plaintiffs and the respondents went up in appeals before the District Judge, Muzaffarabad against the judgment and decree of the Sub‑Judge. The appeals remained pending in the Court of the District Judge for a pretty long time when the learned District Judge by his judgment dated 13‑1‑61 dismissed both the appeals as time barred. Both the plaintiffs as well as the defendants have come up in second appeals before this Court against the judgment and decree of the learned District Judge. We are disposing of these two appeals by separate judgments since in the present appeal some points other than limitation have arisen. The defendants' appeal which was also against the judgment of the Sub‑Judge Muzaffarabad dated 3‑6‑55 was filed before the District Judge on 26th July 1955. The plaintiffs had objected to the correctness of the copy of the judgment when it was delivered to them, therefore, the copying department and also taken back the copy furnished to the defendants, The defendants applied for a copy of the judgment of the trial Court on 3‑6‑

55. The copying fee was deposited on 8‑6‑55 and the copy was distributed on 9‑6‑55 but then recalled and re‑distributed to them again on 20‑7‑

55. The defendants had also applied for the copy of the decree on 3‑6‑55 for which they had deposited the copying fee on 8‑6‑

55. This copy was prepared on 12‑7‑55 and distributed to the defendants on 15‑7‑

55. Sh. Abdul Hamid Advocate on behalf of the respondents has argued that the defendants appeal before the District Judge was rightly held to be time barred but we are unable to agree with him. Under section 12 of the Limitation Act, the appellants are entitled to exclude not only the time requisite for obtaining a copy of the judgment but also the time requisite for obtaining a copy of the decree. The defendants had applied for a copy of the judgment and also for a copy of the decree on 3‑6‑

55. The copy of they judgment though originally distributed on 9‑6‑55 was taken back from them as the endorsement of the copying officer made on the back of the copy shows and re‑distributed to them on 20‑7‑

55. The defendants‑appellants were entitled to exclude the time from 3‑6‑55 to 20‑7‑55 as time requisite for obtaining a copy of the judgment. In addition to this they are entitled to exclude the time spent on obtaining a copy of the decree i.e., from 3‑6‑55 to 15‑7‑

55. They had applied for obtaining a copy of the decree before the expiry of the period of limitation prescribed for appeal before the District Judge. So time requisite for obtaining a copy of the decree shall be added to the ordinary period of limitation prescribed for an appeal before the District Judge. We accordingly hold that the appeal filed before the District Judge on 26‑7‑55 was well within time and not time barred as held by the learned District Judge. In this appeal the learned counsel for the plaintiffs‑respon dents has raised another point. He pointed out that one of the respondents Mst. Chand Bibi had died during the pendency of the appeal before the District Judge and that she had been impleaded as a respondent before this Court also without bringing her legal representatives on the record, therefore, the appeal should abate. He also pointed out that another respondent Mst. Karim Fatima had died during the pendency of the proceedings before the District Judge and that her legal representatives too had not been brought on the record, therefore, on this score also the appeal should abate. He has also pointed out that Mst. Tayyab Fatima who was a plaintiff‑respondent before the District Judge had not been made a party to the present appeal. A decree had been passed in her favour and she was a necessary party, therefore, her non‑inclusion would mean that there is no properly constituted appeal before this Court and, therefore, it should be dismissed. Similarly, he has pointed out that another plaintiff‑respondent before the District Judge, Ghulam Sarwar Shah had not been made a party to this appeal. He was also a decree‑holder and a necessary party, therefore, in case of his non‑inclusion also the appeal should be held to be not properly constituted and, therefore, should be dismissed. The contention of the learned counsel for the respondents is that the decree in favour of the plaintiffs‑respondents is joint and, therefore, the failure of the appellants to bring the legal representatives of any one of the respondents on the record would result in the abatement of the appeal in toto. The learned counsel for the appellants has replied that the name of Ghulam Sarwar Shah was not included as a respondent in the copy of the decree of the District Judge furnished to the appellants for filing this second appeal. With regard to Mst. Tayyab Fatima his reply is that in the copy furnished to the appellants the name of Mst. Tayyab Fatima is not very legible and can be read as Janat Fatima. Therefore, he has impleaded Mst. Janat Fatima, who is respondent No. 5, in the present appeal. There is another respondent by the name of Mst. Janat Fatima in this appeal. As regards the objections that the legal representatives of Mst. Chand Bibi have not been brought on the record his reply is that they have, no doubt, mistakenly entered Mst. Chand Bibi as a respondent yet her legal representative Inayat Shah has also been impleaded in the appeal as a respondent, therefore, the inclusion of the name of Mst, Chand Bibi deceased respondent would not result in the abatement of the appeal. The learned counsel for the appellants has frankly conceded that he has no reply with regard to the non‑inclusion of the name of Mst. Karim Fatima amongst the respondents. His contention is that the appeal would not abate in toto for the non‑inclusion of the name of Mst. Karim Fatima, plaintiff as respondent but would abate if it abates at all so far it affects the interest of Mst. Karim Fatima. After we had adjourned the case on 7‑5‑62 for judgment but before judgment had been declared Ghulam Sarwar Shah the Mukhtar of the appellants put in an application on 8‑5‑62 praying that the name of Ghulam Sarwar Shah be added as a respondent since they had been misled, by the non‑inclusion of his name in the copy of the decree furnished to them, into believing that he was no party to the proceedings and therefore, he was not cited as a respondent. In the application dated 8‑5‑62 it was also prayed that the legal representatives Mst. Karim Fatima about whore they had now learnt that she was dead, be brought on the record as respondents. Notice of this application was issued to the learned counsel for the respondents and arguments heard. Inayat Shah is the only legal representative of Mst. Chand Bibi, decree‑holder respondent. In the plaintiffs' appeal Inayat Shah alone has been cited as the legal representative of the deceased Mst. Chand Bibi. Since the legal representative of Mst. Chand Bibi is also on the record the objection with regard to the inclusion of the name of Mst. Chand Bibi and the noninclusion of the name of her legal representative falls to the ground. We have looked up the copy of the decree of the Court the District Judge which has been filed along with the appeal and we find that the name entered at No. 5 is not very legible and can be read as Jannat Fatima. Unless one knows that there exists one Mst. Tayyab Fatima, he is not sure to read the name entered at No. 5 as Tayyab Fatima. So we hold that the appellants were genuinely misled into reading, Mst. Taiyba Fatima as Mst. Jannat Fatima and the name entered at No. 5 shall be read as Tayyab Fatima though it is written as Jannat Fatima. Now we take up the case of Ghulam Sarwar Shah and Mst. Karim Fatima. We have gone through the copy of the decree of the District Judge. The name of Ghulam Sarwar Shah is not given in the list of respondents. We also looked up the original decree‑sheet of the Court of the District Judge. There also the name of Ghulam Sarwar Shah does not figure The respondents are as many as 32 in this case and in such a case of numerous respondents one is likely to miss a name which is not entered in the copy. Lengthy arguments have been addressed to us on Order XLI, rule 20, C. P. C. but we think that it is unnecessary to enter into the controversy whether Ghulam Sarwar Shah was a party interested in the result of the appeal or not. His name was not entered in the list of the respondents in the decree‑sheet, prepared by the Court of the District Judge, therefore, it shall be said that the appeal against Ghulam Sarwar Shah had not been dismissed by the District Judge and by fiction of law shall be deemed to be still pending. On 6th June 1961, Sh. Abdul Hamid, the learned counsel for the respondents made an application that Mst. Chand Bibi respondent No. 10 and Karim Fatima respondent No. 18 were dead when the appeal was filed, consequently the appeal should abate. It was, further, shown in this application that Mst. Tayyab Fatima and Ghulam Sarwar Shah plaintiffs, who were respondents before the District Judge had not been impleaded in the present appeal. Notice of this application was given to the appellants as is evident from the interim order dated 6‑6‑

61. It was brought to the notice of the appellants as ar back as the 6th of June 1961 that Mst. Karim Fatima respondent had died and they failed to bring her legal representatives on the record within the prescribed time of 90 days. If they did not know of her death earlier, at least they had learnt of her death on 6th June 1961. It does not lie in their mouth now to say that they had learnt of her death now. Eleven months have passed and they have not taken any steps to bring her legal representatives on the record, therefore, we are not prepared to accede to the request of the appellants that the legal representatives of Mst. Karim Fatima should be brought on the record. Now we have to see what would be the result of the failure of the appellants to bring the legal representatives of Mst. Karim Fatima on the record. The learned counsel for the plaintiff‑respondents has cited A I R 1927 Lah. 860 (2) and A I R 1930 Lah. 651 to support his con tention that the appeal should abate in toto. The learned counsel for the defendants‑appellants has cited 110 I C 281 and 85 1 C 197 which correspond respectively to A I R 1928 Lah. 359 and 1925 Bom. 122, to support his contention that the appeal would abate not in toto but proportionately to the share of the deceased respondents. It was laid down in A I R 1927 Lah. 860 (No. 2) by Agha Haidar, (J.) that: "Where the decree of the first appellate Court was one in favour of all the plaintiffs for possession of the land in suit and no shares were specified; and during pendency of the appeal some of the plaintiff‑respondents died, the whole appeal must be dismissed as abated in the absence of application for substituting their legal representatives within time." The facts in A I R 1930 Lah. 651 were that a suit for declaration that defendant was not entitled to draw water from a certain place was decreed in favour of the plaintiffs. On appeal which was allowed it was found that one of the plaintiffs had subsequently died and his legal representative was not brought on record as respon dent. It was held that the whole appeal had abated in toto. The order in appeal being legally ineffectual, the appeal could not be continued against the remaining respondents. The principle of abatement is that where the decree is joint and indivisible the failure to bring the legal representative of any one of the deceased respondents on record in time would result in the abatement of the appeal as a whole but where the decree is not joint but divisible and the shares of the various plaintiffs have been D specified the appeal would abate not in toto but so far as it affects the right of the deceased plaintiff respondent whose legal representative have not been brought on the record within the prescribed time. The contention of the learned counsel for the appellants (sic) is that the decree for possession passed in favour of the plaintiff‑respondents is joint, since their shares have not been specified. The learned counsel concedes that where the shares of the plaintiffs are specified the appeal does not abate in toto for the failure to bring the legal representative of one of the deceased respondents on record. The facts in 1925 Born. 122 were that during the pendency of a suit for the recovery of possession for certain land by an uncle and nephew as tenants in common, the nephew died. Thereupon his widow was substituted as his legal representative. The plaintiffs won the suit. During the pendency of the appeal by the defendant the widow died in November 1919. Till March 1921 no steps were taken and in that month the defendants applied to bring on record the‑ nephew's sister as his legal representative. It was held that as the appellants had not applied under Order XXII, rule 9, : sub‑rule (2) to set aside the abatement, the appeal had abated as regards the nephew and could not be revived, but it did not necessarily follow from this that the appeal abated as against the uncle also. In both the cases cited by the learned counsel for the plaintiffs‑respondents the crux of the judgment is that the share had not been specified, therefore, it had been held that the appeal had abated in toto. The judgment and the decree of the Sub‑Judge, M'abad show that a decree for possession of certain survey Nos. except survey Nos. 68 & 70 had been passed in favour of the plaintiff in proportion to their shares under the Muhammadan Law. The shares of the plaintiffs‑decree‑holders had been specified though not actually worked out. It cannot be said in the present case that the decree passed in favour of the plaintiffs was not joint and indivisible. Under Muhammadan Law the heirs of a deceased person inherit (as) tenants in common and each one of them has a specified share in the property left by the deceased. The plaintiff‑respondents had obtained decree proportionate to their shares according to the Muhammadan Law, therefore, it shall be said that their shares were specified. Failure of the appellants to bring the legal representative of the deceased respondent Mst. Karim Fatima on the record would not result in then abatement of their appeal in toto but the appeal would abate so far as it affects the share of the deceased respondent Mst. Karim Fatima. In the light of the above discussion we accept the appeal and remand the case back to the District Judge with the direction to restore the defendants' appeal No. 25 of 1955 of his Court to its original No. and pass a fresh judgment after hearing the parties but it should be noted that the defendants' appeal shall not be revived as against the deceased Mst. Karim Fatima. The decree passed in her favour by the Court of the Sub‑Judge, Muzaffarabad shall enure to the benefit of her legal representa tive so far as it affects her share. The costs of this appeal shall follow the event. The District Judge should work out the shares of the plaintiffs decree‑holders. Parties have been directed to attend the Court of the District Judge, Muzaffarabad on 12‑5‑1962. K. B. A. Appeal accepted.