P L D 1973 Lahore 325 (PLP)

SARDAR MUHAMMAD IQBAL, J.‑

By the order of the Settlement Authority the premises in dispute were transferred to Khuda Bakhsh. Haji Abdul Karim appellant challenged the order through W. P. No. 1956/R of 1962. The writ petition was dismissed on 13‑10‑1965. He preferred the Letters Patent Appeal against that order which was admitted to regular hearing on 25‑2‑1966. Khuda Bakhsh respondent died on 7‑2‑1967. The appellant submitted C. M. No. 4122 of 1967 under Order XXII, rule 4 read with section 151, C. P. C. on 10‑11‑1967, stating that Khuda Bakhsh died on 7‑2‑1967, and, therefore, Rehmat Ullah etc., his legal representatives should be impleaded as parties. On the 7th of October 1968, following order was passed: "Let the legal representatives of Khuda Bakhsh as stated in paragraph 2 of the petition, be impleaded as respondents subject. to all just exceptions." When the appeal came up for hearing the learned counsel appearing on behalf of the legal representatives railed a preliminary objection that the appeal had by operation of law abated after the expiry of 90 days from 7‑2‑1967 when Khuda Bakhsh died and that, therefore, unless the abatement had been set aside the legal representatives could not be impleaded and the order dated 7‑10‑1968 was thus nullity in the eye of law.

2. It was contended on behalf of the appellant by his learned counsel Sh. Abdul Mannan, Advocate that the provisions of Order XXII, C. P. C., do not apply to writ petitions and the Letters Patent Appeals arising in such proceedings. He relied on Chand v. Abdul Ghaffar (P L D 1965 Lah. 596), where it was held that "the provisions of Order XXII, rule 4, C. P. C., do not apply to writ petitions and the omission on the part of the appellants to implead the legal representatives of Abdul Aziz within the time specified in Article 177 of the Limitation Act did not result in the abatement of the appeal." In that case Mst. Kaniz Fatima one of the respondents had died during the pendency of the writ petition and the application made to implead her legal representatives was dismissed on the ground that the period prescribed for impleading them Gad expired and the writ petition stood abated under Order XXII, rule 4, C. P. C. It was against this order that the Letters Patent Appeal was filed in which their Lordships of the Division Bench held that Order XXII, did not apply to the writ petitions. The precise question whether or not the provisions of Order XXII, were applicable to Letters Patent Appeals arising from the writ petitions came up for consideration in Abdul Ghani v. Settlement Commissioner (P L D 1971 Lah. 59), where this judgment was also cited and it was held that "the word `appeals' appearing in rule 11 of Order XXII of the Code is intended to include within its scope appeals entertained under Clause 10 of the High Court of West Pakistan Letters Patent" and in that view of the matter it was held that the appeal had abated.

3. The learned counsel, however, contended that the view taken in Abdul Ghana v. Settlement Commissioner, is different from the one which had earlier been taken in Chant! v. Abdul Ghafar, and we should accept the view taken in Chand v. Abdul Ghafar, for the reason that Order XXII of the C. P. C. provided for penal provisions and they cannot be applicable to a proceeding unless there is an express provision to that effect. We are unable to accept this contention for the reason that the view taken in Chand v. Abdul Ghafar, was in particular about the abatement of writ petitions and they had not referred to Order XXII, rule 11, which is applicable to appeals. If there is any observation in the judgment about the application of Order XXH, C. P. C. to a Letters Patent Appeal it is only an obiter dictum for the reason that the decision of this question was not necessary for the disposal of the matter before their Lordships. The decision in Abdul Ghani v. Settlement Commis sioner being directly on the point arising in this case, holds the field and we are bound by the same.

4. The matter also came up before their Lordships of the Supreme Court for consideration in Abdul Ghani v. Settlement Commissioner (1971 SCMR 98), in which it was held that the provisions of the Code of Civil Procedure were applicable to proceedings under Article 98 and to Letters Patent Appeals and that the application for substitution of the deceased had to be made within the time prescribed for making of such application under the Code of Civil Procedure. This being the law declared, a writ petition or a Letters Patent Appeal arising from a writ petition will abate under Order XXII, C. P. C. if an application for the substitution of the legal representatives is not made within 90 days under Article 177 of the Limitation Act.

5. An application for impleading the legal representatives can be made only before the appeal abates. The application of the appellant (C. M. 4122 of 1967) was moved when the appeal had already abated and consequently the order of the Court in this application permitting to implead the legal representatives was a nullity and did not exist in the eye of law.

6. In the view of the matter we take the appeal has abated and the order impleading legal representatives was void ab initio. K.B.A. Appeal held abated.