1991 PLP 1206 (CLC)

Niamat and another v. Allah Banda and another 1984 S C M R,321 ref. Ch. Mushtaq Ahmad Khan for Appellants. Shehzad Shaukat for Respondent. Date of hearing: 4th March, 1991. This secon4 appeal under section 100, C.P.C. was directed against the judgment and decree dated 16‑4‑1969 whereby the decree of dismissal of suit was set aside, the appeal was accepted and the suit of pre‑emption filed by Lehr Din respondent was decreed. During the pendency of the appeal Lehr Din respondent died on 12‑5‑1971; the appellants submitted an application (C.M.478/73) for bringing on record the legal representatives of Lehr Din plaintiff‑respondent on 3‑1‑1973; this application was accompanied with another application (C.M.479/73)' for condonation of delay and setting aside of abatement. This Court vide order dated 19‑2‑1973 issued notice to the legal representatives of respondent No.1 as well as to the remaining respondents. These applications were resisted vehemently by riling written reply on 18‑6‑1973 on behalf of the legal representatives of Lehr Din deceased respondent. The position taken in this reply was that the appellants‑applicants as well as Lehr Din defendant‑respondent were members of same brotherhood and as such were related to each other; the funeral procession. of Lehr Din respondent, who died on 12‑5‑1971, was duly attended by the appellants and so they were fully aware of the death of Lehr Din respondent. It was bona‑fidded that Lehr Din deceased respondent was a Lambardar of the village and necessary steps were taken by the Authorities for the appointment of Lambardar in his place and in these proceedings so held 'Mushtari Manadi' as to the death of Lehr Din was made in the village. Copy of the order passed by the Collector dated 22‑7‑1972 to show that 'Mushtari Manadi' was duly made after the death of deceased Lambardar was placed on record. It was also urged that the new Lambardar was also appointed in place of the deceased Lambardar vide order dated 29‑8‑1972 by the Collector. These facts so brought on record and the objections raised in this reply were not controverted by filing any counter affidavit. The plea taken in the aforenoted two applications was that the appellants did not know and were not able to ascertain the date of death of the respondent and that the petitioners could not make any application earlier due to ignorance and mistake. There is still another application (C.M.5477/81) on record moved by the legal heirs of Lehr Din deceased respondent for bringing on record the legal heirs of Mst. Sardar Bibi, widow of Lehr Din deceased. This application was granted vide order dated 6‑10‑1981.

2. Learned counsel for the petitioners‑appellants argued that in view of the fact that the legal heirs of Lehr Din respondent have been brought on record, the abatement stands set aside and the appeal now being competently constituted is to be. disposed of on merits. In this connection reliance is placed on Niamat and another V. Allah Banda and another (1984 S C M R 321). Learned counsel for the legal representatives of Lehr Din deceased respondent on the other hand argued that the said application (CM 5477/81) as is apparent from para 2 thereof was moved under the misapprehension that Mst. Sardar Bibi, widow of Lehr Din deceased, had already been brought on record; that this application was apparently based on the misconception that the legal heirs of Lehr Din deceased respondent had begin brought on record. In these circumstances the petitioners appellants cannot claim that in any case the legal heirs of Lehr Din respondent are on record and as such this Court should proceed to determine the appeal on merits. It was lastly contended that abatement is to be set aside by a conscious order and as admittedly no such conscious order was ever passed the appeal, which abated ‑ automatically cannot be considered to have revived merely because the order dated 26‑10‑1981 was passed on the basis of a misconceived application. Learned counsel for appellants lastly urged that discretion may be exercised in the circumstances of the present case and the abatement be set aside in the interest of justice. 3. 1 have considered the respectiv6 submissions of the parties. The application (C.M.5477/81) as is apparent from para 2 thereof was moved by misconceiving the position obtaining on record. This Court on the application (C.M.478/73) had only directed issuance of a notice to the concerned parties. The legal representatives of Lehr Din deceased respondent had not yet been brought on record when the said application was moved. Moreover, the benefit of bringing on record the legal representatives of Mst. Sardar Bibi deceased would only accrue if Mst. Sardar Bibi herself was party to the appeal. She was admittedly not a party to the appeal and in fact the date on which she died the appeal was no longer pending as it stood dismissed as having abated automatically, after the expiry of prescribed period from 12‑5‑1971, the date of death of Lehr Din, Coming to the question of discretion it is to be seen that the question of exercising the discretion would arise where there is no automatic abatement under the law. Even otherwise the question of discretion cannot be exercised in favour of the petitioners‑appellants as it cannot be believed that they could not have known the facturn of death of Lehr Din deceased respondent in the facts and circumstances of the present case. Lehr Din was a Lambardar of the village, to which the petitioners‑appellants belong. The assertion made in the affidavit accompanying the reply to the application is that they attended the funeral of Lehr Din deceased Lambardar and that in any case Mushtari Manadi about his death was also made in the village in the proceedings held for the appointment of the successor of the deceased Lambardar. These assertions contained in the affidavit were not controverted by filing another affidavit. In these circumstances the petitioners cannot be believed when they assert that they did not come to know of the death of Lehr Din respondent, who was their relative and belonged to the same brotherhood and was also the village Lambardar. For the reasons given above no ground is made out for setting aside the abatement. These applications are, therefore, dismissed. Parties are, however, left to bear their own costs. H.B.T./M‑2736/L. Application dismissed.