1983 PLP 1346 (CLC)

(b) Civil Procedure Code (V of 1908)‑. ‑‑ S. 115 read with O. XXII, rr. 3 & 9‑Revision‑‑Application for bringing legal representatives on record of suit‑No evidence to show that applicant made any request before Courts below for treating application under r. 3 as one under r. 9 of O. XXII‑Held, courts below in dismissing application under r. 3 cannot be said to have refused to exercise jurisdiction vested in them‑‑No error of law to justify, interference, in revisional jurisdiction under S. 115 pointed out‑Petition dismissed. A. Fateh Mernon for Applicants. M. S. Nizamani for Respondents. Date of hearing : 10th January, 1983. This revision application is filed by the applicants against the order of IInd Additional District Judge, Larkana, rejecting the appeal of the applicants against the order of Civil Judge, Larkana, whereby he refused to set said the abatement of Suit No. 38 of 1968. One Abdul Aziz son of Muhammad Punjal Memon filed Suit No. 38 of 1978 against the respondents claiming right of pre‑emption in respect of a house situated in Lahori Mohalla, Larkana town. During the pend ency of the suit the 4aid Abdul Aziz died on 15th June, 1969 and the pre sent applicants who are the heirs of said Abdul Aziz filed an application under Order XXII, rule 3, C. P. C. on 15th September, 1969 praying that their names may be substituted in the suit in place of deceased Abdul Aziz, The application was opposed by the respondent and the Civil Judge rejected the same on 1st April, 1971 on the ground that the application was beyond time. The applicants soon after dismissal of their applica tion under Order XXII, rule 3, C.P.C. applied under Order XXII, rule 9, C. P. C. for setting aside the abatement of suit. This application was also rejected by the trial Court on the ground that the cause of action in the suit did not survive after the death of deceased plaintiff Abdul Aziz and the application for setting aside of the abatement was time‑barred. On appeal the Additional District Judge, Larkana, came to the conclusion that the right to sue did survive after the death of deceased plaintiff Abdul Aziz but he rejected the appeal of applicants on the ground that the ap plication for setting aside of the abatement was beyond time as the suit stood abated on 13th September, 1969 on the death of plaintiff Abdul Aziz while the application for setting aside abatement was filed on 14th April, 1971. It was also found by the first appellate Court that as no applica tion under section 5 of the Limitation Act was filed the delay in filing the application under Order XXII, rule 9, C. P. C. could not be condoned. Mr. Abdul Fateh Memon, the learned counsel for the applicants con tended before me that the order of the first appellate Court refusing to set aside the abatement after having reached the conclusion that the right to sue survived is an illegal order. It is urged by the learned counsel that under section 14 of the Limitation Act, the applicants are entitled to claim exclusion of time spent by them in pursuing the application under Order XXII, rule 3, C. P. C. before the Court and therefore, if the period during which the said application was pending before the Court is exclu ded the application under Order XXII, rule 9, C. P. C. filed by them for setting aside abatement was within time. Alternatively it is contended that the Courts below having found that the application under Order XXII, rule 3, C. P. C. was not within time, the same should have been treated as an application under Order XXI1, rule 9, C. P. C. and disposed of as such in the interest of justice. In so far the contention of Mr. Abdul Fateh Memon that the applicants were entitled to exclude the time under section 14 of Limitation Act. spent by them in perusing their application under Order XXII, rule 3, C.P.C. before the trial Court, is concerned, I am of the view that the provisions of section 14 of the Limitation Act have no application in the circumstances of the present case. In order to avail of the provisions of section 14 of the Limitation Act, the applicant must show that he was diligently perusing another civil proceeding whether in the Court of first instance or in a Court of appeal against the same party bona fidely and that Court for defect of jurisdiction or other cause of like nature was unable to entertain the same. In the case before me neither the application under Order XXII, rule 3, C. P. C. filed by the applicants before the trial Court could be considered as another civil proceeding in the Court of first instance nor was it refused by the Court for reasons of defect of jurisdiction or any other ‑ cause of like nature. The trial Court had the necessary jurisdiction to decide the application of applicants under Order XXII, rule 3, C. P. C. but it was refused as it was found to have been filed by the applicants after expiry of the period prescribed for filing of such application. I am therefore of the view that the applicants could not claim advantage of section 14 of the Limitation Act and in the absence of an application under section 5 of the Limitation Act the Court could not condone the set. The next contention of Mr. Fateh Memon is that it was open to the Court to have treated the application of applicants filed under Order XXII. rule 3, C. P. C. as an application under Order XXII, rule 9 and set aside the abatement which in the meantime had taken place. It is true that it was within the competence and powers of the Courts below to have treat ed the application under Order XXII, rule 3, C. P. C. as one under Order XXII, rule 9, C.P.C. if it was otherwise in order, but for that there should have been a request made to the Court by the applicants. The learned counsel admitted before me that the record does not show that any such request was made either to the trial Court or to first appellate Court. On the contrary the record shows that after the dismissal of the application ‑under Order XXI1, rule, 3, .C. P. C. an application under Order XXII, B rule 9, C. P. C. was filed and it was contended that the latter application was‑ within time. In the absence of a contention before the Courts below that the application under Order XXII, rule 3, C. P. C. may be treated as one under Order XXII, rule 9, C. P. C. it cannot be said that the Courts below refused to exercise the jurisdiction vested in them by law. No error of the kind, which would. justify interference in exercise of revisional jurisdiction of this Court under section 115 of the C. P. C. is pointed out by the learned counsel for .the appellants. I accordingly dismiss this revision application but in the circumstances of the case there will be no order as to costs. S. Q. Petition dismissed.