P (PLP)

MUHAMMAD SHAFI, J.‑Arbab Said Khan and four, others instituted a suit against Sarwar Khan, and Murad Khan, sons of' Arbab Lashkar Khan and six others for a declaration that they were the owners of 11 kanals of land out of 14 kanals 13 marlas bearing Khasra Nos. 76, 277, 272, and 291 situated in Landi Yarghajo, and that the judgment of Sub‑Judge . 1st Class, Peshawar, dated 16th January 1946, by which a decree for possession of the land in suit had been awarded in favour of defendants Nos. 1 and 2, was null and void and ineffective so far as the plaintiffs' rights were concerned. The learned Sub‑Judge 4th Class, Peshawar, who heard the case, decided it on the 6th of September 1948, and granted plaintiffs a declaration to the effect that they were the owners of 2 kanals 15 marlas of land out of the suit property, and that the decree, dated 16th January 1946 in favour of defendants Nos. 1 and 2 was inoperative against the rights and interests of the plaintiffs to that extent. The parties were ordered to bear their own costs. Both the plaintiff's and the respondents went up on appeal against this decree. In both the appeals applications were made by the respective appellants that Murad Khan had died and that his only legal representative was Sarwar Khan defendant, who was already a party to the case. Arbab Sarwar Khan requested that he should be appointed the legal representative of Murad Khan, while Arbab Said Khan plaintiff said that Sarwar Khan defendant should be considered as the legal representative of Murad Khan. The learned Additional judge found that Murad Khan had died while the suit was still pending in the trial Court, and as his legal representatives were not brought on the record, therefore, the suit had abated in toto According to him the decree passed in the case was a waste paper and as there was no valid decree, neither party was competent to appeal against it. Both appeals were consequently dismissed, but no order as to costs was given. The plaintiffs have come up on revision against this order, and it is argued on their behalf that the judgment of the, learned lower appellate Court that the suit bad abated in toto was erroneous, because the only legal representative of Murad Khan was already on the record and the suit under the circum stances could not abate. Order XXII, Civil Procedure Code deals with the abatement of the suits. It contemplates two kinds of cases, (1) where on the death of one plaintiff' or defendant out of several plaintiffs or defendants the right to sue survives to the surviving plaintiff or plaintiffs, or against the surviving defendant or defendants, and (2) where the sole plaintiff' or the defendant dies or when a plaintiff' or defendant out of several plaintiffs is defendants die and the right to sue does not survive to the surviving plaintiff or against the surviving defendant. The former case is covered by Order XXII, rule 2, Civil Procedure Code, while the latter case is governed by Order XXII, rule 3 and

4. In the former case the Court has to cause an entry to that effect to be made on the record and the suit has then to proceed at the instance of the surviving plaintiff or the plaintiffs, or against the surviving defendant or the defendants There is no necessity in this case to make an application for bringing the legal representative of the dead defendant on the record, because he is already there although in a different capacity. In the latter case, however, an application has got to be made for bringing the legal representative of the dead plaintiff' or defendant on the record within a prescribed time and if no such application is made the consequence is the abatement of the suit in the case of the dead plaintiff so far as that plaintiff is concerned and in the 'case of the dead defendant inasmuch as the case against that defendant is concerned. It is significant to note that in the cases covered by Order XXII, rule 2, Civil Procedure Code, there is no provision of the abate ment of the suit as is to be found in Order XXII rules 3 and

4. In fact Order XXI1, rule 1, which runs as under. " The death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives ". specifically prevents the abatement of the suit in such circum stances. In the case before me no doubt Murad Khan had died during the pendency of the suit in the trial Court, but' according to all the parties concerned the right to sue had survived to the surviving defendant Sarwar Khan. Consequently I there was no question of the abatement of the suit at all. The order of the learned lower appellate Court being obviously wrong must be set aside. The result is that I accept this petition, set aside the order of the learned Additional judge and remand the case back to him to decide it on merits. The petitioners shall have their costs in this Court Counsel's fee Rs.

25. Orders announced. A. H. Petition accepted.