1990 PLP 191 (CLC)

2. Briefly stated, the facts giving rise to this application are that Tsissadiq Hussain Shah and Gul Hussain Shah sold the land comprising survey Nos. 154 and 104, measuring 24 kanals 11 marlas, situate in village Chhani, Tehsil and District Kotli, to Manga, non‑petitioner and Gul Muhammad whereupon Walayat Hussain Shah, petitioner instituted a pre‑emption suit against the aforenamed vendees and vendors of the suit land, in the Court of Sub‑Judge, Kotli. The abovc suit was dismissed by the trial Court in default of appearance of the petitioner, on 2‑10‑1964, but on the application of the petitioner the same was restored on its original number vide its order dated 19‑10‑1964. It was again dismissed by the trial Court vide its order dated 9‑6‑1905 on account of the default of the petitioner in not depositing the one‑fifth of the sale‑price of the suit land. The above order of dismissal of the suit was challenged by the petitioner in appeal before the District Judge, Kotli who vide his order and judgment dated 7‑6‑1969 set it aside and remanded the case back to the trial Court with the direction to decide it in accordance with law. Gul Muhammad, vendee‑defendant filed an 'appeal against the above order of the District Judge dated 7‑6‑1969 before this Court which set it aside alongwith the orders of the Courts below dated 9‑6‑196 and 19-10‑1964, with the direction to take off the application for restoration of the suit dismissed in default together with the objections filed therein by the non ,applicant and after registering under a separate number, to try and decide it to the light of the issues framed in the remand order, vide its order dated 17‑7‑1970. The above‑mentioned application for restoration of the suit was pending decision when on 14‑11‑1973, Manga, non‑petitioner moved an application before the trial Court for dismissing the same on the ground of its having abated for non impleadment of the legal representatives of Gul Muhammad non-petitioner who had dies on 18-8-1972. The petitioner did not move the trial Court for substituting the legal representatives of the above‑named deceased non‑petitioner till 14‑4‑1990 when he made an application for the purpose but the‑ said application as held to be time‑barred and as a result, the aplication of the petitioner for the restoration of his suit dismissed in default, was dismissed on the ground of it, having abated for non‑impleadment of the legal representatives cat Gul Muhammad, deceased non‑petitioner. The above order of the Sub‑judge dated 31‑5‑1991 has been called in question in this revision petition which was previously dismissed by a learned Judge of this Court seized with its hearing vide his order dated 26‑5‑1982, but the Supreme Court, on appeal, after setting aside the above order, has remanded the case back for fresh decision after taking into consideration the observations made in its remand order

3. I have heard the learned Counsel for the parties and have also gone through the record of the case. In the light of the Supreme Court's above remand order, the following questions fall for determination in this petition: (i) Whether this revision petition is barred by limitation. (ii) Whether the provisions of Section 141, C.P.C. extend to an application for bringing the legal representatives of the deceased non‑petitioner in an application for the restoration of the suit dismissed in default so as to attract the provisions of Article 177 of the Limitation Act providing of period for limitation for filing an application under Order 22, Rule 4, C.P.C. for bringing the legal representatives of a defendant in a suit the answer to the question is found in the negative, then which of the provision or provisions of the C.P.C. or any other law would apply to the aforesaid application of the petitioner? (iii) Whether or not the application of the petitioner for restoration of‑ his suit dismissed in default had abated in totality in view of the compromise entered into by Gul Muhammad deceased vendee‑non‑petitioner with the petitioner in a suit for pre‑emption filed against him and Manga, non‑petitioner by the petitioner?

4. Now, I proceed to decide the above questions seriatim: It is contended by the learned Counsel for the non‑petitioner that this application is time‑barred as it has been filed after the lapse of a period of more than 3 months from the date of the passing of the order impugned therein. But I find no merit in this contention as nether any period of limitation is prescribed for filing a revision petition before this Court by any law nor any rule has been framed by this Court to exercise of its rule‑making power prescribing any limitation for such an application. Since the application has been admitted for regular hearing, it needs to be decided on merits notwithstanding the fact of having been filed after the period fixed for filing an appeal before this Court Hence, this application is held to be not barred by limitation. 6: As regards the second question framed above, the learned Counsel for the petitioner has contended that Article 177 of the Limitation Act only applies to an application for bringing the legal representative of the deceased defendant in a suit or appeal, as the case may be, and not to an application for bringing the legal representatives of a deceased non‑petitioner in an application and, as such, the Court below had erred in pressing into service the above Article of the Limitation Act for dismissing the application of the petitioner for restoration of his suit dismissed in default, on the ground of its having abated for non‑impleadment of the legal representatives of Gul Muhammad deceased non‑petitioner. In support of his above contention, he has referred to 1986 C.L.C. 1320.

7. The learned Counsel for the non‑petitioner, on the other hand, has contended that in view of the provisions of Section 141, C.P.C. the Article 177 of the Limitation Act also governs the above application of the petitioner for bringing the legal representatives of Gul Muhammad, non‑petitioner because by virtue of the said section, the procedure provided in the Code of Civil Procedure in regard to suits shall be followed as far as it can be made applicable in all proceedings in any Court of civil jurisdiction and, as such, the Court below has rightly passed the impugned order. To support his above contention, the learned Counsel has referred to P L D 1978 Karachi 210, P L D 1971 Karachi, 1982, 1985 SCMR 1360, and P L D 1981 Lahore 466.

8. I have gone through the above authorities cited by the learned Counsel for the parties as well as some others on the point at issue. There is divergence of opinion on the point as to whether the application of the provisions of Section 141, C P C is restricted only to the original matters in the nature of the suits or also extends to all the proceedings in a Court of Civil jurisdiction and, as such, the said proceedings are applicable to all applications in a Civil Court. In a Privy Council decision in a case entitled `Thakar Preshad v. Faqirullah (I.L.R. 17, Allahabad 106) which has also been referred to by the Supreme Court in its remand order, it was held that Section 467, C.P.C. which corresponded to the present section 141, C.P.C. applies only to the original matters in the nature of the suits such as proceedings in probates, guardianship and so forth and not to execution applications, but the above decision has not been followed in many cases by the superior Courts in Pakistan wherein it has been held that Section 141, C P C is also applicable to all the proceedings in a Court of civil jurisdiction and its application is not intended to be restricted to the provisions of the Code only to the original matters in the nature of the suits which may be pending before any Court of civil jurisdiction. In this connection, 1985 SCMR 359, P L h 1970 S.C. 1, 1971 SCMR 98, 1981 SCMR 777, P L D 1983 S.C. 62, P L 1) 1973 Lahore 325, P L. D 1973 Lahore 567, P L D 1974 Lahore 285, P L D 1981 Lahore 406 and PLD 1978 Kar. 210 may be mentioned. However, for the purpose of the decision of this case the divergence of opinion on the above 'point is not very much relevant in view of the decision of the Supreme Court reported in 1986.C.L.C. 1320 which would govern this case and wherein it has been held that:‑ "It is evident from the provisions contained in Section 1 41, CRC. that the procedure provided in the Civil Procedure Code with regard to the suits, so far it can be made applicable, shall be followed in all the proceedings in any Court of civil jurisdiction. Section 141 merely speaks of procedure and does not make the provisions of the Limitation Act relating to suits or appeals, applicable to such proceedings. Thus, the period of limtation provided under Article 176 or 177 of the Limitation Act for bringing the legal representatives of plaintiff/appellant and defendant respondent on record would not govern an application under Order IX, rule 9 by virtue of Section 141, C.P.C‑ As for such cases, there is no provision in the Limitation Act providing period of limitation for bringing the legal representatives of the deceased applicant or non applicant on the record, the limitation prescribed for bringing legal representatives on record would be governed by the residuary Article 181 of Limitation Act which provides a period of three years from the date ' when right to apply accrues‑ Therefore, the period of limitation for bringing the legal representatives of an applicant or non‑applicant in an application under Order IX, rule 9 or for the restoration of such application would be 3 years from the date of the death of the party concerned and not 90 days as prescribed under Articles 176, 177 of the Limitation Act. We are supported by the view taken with regard to the impleadment of the legal representatives in revision petitions. It has been held by various judicial authorities that if at all Order XII is held applicable to a revision petition, the period of limitation for brining the legal representatives on record would be governed by Article 181 and not Article 176 of C.P.C." In view of the above ruling of the Supreme Court of Azad Jammu Kashmir which is binding on this Court, Section 141, C.P.C. was not attracted to the application of the petitioner for bringing the legal representatives of Gul Muhammad, non‑petitioner, in an application for the restoration of his suit, with the result that the provisions of residuary Article 181 and not 177 of the Limitation Act govern the said application. The (acts of he. above‑ referred Supreme Court's case were on all fours with those of the present case. In that case too, the application for bringing the legal representatives of the deceased non‑petitioner in an application for the restoration of the suit was held to be governed not by Article 177 but by 181 of the Limitation Act under which a period of limitation for filing an application for bringing the legal representatives of the deceased non‑applicant n an application under Order IX, rule 9, C.P.C. would be 3 years from the date of death of the deceased non‑petitioner. Thus, the Court below was wrong in applying the revisions of Article 177 of the Limitation Act for holding the application of the petitioner in question being time‑barred But in the case of the application of the petitioner under discussion the result would be the same whether Article 177 or 181 is made applicable to it as it would be barred by limitation under each of the above Articles. As said earlier that Manga, respondent had made an application to the Sub‑Judge, Kotli on 14‑3‑1973 that Gul Muhammad non‑applicant therein had died on 18‑8‑1972, the petitioner was made aware of the fact of death of Gul Muhammad, non petitioner on 14‑11‑1973, whereas he had applied for the substitution of the legal representatives of the said deceased non‑applicant on 14‑4‑1980 which means after more than six years even from the date of his knowledge of the death of the said deceased respondent. It was, therefore, hopelessly time barred even under Article 181 of the Limitation Act which would be applicable to the above application of the petitioner for bringing the legal representatives of the deceased non‑applicant on record, in view of the aforequoted decision of the Azad Jammu arid Kashmir Supreme Court, with the result that his application ‑for the restoration of the suit dismissed in default had abated which had rightly been dismissed by the trial Court on that account.

9. The last point that requires decision is whether or not the application of he petitioner for the restoration of his suit dismissed in default had abated in otality in view of the compromise effected by Manga, non‑applican with the petitioner in a suit for pre‑emption. It is contended by the learned Counsel for he petitioner that Manga, non‑petitioner had filed an application, on 26‑4‑1964 before the trial Court in a pre‑emption suit wherein he had admitted the claim of he petitioner of his prior right of purchase of the suit land and had also receivedRs.1,000 from the petitioner as the price of his share of the suit land and asked or passing of decree of pre‑emption in favour of the petitioner to that extent. On he basis of the contention, it is contended by the learned Counsel that the petitioner's application for bringing the legal representatives of deceased Gul Muhammad, non‑petitioner had not abated in totality but only to the extent of Muhammad deceased. The learned Counsel for the respondent, on the other hand, has argued that the fact of Manga, non‑petitioner entering into a compromise with the petitioner in a pre‑emption suit and consenting to the passing of the compromise decree in favour of the petitioner to the extent of his share in the suit land does not make any difference in this case because no compromise decree could be passed to the extent of the share of the said non‑petitioner being hit by the principle of partial pre‑emption. 10. 1 have given my due consideration to the above respective contentions of the learned Counsel for the parties after which I am of the opinion that notwithstanding the fact that Manga, non‑petitioner had entered into a compromise with the petitioner and had asked the trial Court for passing the is decree for pre‑emption in favour of the petitioner to the extent of his share in the suit land, the application of the petitioner for the restoration of his suit dismissed D in default had abated in totality on account of his having failed to substitute the legal representatives of Gul Muhammad, non‑applicant within the period prescribed by law and referred to above. The transaction of the suit land in favour of Gul Muhammad deceased and Manga non‑petitioner was joint and indivisible as in the sale‑deed neither the share in the suit land nor the price paid by each of the vendees has been specified. Thus, the sale being joint and indivisible, no consent decree could be passed in respect of the partial suit land in terms of the compromise entered into by Manga respondent in favour of the petitioner in a suit for pre‑emption before the trial Court as passing of such a decree is prohibited under the doctrine of partial pre‑emption. Even otherwise, the compromise under discussion was not given effect by the trial Court and even it stood repudiated by Manga, non‑petitioner, inasmuch as it was he who had contested the application of the petitioner for the restoration of his suit dismissed in default and had taken objection about the said application having abated for non‑impleadment of legal representatives of. Gul Muhammad. deceased non petitioner. within the period prescribed by law:‑ For the aforesaid reasons, I find no substance in this revision petition which is dismissed accordingly with costs. AA/370/H.C.A. Revision dismissed