P L D 1971 Quetta 69 (PLP)

2. Mr. Karam Elahi, learned counsel for the applicants, advanced several arguments to show that the order of the learned Civil Judge dismissing the restoration application of the applicants was not according to law. However, he admitted that within a year after the admission of the revision application by this Court, the respondent Asfandyar had died, therefore on r6‑8‑1970 the applicants had filed an application under Order XXII, rule 4, C. P. C. for impleading the legal heirs of Asfandyar deceased and as they professed not to know their names, they prayed that the second respondent, who was the brother of the deceased, be directed to supply the names of the legal heirs of Asfandyar deceased. The second respondent filed a statement in this Court containing the names of the legal heirs of Asfandar deceased on 18‑8‑1970 and the record of the Court shows that a copy of this statement was received by Mr. Karam Elahi the same day. Then, after a delay of almost one week, on 24‑8‑1970, the applicants filed a second application under Order XXII, rule 4, C. P. C. for impleading. as the legal heirs of Asfandyar the persons named in the second respondent's statement of 18‑8‑1970. It 'is relevant to observe here that by this time the applicants were or should have been aware that Asfandyar had died in 1969, yet they neither filed an applica tion under Order XXII, rule 9 nor did they file an application under section 5 of the Limitation Act. But on 12‑11‑1970 they filed a third application under Order XXII, rule 4, C. P. C. In this application, for the first time, they invoked section 5 of the Limitation Act, and prayed that their delay in impleading the legal heirs of Asfandyar deceased should be condoned.

3. Mr. Hanafi opposed all the applications filed by the applicants under Order XXII, rule 4, C. P. C. and submitted that even the first application under Order XXII, rule 4 had been filed more than a year after the death of Asfandyar deceased, there fore as no application had been filed under Order. XXII, rule 9, C. P. C. the revision had abated. Mr. Karam Elahi did not even attempt to explain why the applicants had not filed an applica tion under Order XXII, rule 9, C. P. C. even after they had learnt or should have known that the revision against Asfandyar had abated. However, because in their third and last application under Order XXII, rule 4 the applicants had also relied on section 5 of the Limitation Act, learned counsel submitted this was sufficient to prevent the abatement of the proceedings against Asfandyar. I cannot accept this submission. Section 5 does A not apply by its own force to Order XXII, rule 4, C. P. C. nor has the section been made applicable by that Rule, therefore the revision against Asfandyar has abated. I am fortified in my opinion by a judgment of the Allahabad High Court in Secretary of State for India v. Jwahir Lal (25 I C 49) where the same view was taken. Even otherwise an applicant under section 5 has to justify the delay of each day after the expiry of the statutory period of limitation, but the explanation of the applicants is utterly unsatisfactory. In their affidavit in support of their third and last application under Order XXII, rule 4 they have stated that they had learnt from the Court of the death of Asfandyar "on or about 5‑8‑1970, therefore on 6‑8‑1970 the applicants filed the above‑noted application . . . . . . ." But when the record of the case was examined, Mr. Karam Elahi was compelled to admit that the applicants had become aware of the death of Asfandyar on or about 30th July 1970. He however submitted that the period between 30th July 1970 and 5th August 1970, was not fatal to the claim of the applicants because this period was spent in obtaining instructions. But this was not the plea of the applicants in their affidavit in support of their section 5 application, and in any case, the explanation now offered is too vague to satisfy the requirements of section 5 of the Limitation Act. However, even if I assume for the sake of argument that the delay between 30th July and 5th August 1970, can be condoned, the applicants had received the names of the legal heirs of the deceased respondent on 19‑8‑1970; yet with the full knowledge that time was running against them they filed their second application under Order XXII, rule 4, C. P. C. on 24‑8‑1970. There is absolutely no explanation of this delay, therefore, according to the settled law, the applicants have failed to make out sufficient cause under section 5 of the Limitation Act. In any view of the matter, the revision has abated against Asfandyar.

4. Mr. Karam Elahi then submitted that he would argue in the alternative that the provisions of Order XXII, C. P. C. were not applicable at all to revision applications, therefore the revision could not abate, and in support of this argument he referred me to judgments of the Court of the Judicial Commis sioner, Sind in Bakhsho v. Piaro (A I R 1920 Sind 120); Naoomal Tourmal v. Tarachand Sobhraj (A I R 1933 Sind 200); to a judgment of the Oudh Chief Court in Nawab Sayed Qasim Hussain v. Seth Piare Lal (A I R 1939 Oudh 277);. to a judgment of a Full Bench of the Lahore High Court in Khan Muhammad Saadat Ali Khan v. The Administrator Corporation of the City of Lahore (P L D 1949 Lah. 541). In all these judgments, it has been held that the provisions of Order XXII, C. P. C. are not applicable to revision applications. But, on the other hand, a contrary view was taken by the Calcutta High Court in Dasi v. Rudra (21 I C 407), and by the Madras High Court in Bisawanjaniyutu v. Ramalingayyo (A I R 1938 Mad. 115), whilst Cornelius, J. held in a Full Bench case reported in Ajudhia Pershad v. Sham Sunder (A I R 1947 Lah. 13) that the Lahore High Court did not have a settled practice on this question. Thus there is a conflict of authority on the applicability of Order XXII, C. P. C. to revision applica tions, and as none of the judgments cited are binding on this Court the question is which of these conflicting authorities is to be preferred.

5. As all the case‑law has been considered in the Lahore Full Bench case, it will be sufficient to examine this case only, but before I do so, I will briefly refer to the relevant provisions of the Civil Procedure Code and of the Limitation Act. The provisions of Order XXII, C. P. C. refer to suits only, but rule 11 prescribes that the words "plaintiff", "defendant" and "suit", wherever used in the Order, shall be held to include the words "appellant", "respondent" and "appeal" respectively. Rule 12 then prescribes that the provisions of the Order shall not be applicable to execution proceedings. The result is that, although Order XXII does not apply in terms to revision applications, there is nothing in this Order to prohibit its application to Revisions. In this context the provisions of section 117 of the C. P. C. are significant. This section states: "Save as is provided in this Part or in Part X or in rules the provisions of this Code shall apply to High Courts". I would pause here to point that, although the matter is not free from doubt, as the application of Order XXII is expressly barred only with respect to execution proceedings, prima facie the effect of section 117 is to make the provisions of Order XXII applicable to revision applications. But Order XXII does not prescribe the period of limitation for filing applications for impleading the legal heirs of a deceased litigant, and as the question here is whether the appellants filed their applications under Order XXII, rule 4 within time, it is necessary to refer to the Schedule of the Limitation Act. The relevant Articles are Articles 176 and 177, both of which prescribe a period of 90 days for impleading the legal heirs of a deceased litigant. Article 176 refers to an application "to have the legal representatives of a deceased plaintiff or of a deceased appellant made a party", whilst Article 177 relates to applications to implead "the legal representative of a deceased defendant or of a deceased respondent", therefore Article 176 clearly does not apply in terms to revision applications. But, on the other hand, Article 177 would prima facie include the deceased respondent in revision applications. This is perhaps anomalous, and in all the circumstances discussed it is not surprising that there has been a conflict of authority on the question whether Order XXII applies to revision applications.

6. I shall now consider the Lahore Full Bench judgment in Saadat Ali Khan's case, and I may point out here that Cornelius, J., who had doubts in the earlier Lahore case, on the applicability of Order XXII to revision applications, was a party to this judgment. Be that as it may, the learned Judges have given three reasons in this judgment for holding that Order XXII, is not applicable to revision applications. The first reason is that Article 176 of the Limitation Act does not apply to revision applications because it only refers to applications to implead the legal heirs of a deceased plaintiff or a deceased appellant but not a deceased applicant. The second reason is that Order XXII does not apply in terms to revision applications and further that it is not attracted to revision applications by virtue of section 141, C. P. C. The third reason is that as revision proceedings are different from appeals, the provisions appli cable to appeals cannot be extended to such applications.

7. I will now examine these reasons and as to the first reason. I have to point out that Saadat Ali Khan's case turned on the construction of Article 176, whilst the instant case falls under Article

177. As the language of these two Articles is materially different, the judgment cited is distinguishable on this point. As to the second reason given by the learned Judges. I respectfully agree with their view that Order XXII does not apply in terms to revision applications, and even if I further assume that section 141, C. P. C. is not applicable to such applications, with very great respect, I have to point out that the effect of section 117, C. P. C. is to extend to revision applications all the provisions of the Civil Procedure. Code, except those expressly excluded. Merely because Order XXII does not apply in terms to revision applications, it cannot be said that it has been expressly excluded within the meaning of section 117, therefore prima facie revision applications are subject to Order XXII by virtue of section 117, C. P. C. Unfortunately, the attention of the learned Judges was not drawn to this section. As to the third ground, it will be convenient to quote the relevant observations of the learned Judges.

8. Sir Abdur Rehman, A. C. J. observed at page 548:‑ "If the High Court decides to act under section 115 suo motu, can it legitimately be contended that it would have no power left to do so only because a party to the case had died either before or even after the date on which it was decided to take action under this section? I do not think so. If the High Court finds injustice to have been done, should it be allowed to remain perpetuated simply because one of the parties to the case had happened to die before or after the order calling for the record of the case had been passed by the High Court? By whom, moreover, is an application to bring the deceased's legal representatives on the record to be made?, Surely not by the Court. It could have ordered them to be brought on the record but to that order Article 176 of the Limitation Act is not applicable. It only applies to applications. This was a simple case. But what about petitions for revision which have been filed by private Individuals? They have no legal right to be heard in support of such applications‑--although as a matter of prudence they usually are and if the Legislature had merely intended private individuals or parties to a case to draw the attention of the High Court as the words of section 115, Civil Procedure Code, seem to me to indicate, it could not be prevented from making the legal representatives of a deceased petitioner or respondent consequent either on one death or on a series of deaths as parties to the proceedings in revision. For to hold that it had no such power would be tantamount to holding that it cannot do justice even in the limited number of cases referred to in section 115 and even when it is clearly of the view that it should interfere in order to do complete justice between the parties or their legal representatives as the case may be within the terms of that section." If this view is accepted, the applicant in a revision application is in a favourable position compared to the appellant in an appeal, even though the great majority of revision applications are filed at the instance of the litigant. With very great respect for the eminent Judges of the Full Bench, I demur to the view that Order XXII should not be applied to revision applications because it would fetter the power of the High Court to rectify injustice. As, in taking this view the learned Judges were impressed by the necessity of preserving the suo motu powers of the High Court under section 115, I would humbly point out here that a suo motu revision by the High Court is not affected by limitation, as held by the Supreme Court fn Muhammad Swaleh v. United Grain and Fodder. Agencies (P L D 1964 S C 97). But a revision at the instance of a private litigant is generally dismissed unless it is filed within three months of the date of the order. Therefore, by parity of reasoning, merely because Order XXII is not applicable to the Court's suo mote powers of revision, I see no reason why Order XXII should not be applied to revision applications filed by litigants. Similarly, with regard to the observation of the learned Judges that litigants "have no legal right to be heard in support of revision applications", with very great respect, I am not able to agree with this view, and in my humble opinion the view of Stodart, J. in Basawanjanayulu v. Ramalingayya that the litigant 3s entitled to be heard in a revision application is to be preferred. Therefore in my humble opinion. the view taken in Saadat All Khan's case requires reconsideration.

9. However, Saadat. Ali Khan's case was followed by a Single Bench of the West Pakistan in Sikandar v. Zuber and others (P L D 1962 Pesh. 105), and it was again approved by a Division Bench of the West Pakistan High Court in Chand and others v. Abdul Ghaffar and others (P L D 1965 Lah. 596). The Lahore case related to a writ petition, and as there is an obvious analogy between a writ petition and a writ of certiorari, I would briefly refer to this case. In this case, a learned Single Judge of the Lahore seat of the West Pakistan High Court had dismissed a writ petition on the ground that it had abated under Order XXII, C. P. C. This order was challenged in an appeal, and in allowing the appeal the learned Judges of the Division Bench took the view that Order XXII, rule 4 had root been made applicable to writ petitions by the rules of the High Court, that it was a penal rule and that it could not be made applicable by virtue of section 141, C. P. C. because the effect of that section was to make applicable to writ petitions only those provisions of the C. P. C. which were not of a penal nature. Then in reference to Saadat Ali Khan's case, the learned Judges observed at page 599:‑ "In Saadat Ali Khan v. Administrator Corporation of the City of Lahore a Full Bench of this Court negatived the contention that by virtue of sections 117 and 141, C. P. C. the provisions of Order XXII, rule 4, C. P. C. became applicable to revision applications under section 115, C. P. C." Mr. Hanafi criticised these observations and rightly pointed out that the learned Judges of the Full Bench in Saadat Ali Khan's case had not considered section 117, C. P. C., therefore he submitted that the case was distinguishable. It is true that section 117, C. P. C. was not considered in Saadat Ali Khan's case, but merely because of this it cannot be said that Chand's case is distinguishable, and if the matter had rested here, I would have followed this judgment.

10. However, the question of applying the provisions of the Civil Procedure Code to writ petitions was considered by their Lordships of the Supreme Court in Hussain Bakhsh v. Settle ment Commissioner, Rawalpindi (P L D 1970 S C 1). In that case a Division Bench of the West Pakistan High Court had refused to review an order passed by it dismissing in limine a petition under Article 98 of the Constitution on the ground that it had no jurisdiction to review orders passed by it in the exercise of its extraordinary jurisdiction under Article

98. An appeal was" admitted against this judgment by the Supreme Court to consider whether the provisions of the Civil Procedure Code other than those expressly excepted were applicable to the writ jurisdiction of the High Court under Article

98. In allowing the appeal M. R. Khan, J. examined the relevant provisions of the Civil Procedure Code and specially section

117. His Lordship then considered the decision of the Judicial Committee in Sabitri Thakurani v. Savi (A I R 1921 P C 80) and observed at page 7 as follows:‑ "As regards application of the provisions of the Code in proceedings before a High Court, their Lordships of the Privy Council in Sabitri Thakurani v. Savi A I R 1921 P C 80 observed: `The Code is framed on the scheme of providing generally for the mode in which the High Court is to exercise jurisdiction, whatever it may be, while specifically excepting the powers relating to the exercise of original civil jurisdiction, to which the Code is not to apply. The words clearly indicate that the provisions of the Code, other than the specially excepted ones, shall apply in the exercise of the High Court's jurisdiction." Then, after referring to the nature of the writ jurisdiction and the provisions of section 117, C. P. C., His Lordship observed: "By virtue of section 117 of the Code a civil proceeding in a High Court is also governed by the provisions of the Code other than the provisions which are specially excepted." I am in respectful agreement with these observations, which are fully applicable to the instant case because revision applications are civil proceedings in the High Court. Accordingly, the only question for determination is whether with regard to revision applications, the provisions of Order XXII, C. P. C. have been "specially excepted". I have explained that there is nothing in Order XXII to support this view, nor was Mr. Karam Elahi able to refer me to any provision which would exclude the applicability of Order XXII to revisions. Learned counsel however submitted that the observations quoted were distinguishable because the case before their Lordships turned on the applicability of Order XLVII to writ petitions. It is true that the case before their Lordships arose out of a review application. But in deciding it their Lordships have construed section 117, C. P. C. and held that by virtue of this section the provisions of the Civil Procedure Code are applicable to all civil proceedings in the High Court "other than the provisions which are specially excepted". As these observations are on the scope and effect of section 117, C. P. C. and are not subject to any qualifica tion, I am not able to accept Mr. Karam Elahi's argument, and I hold that Order XXII is applicable to revision applications.

11. As Order XXII is applicable to revision applications the applicants had to take steps to implead the legal heirs of Asfandyar deceased in the manner prescribed under Order XXII, C. P. C. read with section 5 of the Limitation Act. Unfortu nately, as I have explained, they were negligent in taking these steps with the result that the revision against Asfandyar has abated. But Asfandyar and his brother, the third respondent, were the vendees under the sale which is challenged by the applicants in their suit, therefore Asfandyar was a necessary party to the revision application before me and, as the revision has abated against him, it follows that it has abated totally. It is therefore not necessary to consider the other arguments of the learned counsel. The revision is dismissed as having abated, but I leave the parties to bear their own costs. S. Q. Revision dismissed.