P L D 1989 Azad J&K 28 (PLP)

M. Y. Arvi for Appellants. Agha Ashiq Hussain for Respondents. This is an appeal against the judgment and decree of the District Judge, Mirpur, dated 29‑5‑1988, whereby the appeal of Raj Muhammad deceased, against the judgment and decree of the Sub‑Judge, Mirpur, dated 21‑2‑1987, was dismissed on the ground of its having abated for not bringing his legal representatives on the record within the time limited‑ by law.

2. The brief facts giving rise to this appeal are that Raj Muhammad, deceased, whose heirs are the appellants, and Najib, deceased, whose legal representatives are pro forma‑respondents Nos. 8 and 9, filed a suit for grant of perpetual injunction against Muhammad Sadiq, respondent, for restraining him from forcibly, taking possession of the land measuring 8 kanals 2 marlas comprising survey Nos.275 and 276, situate in village Azizpur, Tehsil Mirpur, from them. The case of the deceased‑plaintiffs was that they were in possession of the suit land since Dogra Regime which lead been unlawfully sold by Khurshid Begum, pro forma‑respondent to Muhammad Sadiq and Muhammad Yasin, respondents who intended to forcibly evict them from and take possession of it. The suit was resisted by the contesting respondents on the ground that they were lawful owners of the suit land but they had no intention to forcibly take possession of the same for the recovery of whose possession they would have recourse to law.

3. The trial Court dismissed the suit of the plaintiffs vide its judgment and decree dated 21‑2‑1987 out of whom Raj Muhammad filed an appeal against the above judgment and decree of the Sub‑Judge before the District Judge. During the pendency of the appeal, Muhammad Sadiq put in an application before the District Judge on 11‑1‑1988 to the effect that as the appellant Raj Muhammad had died on 25‑7‑1987, his appeal had abated on account of his legal representatives having not been impleaded within the time prescribed under law. The counsel for the appellants filed written objections to the above application of the said respondent on 18‑2‑1988 in which it was alleged that the list of the legal representatives of Raj Muhammad deceased had already been filed in the case within the period of limitation which may be got searched from the record and placed on the file, and alongwith it, a list of the legal representatives of the deceased and Vakalatnama was also filed. On the filing of the above objections, Muhammad Sadiq, respondent again made an‑application to the trial Judge objecting to bringing the legal representatives of the deceased appellant on the record on the ground that the application for the purpose would be treated the one dated 18‑2‑1988 which had been filed after the expiry of the period of limitation as the appellant had died on 25‑7‑1987. The counsel for the appellants also filed an affidavit on his own behalf on 26‑5‑1988 affirming therein that he had filed an application for impleading the legal representatives of the deceased in the case before the learned Judge in his retiring room only one and a half month after the death of the deceased‑, appellant, Raj Muhammad, and after obtaining the order of the said Judge on it, handed it over to the Reader of the Court but the some was not now on' the record. After taking into consideration the above‑mentioned applications of the parties and the affidavit and, hearing the arguments of the learned counsel for the parties, the learned District Judge came to the conclusion that the present appellants i.e. the legal representatives of the original deceased -appellant, had failed to bring themselves 'on record as legal representatives of the deceased‑appellant within the prescibred period of limitation and, as such the appeal had abated in toto and accordingly dismissed the same on 'the above ground vide his judgment and decree dated 26‑5‑1988.

4. I have heard the learned ‑counsel for the parties and have also gone through the record of the case. It is contended by the learned counsel for the appellants that he was the counsel for Raj Muhammad, deceased‑appellant and had himself filed an application before the District Judge for substituting the legal representatives of the deceased‑appellant in, the case on behalf of the said legal representatives alongwith his Vakalatnama which was then give to the clerk concerned of the Court for the purpose of filing it with the case but on the objections of Muhammad Sadiq, respondent about the legal representatives of the deceased‑appellant having not been impleaded within time, he examined the file of the case and was surprised to find it missing from the file of the case. He has further contended that he had brought the above fact to the notice of the District Judge by putting in objections to above application of the respondent supported by his affidavit, but the learned District Judge, without any cogent ground and reasons disbelieved the plea taken in the written objections of the appellant and his (counsel's) affidavit and unlawfully dismissed the appeal on the ground of its having abated for non‑impleading the legal representatives of the deceased appellant within time. The learned counsel for Muhammad Sadiq, respondent, on the other hand, has contended that the impugned judgment and decree of the learned District Judge is quite lawful as the legal representatives of Raj Muhammad deceased‑appellant had failed to apply for bringing them on record within the period of 90 days from the date of death of the deceased‑appellant who had died on 25‑7‑1987. He has further contended that the appellants had failed to prove that they had made any application for impleading them as legal representatives of the deceased‑appellant previously within the period of limitation, with the result that their application dated 18‑2‑1988 shall be treated as an application for the purpose which was hopelessly time‑barred.

5. I have given my due consideration to the above contentions off the learned counsel for the parties and have also gone through the record of the case, after which I am of the opinion that the learned Judge ought to have believed the affidavit filed by the counsel for the appellants to the effect that he had made an application for impleading the legal representatives of the deceased‑appellant within time and that the said application had been misplaced by the concerned official due to his negligence and for reasons best known to him. The Advocate who had filed the said affidavit is an, Advocate of a considerable standing at the bar and there appears no apparent reason as to why he should have made a false solemn affirmation in his affidavit for the sake of the interest of‑his. client only especially when he had no personal interest in the outcome of the case before the District Judge. In my view, ordinarily when an Advocate solemnly affirms about a matter relating to the case in a Court of law in which he was or is engaged as counsel of the party to such case on the basis of his personal knowledge, he should be believed unless there appears some cogent ground for not doing so. In the present case, certain other facts and circumstances existing on the record have come to my notice which lend support to the truthfulness of the averments made in the written objections and affidavit filed by the counsel for the appellants. For instance, an application of the present appellants filed through their counsel for the deposit of the proclamation fee was misplaced and was not filed with the record of the case as would appear from the report of the Nazir of the Court, made on the application of the appellants dated 13‑9‑1987 filed before the District Judge alleging therein that the proclamation fee to the tune of Rs.38 was deposited in the Court on 4‑8‑1987 under Sr. No.141 but the application made for the purpose is not on the record of the case. The Nazir in his report has verified the deposit of the above amount of proclamation fee and as to the application on the basis of which the said fee was deposited, he has remarked that the concerned clerk be asked about it to whom it was sent. If the aforesaid application of the appellants could be misplaced by the official concerned, the possibility of their another application for impleading them as legal representatives of the deceased‑appellant in the case having been misplaced deliberately or by negligence of the concerned official is very much present and not ruled out altogether. In their above application dated 13‑9‑1987, the appellants had stated that they had deposited the proclamation fee in the appeal on 4‑8‑1987 but their application made for the purpose is missing from the record which, in other words, means that the present appellants had been pursuing the appeal and taking part in its proceedings as legal representatives of the deceased‑appellant at least from 13‑9‑1987, the date on which they made the complaint to the District Judge about their previous application dated 4‑8‑1987 having not been filed with the record of the case: Although there is nothing on the record to substantiate the allegation of the respondent Muhammad Sadiq that Raj Muhammad deceased appellant had died on 25‑7‑1987, yet even if the above allegation is presumed to be true, the act of filing the applications dated 4‑8‑1987 and 13‑9‑1987 mentioned above by the present appellants, would go to show that they, who are legal representatives of Raj Muhammad deceased‑appellant had substituted themselves in the appeal as the legal representatives of the deceased‑appellant much before the expiry of the period of limitation prescribed for impleading the legal representatives of a deceased plaintiff or appellant. The District Judge by accepting their applications and making necessary orders on them, had practically treated the present appellants as the legal representatives of deceased‑appellant and thus the appeal under consideration could not be dismissed on the ground of having abated by reason of non‑impleading the legal representatives of the deceased appellant. There is also another fact which is needed to be mentioned to show that the Court below was notified and was aware of the fact much before the application by the respondents was moved before him praying for the dismissal of appeal on the ground of its having abated as the legal representatives of the deceased‑appellant were not brought on record within the prescribed time, that the appellant had died and the present appellants are his legal representatives. Muhammad Sadiq respondent had filed an application before the District Judge on 12‑9‑1988 alleging therein that the present appellants who are heirs of the deceased‑appellants had been raising some contraction on the suit land thereby violating the interim injunction issued against their predecessor‑in‑interest for maintaining the status quo. On the above application, not only notice was issued to the present appellants to show cause why they should not be proceeded against for violation of the aforesaid interim injunction but the officer incharge Mangla Police Post was also directed to restrain them from raising any construction on the suit land. The present appellants had acknowledged the receipt of the above show‑cause notice as well as the order of the Court directed to the Officer Incharge Police Post, Mangla. Thus, when the appellants have been taking part in the proceedings of the appeal before the District Judge as the legal representatives of the deceased‑appellant, within the period of limitation prescribed for impleading legal representatives of the deceased‑appellant on record, their contention that they had made an application for bringing them on record as legal representatives of the deceased‑appellant within time, appears to be true especially when the same is supported by an affidavit of their counsel who is a senior member and an ex‑President of the District Bar, Mirpur. Once the names of the legal representatives of the deceased‑appellant were brought to the notice of the Court, it had become its duty to bring them on record as the legal representatives of the said appellant. For the reasons stated above, it is held that the appellants had informed the Court of their being the legal representatives of the deceased‑appellant and were actually pursuing the above case in that capacity much before the period of limitation fixed for bringing the legal representatives of any deceased party to the appeal on record, had expired and accordingly the judgment and decree of the District Judge dismissing the appeal on the ground of its having been abated, is set aside and the case is remanded back to him to decide it in accordance with law after bringing on record the appellants as legal representatives of the deceased‑appellant. There shall be no orders as to costs. A.A.‑349/H.C.A Case remanded.