1996 PLP 1337 (CLC)

When within the time limited by law no application is made or intimation is given" under sub‑rule (1)..." (Underlining is my own), It is thus evident. that except the addition of underlined portion i.e., or intimation is given, there is no other change in this part. This difference clearly shows that in the old law, there was procedure of making application while in the amended sub‑rule, not only an application can be moved but an intimation can also be given to the Court about the death of a deceased defendant. But the second part of sub‑rule (3) has substantial change in it. Prior to the amendment this part was limited to the words "the suit shall abate as against the deceased defendant but after the amendment these underlined words were replaced by the following words: "The Court may proceed with the suit and any order made or Judgment pronounced in suit shall notwithstanding the death of such defendant have the same force and effects as if it had been pronounced before the death took place. " (Underlining is my own). Thus, the second part of the said sub‑rule got several fundamental and the most important changes. All these changes in Rule 4 of Order XXII, C.P.C. as discussed in the above line can be summarised as under: "(i) Prior to the Law Reforms Ordinance, 1972 moving an application on the death of deceased for bringing L.Rs. on record was mandatory on account of the word 'shall' used in the second part of sub‑rule (3) of Rule 4, but the use of word 'may' in place of 'shall' after the said amendment made it fully clear that moving an application for the said purpose did not remain mandatory and only intimation can be treated sufficient. (ii) Prior to the said amendment if no application was moved within the time limited by law the consequences of such failure were alarming i.e., the suit had to abate against the defendant. But, after the amendment, these alarming consequences were brought to an end. " But the question arises as to who has to make an application for bringing the L.Rs. on record. The rule i.e. Rule 4 of Order XXII, C.P.C. by itself was silent prior to the amendment and is also silent even after the amendment on this point. However, it can be derived from sub‑rule (1) of the said rule 4 that intimation about the death of a deceased defendant can be given by a person nominated by the deceased under Rule 13, Order VIII, C.P.C. But it does not mean that the said nominated person is bound to make an application for the said person because his role of nominated person appears to be limited to an intimation.

9. So far as the contentions advanced by Mr. Saeed A. Shaikh is concerned, I have no hesitation to say that it has been and it must be the policy of the Courts to stand by the ratio decidendi and not to disturb a settled point. This policy is termed as the doctrine of rule of stare decisis. I have also no hesitation to say that policy embodied in this doctrine promotes certainty, stability and predictability of the law. But at the same time, I have also no hesitation to say that neither this principle of stare decisis is inflexible nor it comes into play if it violates the letter and spirit of statutory provision or falls within the clutches of obiter dicta. This principle must be applied after discovering the purpose of the statutes and the changes/amendments brought in those statutes. This principle cannot be made applicable where it is erroneous or patently unreasonable besides being flexible too. In support of the flexibleness of this rule I need not to burden this order with the glimpses of different paras. from different judgments of the Hon'ble Supreme Court except to refer certain .cases such as State v. Dosso (PLD 1958 SC (Pak.) 533), Miss. Asma Jillani v. The Government of Punjab and another (PLD 1972 SC 139), State v. Zia‑ur Rehman (PLD 1973 SC 49), Begum Nusrat Bhutto v. Chief of Army Staff and Federation of Pakistan (PLD 1977 SC 657). It can be said with certainty that principle of stare decisis was not followed when these judgments were pronounced by the Hon'ble Supreme Court. If this principle had not been flexible the Hon'ble Chief Justice of Pakistan Syed Sajjad Ali Shah, J. would not have stated in a case reported as Mian Muhammad Nawaz Sharif v. President of Pakistan and others (PLD 1993 SC 473) that:‑‑ ...In the present case departure is made and same yardstick of evaluation of material is not applied. Seemingly it so appears that two Prime Ministers from Sindh were sacrificed at the altar of Article 58(2)(b) of the Constitution but when turn of Prime Minister from Punjab came the tables were turned. Indisputably right at the very outset of the precedings, indications were given that decision of the Court would be such which would please the nation. It remains to be seen whether what would please the nation, would be strictly according to law or not. In my humble opinion decision of the Court should be strictly‑ in accordance with law and not to please the nation. What may please the nation may turn out to be against the letter and spirit of the law and the Constitution. (Rel. page

787. The observations were given by him as a member of the Bench comprising of 11 Judges when Mr. Justice Nasim Hasan Shah was the Chief Justice of the Supreme Court).

10. Although policy of the Courts to stand by the ratio decidendi, as discussed above, is not inflexible yet the subordinate Court or the lower forums have no right to use this policy to get rid of the principles laid down by the superior Courts under the pretext of inflexibleness of this policy shown by the Hon'ble Supreme Court because such an attitude would, undoubtedly, shatter the foundation of judicial system. The crown of inflexibility appears splendorous only on the hands of higher or the highest forums of the benches of the superior Courts. On the basis of this proposition this Single Bench would be the last one to ignore the observations made in two D.B.'s. decision i.e., in the cases of Bibi Khudeja and Saifuddin (supra) referred to above in para. 7 unless the case of L.Rs. of the d4Zceased‑defendant represented by Mr. Muhammad Farogh Naseem falls within the clutches of such jurisprudential truths which put the rule of binding precedent within exceptions because exceptions destroy the binding force of a precedent and the Courts may refuse to follow any such precedent. ‑According to the established principles of jurisprudence, a judgment of any higher forum may not be treated a precedent for other Courts if‑‑ (i) the precedent is based on abrogated decisions i.e., when a judgment is overruled by a higher Court; (ii) the .precedent was given in ignorance of a statutory provision; (iii) the precedent is inconsistent with earlier decisions of higher. (iv) Precedent is obiter dictum i.e., an incidental opinion expressed by a (v) the precedent passed sub silentio or not fully argued on the point altingwith the connected or relevant points; (vi) the precedent is distinguishable with reference to the facts of the case in hand; (vii) the precedent is inconsistent with earlier decisions of the same rank. Similarly there can be so many other exceptions where a judgment o: any higher forum may not be treated a precedent for the lower forum.

11. It is necessary to point out that according to the general rule, no proceedings can be held against a dead person but Rule

4. Order XXII, as amended by the Law Reforms Ordinance 1972, appears to be an exception subject to a condition which requires every Court to wait for an application to be moved by any of the parties of the suit or receives an intimation of the death of a defendant from a person nominated by the deceased defendant for bringing the legal representative on record within the time limited by law, which is 90 days from the death of a deceased according to Article 177 of the Limitation Act. If no such application is made within that period, the law permits the Court to proceed with the suit notwithstanding the death of a defendant, instead of abating the suit against the deceased defendant as, was mandatory prior to the Law Reforms Ordinance, 1972. If this condition is not fulfilled then any adverse order passed by the Court before the expiry of 90 days, would be void and of no legal effect. In the light of this legal position I am of the view that an apokcation under sub‑rule (3) of Rule 4, Order XXII, C.P.C. is not a formality as urged by Mr. Farogh Naseem, the‑learned counsel for the L.Rs. of the dece4sed, because if it had been so then there was no need of keeping the words "within the time limited by law" possessed by the old law alive in the amended sub‑rule (3) by the Law Reforms Ordinance, 1972. Keeping Article 177 of the Limitation Act intact even after the amendment in the amended sub‑rule (3) does have some object and 1 am of the view that the said object is not to pass any adverse order against the deceased defendant before the expiry of 90 days if no application was moved by any of the parties to bring L.Rs. on record. Contention of Mr. Muhammad Farogh Naseetn that such an application is a formality, could not be accepted by me because it is a settled principle that if the words or sentences of any provision in the old provision of law are kept alive in its amended f4bn too, then they must be regarded as in pari materia and the previous judicial decision in respect of these words and sentences would remain the same in the cases of the amended provision but with reference to the context. On the basis of this proposition it can be said with certainty that keeping the period of limitation unchanged and uneffected in the amended form of sub‑rule (3) of Rule 4 can never be treated meaningless or formality.

12. Similarly the contention raised by Mr. Saeed A. Shaikh, the learned counsel for the plaintiff, that failure of legal representative of deceased defendant to apply within the time prescribed by law would debar them for taking part in the proceedings does not appear to be correct in the present case if judged on the anvil of exceptions or seen through the transparent glasses of facts particularly in the light of sub‑rule (4) of the said Rule 4 of Order XXII, C.P.C. It can be said with certainty that if sub‑rule (3) is construed in the light of rays reflected by the said sub‑rule (4) then true intention of the amendment, now clouded by doubts due to different judgments, can be easily ascertained. This point can be explained with the help of following few lines. If any defendant. fails to file written statement, it does not debar him to cross‑examine the plaintiff or his witnesses. Such defendant can also argue the matter and contest the suit at the time of every hearing till its final disposal. If he is aggrieved by any order of the Court or the final judgment then nothing debars him to file an appeal, revision or the petition, as the case may be and permitted by law. Therefore, when any such defendant expires, before or after the suit is finally disposed of, then his legal representative would have the same rights neither less or more, as the deceased had prior to his death. For example if the deceased had not filed written statement within time, and the Court had also debarred him from filing the written statement by rejecting his application for the said purpose, then his/her L.Rs. would also be debarred to file written statement unless the decision of the Court is reversed on the basis of some application, appeal, revision or petition by any higher forum. This is whole what has been embodied in sub‑rule (3) read with sub‑rule‑(4) of Rule 4 of Order XXII, C.P.C. as can be viewed by a juridical eye or reflected by jurisprudential mirror. Even the microscopical study of Rule 4 leaves no doubt to believe that there is nothing in any of its sub‑rules, even a single word, Which could give the slightest impression or from which it could be deduced that failure of legal representative of deceased to apply within prescribed period would debar them from taking part in the proceedings. Perhaps this point was not fully argued by the learned Advocates in the cases of Bibi Khudeja and Saifuddin (supra). Hence Mr. Muhammad Farogh Naseem stressed that each of.the two D.B.'s. decision was given per incurium. 13: This contention of the learned Advocate to treat the two D.B.'s. decision, per incurium may have force if these judgments have been given in ignorance of a statute or other binding authority or fall within the clutches of the maxim "cessante ratione legis cessat lex ipso" (when the ,reason for any particular law ceases, so does the law itself). This maxim cannot be applied to statute law but its application to judge any observation, made in any judgment is not barred. It would be a matter of advantage and interest if, in support of this proposition, I reproduce few lines from a book titled as "The Discipline of Law" wherein it was stated by Lord Denning that: "I was invited to deliver the Romances Lecture. It was in the Sheldonian Theatre on 21st May, 1959. I gave it the title. From Precedent to Precedent. My theme was that the House of Lords should not be bound by a previous precedent if it should be found to be wrong. The common law will cease to grow. Like a coral reef, it will become a structure of fossils. If it is to avoid this fate, the law cannot afford to be a 'lawless science' but should be a science of law. Just as the scientist seeks for truth, so the lawyer should ‑ seek for justice. Just as the scientist takes his . instances and from them builds up his general propositions, so the lawyer should take his precedents from them builds up his general principle. Just as the propositions of the scientist fall to be modified when shown not to fit all instances, or even discarded when shown to be in error, so the principles of the lawyer should be modified when found to be unsuited to the times or discarded when found to work injustice. The law will fall into disrepute; and if that happens the stability of the country will be shaken. The law must be certain. Yes, as certain as may be. But it must be just too." Although Lord Denning's views appear to be for the lawyers only yet I am of the view that not only the Judges of the superior Courts can be included in them but they are more expected to think on the same lines to save the laws of the country from falling into disrepute and to provide strength to the stability of the country. This object can be gained only when the lawyers and 'the Judges have true love for their country and have no fear to say what they consider to be right and correct and are not afraid 'of the criticism of the advocates, lawyers, common people or the superiors. Such conduct may be appreciated by the lawyer although not by the Advocate because in my view advocates may cling to the verbal meanings of the words embodied in any provision of law only to fight for the interests of their clients while the lawyers would embrace the conventional and real spirit of the same provision of law in the interest of justice. Although Lord Denning has used the word "lawyer" for the Advocates too yet I think that there is difference between an Advocate and a lawyer as stated above. In this regard, it may not be also out of place to reproduce the following few lines from a case reported as Pir Bakhsh v. The Chairman, Allotment Committee (PLD 1987 SC 145) which reads as follows: "A solemn decision upon a point of law arising in any' given case becomes an authority in a like case because it is the highest evidence which we can have of the law applicable to the subject, and the Judges are bound to follow` that decision so long as it stands unreversed unless it can be shown that the law was misunderstood or misapplied in that particular case. " Keeping all what has been radiated in the above lines, I would like to consider the contentions of Mr. Muhammad Farogh Naseem regarding the two D.B. decisions in the forthcoming paragraphs.

14. The learned counsel for the L.Rs. has assailed the two D.B.'s. decisions by urging that the judgment in the case of Saifuddin (1995 CLC 1348) by itself lacks 'reasoning which is the essential feature of a precedent to be followed. It was also contended by the learned counsel that the learned D.B. in that case had decided an application under sub‑rule (2) of Rule 3, Order XXII, C.P.C. which related to a procedure in case of death of one of several plaintiffs or of sole plaintiff while the judgment (1992 MLD 490) followed by the learned D. B. was related to interpretation of sub‑rule (3) of Rule 4, Order XXII, Hence the said judgment was not applicable in the case of application moved by the L.Rs. of the deceased defendant in the suit in hand. After going through these factual aspects I am fully convinced that the judgment in the case of Saifuddin (supra) is not applicable in the case in hand on account of distinguishable facts as pointed out by the learned counsel. Besides it my attention was also caught by the following observations made in that judgment: "One of the legal heirs Muhammad is mentioned in the list of L.Rs. filed alongwith the plaint to be the person to inform the Court in case of death of appellant, who was plaintiff in the suit and he having failed to do so within 90 days as above, the said legal representatives cannot be brought on record as it is barred under law of limitation. Sub‑rule (2) of Rule 3, Order XXII, C.P.C. provides as under:‑‑ "(2) Where within the time allowed by law no application is made or intimation is given under sub‑rule (1) the Court may proceed with the suit and any order made or judgment pronounced in such suit shall, notwithstanding the death of such plaintiff have the same force and effect as if it had been made or pronounced before the death took place'." (Underlining is my own). It is notable that this sub‑rule (2) was also substituted in C.P.C. by Law Reforms Ordinance (XII), 1972. The previous sub‑rule (2) was as follows:‑‑ "Where within the time limited by law no application is made under sub‑rule (1), the suit shall abate so far as the deceased plaintiff is concerned and on the application of the defendant the Court may award to him the cost which he may have incurred in defending the suit, to be recovered from the estate of deceased plaintiff. " I think that the underlined observations made by the learned D.B. of this Court in the para. quoted above from the case of Saifuddin (supra) are "obiter dicta" because sub‑rule (2), Rule 3, Order XXII, C.P.C. does not provide any penal action to debar the L.Rs. from contesting the suit. It only permits the Court to proceed with the suit notwithstanding the death of the plaintiff if no application was made or intimation given within the time allowed by law. The remaining part of this sub‑rule (2) reflects, the consequences that any order made or judgment pronounced in absence of the application or the intimation shall have the same force and effect as if it had ‑ been made or pronounced before the death took place. Thus, there is nothing to show that L.Rs. are barred from taking part in the proceedings.

15. So far as the second judgment (1992 MLD 490) is concerned it undoubtedly supports the contention. of the learned counsel for the plaintiff. This judgment was, also assailed by Mr. Muhammad Farogh Naseem on the strength of several jurisprudential principles which are the foundation of our inherited judicial system introduced by our old masters. It may be of advantage to mention brief facts of that case which read as follows. The Senior Civil Judge of Tando Muhammad Khan had allowed the L.Rs. of two defendants (defendants Nos. l and 11) to be impleaded as parties but declined to bring L.Rs. of other defendants (defendant Nos.2 to 9) on record. Revision against the said order of the learned Senior Civil Judge was filed before the learned Additional District Judge, Hyderabad who allowed same and directed that the L.Rs. of the deceased defendant be joined as party. Hence order of the learned A.D.J. was challenged before this High Court which was decided by the Hon'ble D.B. who observed that:, "It would thus be seen that according to Rule 4, as it originality stood, the burden was on the plaintiff to imnlead the legal representatives of the deceased defendant as parties to the suit, failing which, the proceedings in the suit were to abate. " The underlined words appear to be obiter dictum because the old law was silent on this point. It was further observed by the learned D.B. that: "However, after the said amendment by the Law Reforms Ordinance the position has materially altered because although, the plaintiff can proceed with the suit without joining the legal representatives of the deceased defendant, an option has been left with the legal representatives to join the suit proceedings and to make any, defence appropriate to their character as legal representatives of the deceased defendant. The aforestated position has been made clear by sub‑rules (2) and (3), the latter being substituted for the original sub‑rule (3). Sub rule (4) was also added through the said amendment though we are not concerned at present the same. " The underlined words leave no doubt that sub‑rule (4) was not taken into consideration. I am sure that if sub‑rule had also been taken into consideration alongwith sub‑rule (3) the observations could have been different. The observations of the learned D.B. then proceed as follows: "However, the burden has now shifted to the legal representatives of the deceased defendant because unless they are impleaded by the Court as parties to the proceedings they cannot participate in the proceedings as the deceased defendant could do before his death. However, such an application must be filed by them within the period of limitation as prescribed by the law. In case of failure of the legal representatives of the deceased defendant to apply within the time prescribed by the law, they would be debarred bar the law, from taking part in the Proceedings and the suit." (Underlining is my own). The underlined sentences, in this judgment also appear as obiter dicta as they lack reasoning and hence they do not possess the characteristics of precedent as discussed in para. 13 above. Besides this reality the observations do not appear to be general in their nature because if they had been so the learned D.B. would not have used the following words: "The learned Additional District Judge therefore was clearly in error while relying upon the said cases which were not attracted to the facts of the present case and were distinguishable. " The words "attracted to the facts of the present case" leave no doubt for anyone that if facts of a case are distinguishable, then observations made in that case shall not be made applicable in any other case. It may be advantageous to point out that prior to the amendments, sub rule (3) of Rule 4 was in the interest of defendant but after the amendments, if sub‑rule (3) of 'rule 4 is compared with sub‑rule (2) of Rule 3 (both of Order XXII, C.P.C.) then there remains no doubt that the plaintiffs and the defendants have been brought on the same footing. It is also important to point out that observations made in the case of Bibi Khudeja revolve only around the aspect of moving application for bringing L.Rs. on record. The aspects of "giving intimation", similarly of the amended sub‑rule (3) of Rule 4 with sub‑rule (2) of Rule 3 and effects of newly added sub‑rule (4) in Rule 4 of Order XXII, C.P.C. on the amended sub‑rule (3) have not been discussed in the two D.Bs.' decision. Hence it can be said with certainty that they were passed sub silentio which put them within exceptions and thus cannot be treated as precedents for each and every case. (Note) The. words "the said case" used in the above‑quoted para. from the D.Bs'. decision include cases of Mst. Sardar Begum and another reported in PLD 1975 Lahore 153 (S.B). and the case reported as Mst. Hajiani Fatima Bai v. Mst. Meena in PLD 1988 Karachi 65 which had been relied upon by the learned Additional District Judge. In the light of these prudential realities I have no doubt in my mind that none of the two D.Bs.' decision is applicable to the present case because the facts of the case in hand are distinguishable from the facts of the cases decided by the Hon'ble D.Bs.

17. On the basis of propositions as discussed in the preceding paragraphs it is necessary to find out as to whether the facts of the suit in hand and the connected suit fall within the ambit of any exception even if the two D.Bs'. decisions are treated to be precedents. It is an admitted reality that in the present suit, list of L.Rs. was annexed alongwith the written statement on 31‑3‑1979 which contained names of 3 major and 8 minor persons. Same is the position in the connected suit bearing No.731 of 1977 in which the list of L.Rs. was submitted on the same date which consisted of names of two majors and 7 minor persons. Order‑sheet dated 18‑2‑1992 in the suit in hated is also very relevant. It contains the words "same order as in Suit No.731 of 1977". Hence it was necessary to go through the order‑sheet dated 18‑2‑1992 in Suit No.731 of 1977 too. It reads as under: "Mr. Salahuddin says that some of the defendants are minors and it is necessary to make an application for appointment of guardian ad litem and requests for adjournment to enable him to make such application. Adjourned to a date in office." These factual realities on record put not only the present suit but also the connected Suit No.731 of 1977 within the ambit of exceptions. The reasons for holding so can be summarised as under: (i) In case the list of L.Rs. has been made the part of any suit alongwith the plaint or the written statement then it would be a mere irregularity if no application had been moved for the said purpose by any of the parties within the period prescribed by law or if the application was moved but no order was passed on that application or if the order was passed on the application but the title of the plaint or the memo. of appeal or the application or the petition, as the case may be, was not amended. The presence of such irregularities neither affected the merits of the suit nor the jurisdiction of the Court. I am also of the view that moving an application in the old law under sub‑rule (3) was necessary but in the amended sub‑rule it is not necessary because only intimation be given under sub‑rule (i). If the Court has been intimated by any of the parties about the death of a defendant then there will be no need of moving an application. In the present suit as well as in the connected suit, the Court had been intimated about the death of the defendants on 2‑9‑1991, as is evident from the order‑sheet, and late Mr. Salahuddin, Advocate had also informed the Court on 18‑2‑1992 as stated earlier. Hence it was not necessary to move an application particularly when the list of L.Rs. was on the record. (ii) It was the duty of the Court to constitute guardian ad litem under Order 32, Rule 3, C.P.C. by an order after receiving such an intimation on 18‑2‑1992 because the Court could not proceed against the minors unless it had appointed the guardian ad litem. The judgments of the learned D.Bs. are silent on this important aspect. If all the L.Rs. may be majors or minors, are debarred from taking part in the proceedings in case no application is moved under the amended sub‑rule (3), although intimation has been .given to the Court, then its consequences are obvious. At the time of execution of decree passed by the Court, the minors would be in the hottest water. The justice may be blind but can never be cruel to punish the innocent souls of minors for their innocent crimes of being minors. I am sure that if the learned D.Bs. of this Court had taken into consideration the important aspect of intimation which was introduced in the amended sub‑rule (3) then their observations would not have been limited to the extent of making an application. Both the D.Bs.' decisions are totally silent on the point. of intimation, its interpretation and the consequences. On the basis of these reasons it can be said with certainty that the observations given by the learned D.Bs. could be limited only to the facts of these cases which were in their hands. Moreover, necessity of moving such an application would have arisen only when the list of L.Rs. had not been annexed with the plaint or was missing from the record of the suit. In all such cases where list of L.Rs. is already on record, then moving no application would be nothing but merely an irregularity which can be met even at the appellate stage too. Support, in this regard, can be sought from the principles laid down in a number of authorities namely Gopal Das v. Mulchand (AIR 1926 Lah. 607) Ram Sarup Singh v. Mohan Singh (AIR 1939 All. 672), Naranlal Jehalal Thakkar v. Shivprasad Achratlal Jani (AIR 1940 Born. 259), Sankru Mahto v. Bhoja Mahate (AIR 1936 Pat. 548), Shooram v. Atmaram Raghoji Patil (AIR 1943 Nag. 13), Khuda Bakhsh v. Abdul Jabbar and others (PLD 1952 Pesh. 32) and Arbab Said v. Arbab Sarwar Khan (PLD 1951 Pesh. 20). On account of these reasons, the present suit undoubtedly falls within exceptions because facts of the case in hand are distinguishable from the facts of the cases decided by the two D.Bs. of this Court which were referred to and relied upon by Mr. Saeed A. Shaikh.

18. The amendments brought in Rule 4, Order XXII, C.P.C. by Law Reforms Ordinance (XII 'of 1972) also require to be examined as to who is responsible to bring the L.Rs. on record particularly when all the sub‑rules of said rule 4 are silent on this point. In the Old law i.e., before the amendment, the suit had to abate against the deceased defendant if no application was made within the time limited by law. In other words, only the plaintiff had to suffer on account of abatement of the suit if no one moved any application to bring the L.Rs. of a deceased defendant on record. Hence, in the old law, apparently, responsibility was on the shoulders of the plaintiff to make an application under sub‑rule (1) of Rule 4, Order XXII, C.P.C. if the plaintiff was interested to protect his claim even after the death of any defendant. Support can be sought from a case reported as Kundanbai v. Jainarayan (AIR 1951 Nag. 270). However, it was his discretion not to make such an application for the said purpose if he was not interested to save his case from being abated. After the amendments the consequences as used to occur previously in accordance to the old law, have been nullified by the amended sub‑rule (3) of Rule 4, Order XXII, C.P.C. But the question of responsibility to bring the L.Rs. on record has again been kept silent even after the amendments. According to my point of view judicial morality and principles of natural justice put this responsibility not only on the shoulders of the controvertists but also upon the Courts. I would like to elaborate this point further with the help of following few lines. If the plaintiff avoids to make any such application with his intention to get ex parte order by keeping the L.Rs. of any deceased defendant in darkness then such an order can be set aside at any stage when the L.Rs. come to know about the order and move an application for the said purpose. As setting aside the said order would not be in the interests of the plaintiff, therefore, the plaintiff can be treated responsible for bringing the L.Rs. of a deceased defendant on record if they want to contest the suit with clean hands on merits and not on technicalities. Similarly if L:Rs. of any deceased defendant deliberately avoid to contest any suit, the suit shall not abate, as it used to be in the old law, but has to be proceeded against the deceased defendant with all its consequences against the L.Rs. according to the amended provision of law. Hence the L.Rs. of the defendant should not avoid to make an application for impleading them as necessary parties after the death of their predecessor. But those L. Rs. will take up the case from that stage at which the deceased defendant had left it before death and they will only rely on the same cause of action which had been originally brought by the deceased. Same principle would be applicable in the cases where any plaintiff has expired. If the L.Rs. of any deceased are.minors then responsibility is on the Court to protect their rights. Under Order 32, Rule 3, the Courts are duty bound to appoint someone as guardian ad litem by passing such an order for the minor defendants whenever any minor is made a party in a suit. On the basis of same provision of law I am of the view that the Courts are also bound to appoint a guardian ad litem when any defendant expires and leaves behind him/her any minor legal heir or legal representative. The reason is obvious. When the Courts are .responsible to appoint guardian ad litem for the minors who are made defendant in any suit when the suit is instituted then the Courts are much more responsible to perform this duty of protecting the rights of such minor L.Rs. who have lost their predecessor particularly in the present material world where everyone is interested in his/her own interests and none is ready to look after the interests of innocent minors. I am also of the view that the Court should itself send notice under Order 7, Rule 26 in case the plaintiff dies, and under Order 8, Rule 13, in case a defendant expires during the pendency of a case as and when an intimation about the death of any party is received by the Court and the list of L.Rs. is not available on the record. If the list of L.Rs. is available on the record then the Court can itself implead the persons named in the list. Same procedure may be adopted at the stage of appeal on the basis of Rule 11, Order 22, C.P.C.

19. If the collective result of this discussion is given due consideration then the Courts appear to be more responsible than the parties of the suit to perform this duty by directing the concerned party to provide list of L.Rs., if the same is not on the record, and ask the other party or both the parties to amend the pleadings to avoid any expected complications in future. My reasoning, for holding so, is on account of this established legal principle, which is also the foundation of justice in Islam, that Law favours adjudication on merits after giving full opportunities to the controvertists instead of knocking out any of the parties on the strength of procedural technicalities which must be adopted only for the advancement of cause of justice and not for the purpose of entrapping the litigants to a blind alley. In support of this construction strength can be sought from a case reported as Sh. Ghulam Muhammad and another v. The Bank of Bahawalpur (1971 SCMR 148) wherein the Hon'ble Supreme Court even treated an oral request quite sufficient for Court to condone delay if no formal application under section 5 of Limitation Act was moved for condonation of delay for the purpose of bringing the L.Rs. on record and if the circumstances so permitted. In that case, the defendant had died but his heirs had attempted to conceal his death. The plaintiff succeeded to get the names of L.Rs. after about 9 months i.e. beyond the period of limitation i.e. 90 days only. Hence the application for setting aside the abatement and bringing the legal representatives on the record was granted by the High Court. This order was challenged in Letters Patent Appeal before the High Court and then in a Petition for Special Leave to Appeal before the Supreme Court but the said order was not disturbed by any of the Courts. Although the said case relates to a period prior to the Law Reforms, 1972 yet there appears no reason not to apply the same proposition after the old provision of abatement was nullified by substituting an amended provision through Law Reforms Ordinance, 1972. If the observations made in the two D.Bs.' decisions are judged on the anvil of principles laid down in the judgment of the Hon'ble Supreme Court quoted in this para. then inconsistency of the two D.Bs.' decisions with the decision of the Supreme Court does not remain hidden. By embracing the essence of the Supreme Court judgment in my mind I have no hesitation to view that rigidity which was existing in the old provision prior to the amendment has been totally replaced by flexibility in the amended provision of sub‑rule (3) of Rule 4, Order XXII, C.P.C. Therefore, any sternness in refusing to bring on record the L.Rs. of a deceased defendant shall not only create complication but can also construct a foundation of injustice against the L.Rs. by keeping them away from defending their rights. On the basis of this proposition deduced from the judgment of our Hon'ble Supreme Court it can be said with certainty that L.Rs. of a deceased defendant cannot be debarred from taking part in the proceedings to defend the suit to protect their rights if the list of L.Rs. is already on record. And if no G such list is on record, even then they cannot be debarred if they have not moved any application but only intimated the Court about the death of their predecessor. If the L.Rs. prefer to move an application after the expiry of the time limited by law, instead of moving the same within the prescribed time, deliberately and intentionally, unless otherwise proved, then the order made or judgment pronounced after the expiry of time allowed by law for the said G purpose, shall not be reversed and it would have the same force and effect as if it had been made or pronounced before the defendant expired. This is the only possible logic for keeping Article 177 of the Limitation Act alive even after the amendment in sub‑rule (3) of Rule 4, Order XXII, C.P.C. but it does not amount to debar the L.Rs. to contest the suit because the amendments in the said provision of law i.e. Rule 4 do not give the slightest impression of this nature.

20. It is an established principle that at the time of interpreting any new provision. of law, the purpose of introducing such law must not be ignored by H the Court. I have also no hesitation to say that if interpretation of any provision of law, in an Islamic country, is found to be in conflict with the Islamic principle of justice, then such interpretation would also fall within the ambit of exceptions particularly when Islam is claimed to be the basis of that country. No such interpretation would be treated as precedent to be followed in each and every case distinctively after the Enforcement of Shariat Act, 1991 (PLD 1991 Central Statutes 373). Similarly this is my considered opinion that if the purpose of introducing any new law or bringing any amendment in any provision of law negatively affects the fundamental rights of human beings as guaranteed by the Constitution of that country or by the natural principles of justice then the Court may not embrace any such interpretation as a precedent by clinging with the threads (not ropes) of brittle rigidities to put a foundation of injustice on technicalities. I have no doubt in my mind that the forts of interpretation built with the brittle bricks of verbal concepts of any provision of law would have to perish today or tomorrow because they are now being continuously bombarded with the mighty balls of conventional sense of canons thrown from the cannons manufactured with the material of natural and Islamic principles. By keeping the force of all these propositions alongwith the strength of exceptions with reference to the precedents if the applications in hand made on behalf of the L.Rs.' for bringing them on record and for condonation of delay are dismissed then consequences of such dismissal are obvious i.e.: (i) The suit would proceed ex parte against the L.Rs. of the deceased defendant, including the minors, if any; (ii) decree would be passed against a dead person without giving any chance to his L.Rs. to defend the suit; (iii) and the decree would be executable against the L.Rs. who were condemned by debarring them to take part in the proceeding. I have no hesitation to say that justice done on the basis of such technicalities may be termed as "Justice on technicalities" but not a "justice on merits or justice on the principles of natural or Islamic principle of justice".

21. Record of this suit also forces me to allow these applications on the basis of following undisputed realities: (i) When this suit as well as Suit No.731 of 1977 were filed, most of the L.Rs. were minors; (ii) on 18‑2‑1992 the Court had been intimated by late Mr. Salahuddin, Advocate that some of the L.Rs. were still minors after the expiry of the deceased but no steps were taken by the Court to appoint guardian ad litem for them and the learned Advocate for the plaintiff also remained silent and unmoved in spite of that information or intimation. (iii) objections, in this connection, were taken by Mr. Saeed A. Shaikh for the first time on/about 19‑10‑1995 when he was asked to produce evidence. On account of these undeniable facts, it can be said with certainty that the plaintiff as well as the Court were also responsible for keeping the issue of minor L.Rs. untouched in the past and when the L.Rs. came forward to defend their rights, the learned Advocate for the plaintiff raised objection that they be debarred from taking part in the proceedings which objection does not appear to be convincing or justified. Hence I feel no hesitation if I condon the delay in circumstances of the case instead of taking into consideration the objections raised by the learned counsel for the plaintiff at this belated stage particularly when the list of L.Rs. had been already on record with the plaint since 31‑3‑1979. In view of what has been stated ahove, C.M.As. Nos.5510 of 1995 and 5511 of 1995 are allowed with the following directions: (i) The learned counsel for the L.Rs. of the deceased defendant is required to provide full informations in writing, supported with an affidavit, about the details of minor L.Rs., if any, as welf as the details of major L.Rs., alongwith their L.Rs. too, within two weeks; (ii) one copy of these details be provided to the learned counsel for the plaintiff who is required to amend the title of suit within two weeks after receiving the said copy; (iii) office is required to fix this matter for evidence on April 10, 1996 for evidence notwithstanding the compliance of abovementioned directions. The suit may not be adjourned on that date or for more than seven days after the adjournment unless specifically ordered otherwise by this Court. With these directions both the applications stand disposed of.

21. Before parting with this order I consider it my duty to express my feelings that no doubt Mr. Muhammad Farogh Naseem a young Barrister‑at Law, has taken great pain by referring several important books of worth reading on jurisprudence including (i) A Treatise on the Constitutional Limitations by Thomas M. Cooley; (ii) Jurisprudence and Legal Theory by Prof. P.S. Atchuthen Pillai; (iii) Jurisprudence and Legal Theory by Prof. C.C. Venkata Sabbarao; (iv) .Glimpses of Jurisprudence by R.D. Yadav; (v) Smith and Keenan's English Law; (vi) Jurisprudence by R.W.M. Dias, and (vii) The Discipline of Law written by Lord Denning etc. to prove the case of Bibi Khudeja (1992 MLD 490) and Saifuddin (1995 CLC 1398) to be per incuriam but he could refer better authoritative views on the same subject of exceptions from Islamic Jurisprudence by keeping in view the real concepts of "Taqleed" and "Ijtehad" 'and the difference between these two terms instead of totally depending upon the views of those English divines, who are considered to be the only jurists, or their followers who are basically compilers but are self‑claimed jurists. In this regard the judgments reported as Mst. Khurshid Bibi v. Muhammad Amin (PLD 1967 SC 97) and Captain Muhammad Aslam v. Mst. Rubi Akhtar reported in 1996 CLC 1 provide guidelines for the learned Advocates if they are interested to follow the principles of Islamic Jurisprudence. It would be a great service for Islam if the learned Advocates, born and brought up in this free Muslim State, start working on Islamic Principles of Justice. I have no doubt in my mind that the Muslims would never get rid of from the yoke of inferiority complex if they are inclined to be wined and dined with the knowledge of English divines and their compilers. Lord Denning is, however, among the exceptions. A. A./K‑2/K Application accepted.