1976 PLP 12 (SCMR)

MUHAMMAD GUL, J.

This order deals with Civil Petitions Nos. 14 and 19 of 1974 which arise from the two pre‑emption suits brought against the petitioner (in both the petitions) by Ghulam Muhammad and his brother Fazal Muhammad (since deceased), in respect of two areas of land. Both the suits were dismissed by the trial Court. On appeal by respondent No. 1 and his deceased brother Fazal Muhammad the judgments of the trial Court were reversed by the learned District Judge, who passed decrees for possession of the land by pre‑emption in both the suits. Against the judgments of the learned District Judge, the petitioner filed two second appeals, namely, R. S. A. Nos. 51 and 52 of 1967 in the High Court, both of which were admitted to full hearing. During the pendency of the two second appeals in the High Court by the petitioner herein, Fazal Muhammad one of the pre‑emptors died on 16‑1‑1970. On. 16‑9‑1972 his brother, the surviving pre‑emptor moved two miscellaneous applications praying that Fazal Muhammad having died and his legal representatives not having been brought on the record within the prescribed period of limitation, both the appeals had abated in toto and therefore, the appeals must be consigned to the record room. On 21‑9‑1972, a learned Single Judge made the order as prayed. On 2‑10-1972 the petitioner herein filed a miscellaneous application in each appeal praying that the order of abatement be set aside, the delay in the impleadment of legal representatives of Fazal Muhammad deceased be condoned and the appeals be disposed of on merits. Alongwith the civil miscellaneous applications, formal application for condonation was also made in each case, The matter then came up for hearing before another learned Single Judge, who by the impugned order, on what: appears to be careful consideration of they material placed before him, came to the conclusion that there was no sufficient ground for the condonation of delay. Rather, there are clear indications of want of due diligence on the part of the petitioner in that he knew about the death of Fazal Muhammad. Not only that, in another litigation between the parties, application for impleading the legal representatives of Fazal Muhammad, was duly made. A plea raised on behalf of the petitioner that because of the amendment of Order XXII of the C. P. C. by the Law Reforms Ordinance, 1971, the abatement of two appeals is saved, was also repelled on the short ground that the Law Reforms Ordinance did not operate retrospectively so as to undo the effect of abatement happening prior to the coming in force of the Ordinance, as in the two instant cases. In support of the petitions, learned counsel for the petitioner contended that right of pre‑emption was a personal right as distinguished from heritable right and therefore does not survive a pre‑emptor who died during the pendency of his pre‑emption suit. The same argument was repelled, and in our opinion rightly so, by the learned Single Judge, because of a Full Bench judgment of the Lahore High Court in Allahdad and another v. Hukam Dad and others (P L D 1960 Lah. 900). It was next submitted that Fazal Muhammad sought to pre‑empt the two transactions in his own right pro rata, and therefore, his right and interest was severable from that of his brother, the co‑plaintiff with him and consequently, if at all, it was a case of partial and not total abatement. This argument is without substance. As pointed out in the judgment of the High Court the right of pre‑emption was claimed jointly by the two brothers. That being so, on the death of Fazal Muhammad and his legal representatives not having been impleaded within the time prescribed by law, each appeal abated in toto. The two petitions are accordingly dismissed. Petitions dismissed.