1999 PLP 2336 (YLR)

BASHARAT AHMAD SHAIKH, J.

This appeal has been filed to challenge the order, dated 27th February, 1999 passed by the Assistant Registrar at Mirpur by which he rejected the application to bring on record legal representatives of Ghulam Rasool in Civil Appeal No.33 of 1998 titled Muhammad Ibrahim v. Custodian of Evacuee Property and others.

2. In the application for substituting the legal representatives of Ghulam Rasool it was mentioned that Ghulam Rasool, who was one of the respondents before the High Court, died on 26th February, 1996. The writ petition was dismissed and Ghulam Rasool was again impleaded as a respondent when petition for leave to appeal was filed in this Court although he had died during pendency of the writ petition in the High Court. ,Respondent Ghulam Rasool was represented by a counsel who continued to appear for him till decision of the writ petition and did not inform the Court that Ghulam Rasool had died. It is claimed by the appellant Muhammad Ibrahim that he did not come to know about the death of Ghulam Rasool and also was misled by the fact that the counsel continued to appear till the decision of the appeal. His case is that due to this reason Ghulam Rasool was impleaded as a respondent when petition for leave to appeal was filed in this Court. The attorney for Ghulatn Rasool engaged a counsel on behalf of Ghulam Rasool and the counsel started appearing for him in this Court till 27th December, 1998 when the learned counsel, Raja Hassan Akhtar, informed the Court that Ghulam Rasool had died on 26th February 1996. Therefore, application for substitution was filed. The Assistant Registrar has taken the view that mere fact that death of Ghulam Rasool was not known to Muhammad Ibrahim is no ground to condone the delay of two years and eight months.

3. By referring to the facts noted above, Raja Muhammad Siddique, vehemently contended in support of this appeal that clue to the peculiar circumstances of the case the delay in filing the application for substitution should have been condoned in the interest of justice by the Assistant Registrar. The learned counsel submitted that the delay may be condoned by the Court particularly in view of the fact that even the counsel kept on appearing for Ghulam Rasool after his death.

4. In our view the application moved on: behalf of Muhammad Ibrahim is misconceived. The application to bring record the legal representatives is only maintainable in respect of an appellant or a respondent but Ghulam Rasool was neither an appellant nor a respondent in this Court because admittedly he had passed away much before the institution of the petition for leave to appeal in this Court which means that in the appeal a dead person was impleaded as a respondent. A respondent is a living person and a dead person cannot be treated as a respondent. Therefore,' the application for substitution of the legal representatives was liable to be dismissed in any case, irrespective of the fact whether the application was barred by time or not. If a dead person is impleaded as a respondent it may be possible to implead his legal representatives but that will be a case of addition of new party and not of substitution. Since the application for substitution was not maintainable. this appeal also cannot bear any fruit.

5. It was alternatively submitted by Raja Muhammad Siddique that Ghulam Rasool is not a necessary party in the main appeal pending in this Court, which has been filed to challenge the judgment of the High Court and it does not suffer from any defect even in the absence of Ghulam Rasool or his legal representatives. It was explained by Raja Muhammad Siddique that evacuee land was allotted to appellant Muhammad Ibrahim and he was also granted proprietary rights on 6th February, 1982. On 23rd July, 1990 Ghulam Rasool filed a review petition before the Custodian of Evacuee Property in which he raised the grievance that the land in dispute was wrongly allotted to appellant Muhammad Ibrahim on 27th February, 1979. In this connection he pressed into service a decision of the Custodian of Evacuee Property which was made in the year 1970. The review petition was accepted by the learned Custodian who cancelled the proprietary rights as well as the allotment order passed in 1979. This order of the Custodian was challenged by Muhammad Ibrahim by filing a writ petition in the High Court. It was contended by Raja Muhammad Siddique that Ghulam Rasool had only succeeded in getting the proprietary rights and the allotment order standing in the name of the appellant cancelled but no right had accrued to him due to the order of the learned Custodian. In the writ petition order passed by the Custodian had been challenged and no right of Ghulam Rasool was challenged. Therefore, the learned counsel contended that Ghulam Rasool was not a necessary party. After arguing this point the learned counsel also moved an application that the point mentioned above may be taken into consideration.

6. The point raised by the learned counsel seems to have some weight but it has nothing to do with the present appeal which has been filed to challenge the order of Assistant Registrar by which he refused to bring on record the legal representatives of Ghulam Rasool. Subject to just exceptions the learned counsel may raise this point when the main appeal filed to challenge the judgment of the High Court is taken up for arguments. The present appeal has no force and is, therefore, dismissed. Parties may be informed. . H.B.T./430/SC(AJ&K) Appeal dismissed.