1987 PLP 2736 (MLD)

MUHAMMAD ASADULLAH, J.--This Letters Patent Appeal has been filed against the order dated 28-11-1966 of Mr. Justice Karam Elahi Chauhan (as he then was) through which he dismissed Writ Petition No.1517/R/63 filed by the petitioners. They were allotted land measuring 12 acres and 4 kanals in village Dawaba, Tehsil and District Muzaffargarh by the Rehabilitation Commissioner on 19-6-1957 on the recommendation of the Garden Allotment Committee. The appellants had their claims/ Units in Sargodha and the allotment was made on the condition that they will get the same transferred to Muzaffargarh and get the same adjusted within one month from. 19-6-1957. The allotment was cancelled vide order dated 9-6-1958 (not on file) obviously because the said claims/Units had not been got transferred from Sargodha to Muzaffargarh. The appellants filed a review petition which was accepted by the learned Rehabilitation Commissioner, West Pakistan, vide order dated 13-10-1958 subject to the condition that the Produce Index Units are adjusted within a period of one month. Through an order dated 10-11-1958 (not on file) the Rehabilitation Commissioner cancelled the allotment. A Memorandum dated 16-1-1959 was issued by the Additional Rehabilitation Commissioner to the Deputy Commissioner, Muzaffargarh intimating that vide order dated 10-11-1958 of the Rehabilitation & Settlement Commissioner, West Pakistan, the allotment from the names of the appellants had been cancelled and, therefore, the possession- of the Garden may be taken over. A copy of the side memo was endorsed to the appellants. The appellants filed a revision petition before the Chief Settlement & Rehabilitation Commissioner (Copy not placed on record) but the same was treated as a review petition and was dismissed by the learned Chief Settlement & Rehabilitation Commissioner vide order dated 14-4-1963. He held that he was not competent to review the order passed by-his predecessor and therefore rejected the petition summarily. The petitioners then filed W.P.1517/63 which as earlier mentioned was dismissed vide order dated 28-11-1966. We have perused the record and have heard-arguments:

2. The learned counsel for the respondents have argued that Abdus Subhan one of the appellants died on 14-8-1967 and no application for bringing his legal representatives on record was filed within time and therefore the appeal had abated. The death of Abdus Subhan on 14-8-1967 is admitted. An application for the said purpose was in fact filed on 10-1-1968 which was returned by the office on the same date as time-barred. An application for condonation of delay (C.M.4/68) was drafted on 5-10-1968, the requisite stamp was pasted on it on 10-10-1968 and it was actually presented in the office on 15-10-1968. The condonation of delay is claimed only on one ground that one of the Legal Representatives, Mst. Batool, was admitted in a hospital and as such the application could not be filed earlier. It is worth mentioning that even in the application for bringing the legal representatives on record filed on 10-1-1968 the same ground in respect of the same Mst. Batool was mentioned to explain the delay and the same cause was repeated when the application was refiled, with the said application for condonation of delay, although about 9 months had by then expired (on 15-10-1968). There is no dispute that under Article 176 of the Schedule to the Limitation Act,1908 the limitation for bringing the legal representatives on record is 90 days. Similarly, it is not disputed that an application for setting aside the abatement can be filed within 60 days under Article.171 ibid. This would mean that the application for bringing the legal representatives on record was hopelessly time barred. In Ghulam Haider v. Mst. Raj Bhari and 4 others (P L D 1973, Lah.372) it has been laid down that abatement shall take effect on the expiry of 90 days from the date of death and no specific order for abatement is necessary. This would mean that even if the application is taken to be for the setting Aside of the abatement that had also become time-barred by the time the application was filed for the first time on 10-1-1968. Therefore, the important thing to be determined is as to whether the appellants are entitled to condonation of delay. As mentioned above, when the application was filed on 10-1-1968 it was mentioned therein that as Mst. Batool was admitted in the hospital the application could not be filed earlier. The same ground was repeated in the application for condonation of delay drafted on 5-10-1968 and filed on 15-10-1968. It is unbelievable that the said Mst. Batool remained in the hospital for so long a period of 9 months. In any case no certificate relating to her admission in the hospital was filed. Again there were 9 legal representatives in all, of whom there were the sons including major sons, a widow and the daughters including major daughters of Abdus Subhan. There is no allegation that all of them or any one of them except Mst. Batool were prevented from filing the, application earlier than 10-1-1968 It is not disputed that the application could be filed even by one of the I, legal representatives and the others could be joined as respondents. Therefore,' the legal representatives, other than Mst. Batool, even if she was so sick, could file such an application and could join Mst. Batool as respondent in the case. Therefore, the ground taken for condonation of delay is neither factually correct nor legally valid. Accordingly the delay in filing the application for bringing the legal representatives on record cannot be condoned. Similarly, if it is taken to be an application for setting aside the abatement the delay in filing the same cannot be condoned for similar reasons.

3. The learned counsel for the appellants has argued that them appeal will abate only to the extent of the right and share of Abdus Subhan and not in respect of the other appellants. The argument has no force. The allotment made on 19-6-1957 was made jointly in favour of all the appellants or their predecessors-in-interest as is evidenced from Annexure-A filed with the writ petition. It is specified therein as to what would be the share of each one of them or as to how much claim or Produce Index Units have to be got B transferred by each one of them. Therefore, the cause of action for the appellants was joint and inseparable. Accordingly, the cause of action did not survive for the appellants other than Abdus Subhan as such the appeal abated as a whole on the expiry of 90 days from his death which took place on.14-1-1967. The appeal is liable to be dismissed as having abated.

4. The learned counsel for the respondents have also argued that the present appeal is time-barred. It is not disputed that under Article 151 of the Schedule to the Limitation Act, 1908 the limitation for filing such an appeal is 20 days. The order under appeal was made on 28-11-1966. The appeal in itself was filed on 15-6-1967. It is also not disputed that such an appeal could be filed without a certified copy of the original order dated 28-11-1966. Certified copy of the said order shows that an application for obtaining the copy was made on 20-5-1967, copy was ready on 27-5-1967 and it was delivered on 9-6-1967 r This would mean that the application itself was filed after the expiry of the prescribed limitation. An application for condonation of this. delay has also been filed under section 12 of the Limitation Act, 1908. The sole ground taken in the same is that an application for obtaining the certified copy was made on 1-12-1966 through registered post but no copy on the same was supplied to them. In support a receipt of the Postal Department through which a registered A.D. communication addressed to Naqool Agency was despatched on 1-12-1966, has been placed on record as Annexure-A with this appeal. However, the A.D. receipt ha-s not been placed on record. Similarly, there is nothing on record to show that the appellants made an application to obtain a certificate from the Postal Authorities to show that the said registered communication was delivered to the Naqool agency. Again no effort has beep made to trace out the said communication or the application if it was an application for a copy, from the Naqool Agency concerned. On the other hand the appellants sent some communication to the Governor on 10-2-1967 complaining that the copy had not been supplied to them. What connection the Governor had with the said matter is a question which could not be answered. To say that the appellants were, simple persons and they did not know as to where from they had to obtain the copy is useless because the appellants had seen the doors of the High Court after being unsuccessful in a long litigation before the Rehabilitation and Settlement Authorities. 'They knew it well as to where from they could obtain the copy of the order dated 28-11-1966. Therefore, it is not known as to what was sent through registered A.D. post on 1-12-1966 to the Naqool Agency or for what purpose. In any case it cannot, be taken, for want of documentary support which was easy to .get, that the said communication was for obtaining a copy from Naqool Agency of tile High Court. The last but not the least, the copy of the order was delivered on' 9-6-1967 while the appeal was filed on 15-6-1967. In such .a case a person has to explain the delay of each day. The delay from ' 9-6-1967 to 15-6-1967 has not at all been explained. Accordingly the appellants have failed to make out a case C for condonation of delay. Apart from that as no copy for filing the "appeal was required the time spent for obtaining the copy, even if it was so spent up to 9-6-1967, cannot be added to the period of limitation. Accordingly the appeal was' hopelessly time-barred, and there are no reasons for condoning the delay.

5. Accordingly, the applications for bringing on record the legal representatives of Abdus Subhan and for condonation of delay in filing the said application and for condoning the delay in filing the appeal are dismissed.

6. As a result the appeal is dismissed. No order as to costs. H.B.T./193/A-L?????????????????????????????????????????????????????????????????????????????????? Appeal dismissed