1987 PLP 1874 (SCMR)

JAVID IQBAL, J.-- This petition for leave to appeal is directed against the order of a learned Single Judge of the Lahore High Court, Lahore dated 17 March, 1981 passed in Writ Petition. No. 1513 of 1981. Briefly the facts are that the petitioners were vendees of the disputed land and the sale in their favour was pre-empted by respondents 3 and 4 as well as their brother Ghulam. The respondents filed pre-emption suit on lst January, 1969 against the petitioners but about three months thereafter Ghulam died while the suit was pending. An application for the substitution of his legal representatives, if filed was belated. The suit however proceeded and was eventually dismissed on 24 June, 1972. Thereafter the appeal of the respondents was accepted. Later on the petitioners unsuccessfully challenged the appellate order upto the level of the Supreme Court. Then an application under Order XXII CPC for the abatement of the suit was filed by the petitioners praying therein that during the pendency of the suit one of the plaintiff namely Ghulam had died but his legal representatives were not brought on the record. The death of Ghulam had taken place 5 years back. It was contended that since the legal representatives of Ghulam had not been brought on the record the right to sue did not survive and that therefore so far as the remaining plaintiffs (respondents) were concerned the suit was not maintainable for partial pre-emption. This application was dismissed by the trial Court. Revision against the order of dismissal also met the same fate and it was held that in view of the death of one of the several plaintiffs seeking to pre-empt the sale, the suit would not abate. Learned counsel for the petitioners argued that in the circumstances of the present case the suit had abated and in this connection reliance was placed on Sh. Inayat Ali v Ghulam Muhammad and others (1976 SCMR 121). But in our view 1976 SCMR 121 is distinguishable as in that case the right of pre-emption had been claimed jointly by two brothers and the question involved was of the abatement of an appeal on the death of one of them, when his legal representatives had not been impleaded within time. In the present case the question involved is not in abatement of appeal but of the suit. In other words the death of Ghulam had taken place while the matter was pending and each of the respondents had equal and independent right to pre-empt the sale. So in the circumstances of the present case the principle laid down in Mst. Said Begum and others v. Nur Ahmad and others PLD 1978 SC 133 would apply in which it was held that the test to see whether the suit or appeal had abated as a whole or only, in part was to find out if the suit, in the first instance, could have been instituted and prosecuted with the deceased plaintiff left out. In the present case the death of one plaintiff Ghulam would not result in the non suiting of the other respondents. In that view of the matter in our view the impugned order of the learned Single Judge of the Lahore High Court Lahore calls for no interference. This petition is accordingly dismissed. S.Q./N-28/S Petition dismissed.