1992 PLP 490 (MLD)

MAMOON KAZI, J.‑‑‑These two petitions have arisen out of the judgment passed by the learned First Additional District Judge, Hyderabad, dated 18‑7‑1990 allowing the respondents revision and reversing the order passed by the learned Senior Civil Judge, Tando Muhammad Khan dated 4‑9‑1989 whereby an application filed by the respondents under Order 22, Rule 4, C.P.C. was dismissed as time‑barred.

2. The facts of the case, briefly stated, are that the petitioners had filed a suit against the respondents' predecessors and others claiming that they had forcibly taken possession of a part of the suit land by fraudulently getting the entries in the record of rights in their names. It was further alleged that the defendants were trying to take possession of the remaining part as well. The suit was resisted by the respondents' predecessors. During the pendency of the suit, most of the defendants died and the legal representatives of Pir Sarwaruddin Shah and Mst. Shabina who were defendants Nos.1 and 11 respectively in the suit were impleaded as parties. Applications were subsequently moved for joining the legal representatives of defendants No.2 to 9 which were opposed by the petitioners and the learned trial Judge dismissed the said applications by his order, dated 4‑9‑1989 as pointed out earlier. The respondents being aggrieved by the said order filed revisions before the learned First Additional District Judge, Hyderabad which was allowed with the directions to the trial Court to decide the case on merits. The following appears to be the reason which mainly weighed with the learned Additional District Judge for passing the said order: ‑‑‑ "But in the instant case still no judgment or decree has been passed and suit is still pending and during the pendency of the suit application of impleading the L.Rs. of deceased defendant has been ‑ made and under the circumstances that there is no penal clause in rule 4 of Order 22, C.P.C. regarding the failure to file list of L.Rs. or any statement or any application, the learned trial Court could have allowed the application as has been done in the precedent cases namely PLD 1988 Karachi 65 and PLD 1975 Lahore

79. Now, therefore, in view of the above circumstances I am of the opinion that the order passed by the learned Trial Court is improper not consider and against the spirit of the law. I, therefore, allow these applications and direct that the L.Rs. of the deceased defendant be joined as party and the case be proceeded further:"

3. We have heard Mr. Farooq who has appeared in person and Mr. Jhamat Jethanand, Advocate who appeared on behalf of the respondents in the case.

4. The main contention of Mr. Farooq before us has been that the learned Additional District Judge has failed to appreciate the fact that, according to Order 22, Rule 4, C.P.C., in case of failure to implead the legal representatives of a deceased defendant within time, the suit is to proceed against the dead defendant and a time‑barred application under Order 22, Rule 4, C.P:C: cannot be allowed unless permitted by the law. According to the petitioner, the application for impleading the legal representatives of the defendants, under Order 22, Rule 4, C.P.C., was filed after a delay of about five years, without any request for condonation of such delay, consequently, the learned Additional District Judge was clearly in error while granting the respondents' revision against the order passed by the learned Senior Civil Judge. Mr. Jhamat Jethanand, on the other hand, has supported the impugned order.

5. Rule 4 of Order 22, C.P. Code, around which the entire controversy revolves, was amended in 1972 by the Law Reforms Ordinance,, 1972 and before its amendment, the said Rule provided as follows:‑‑‑ "4 (1) Where one of two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants alone, or a sole defendant or sole surviving defendant dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased defendant to be‑made a party and shall proceed with the suit. (2) Any person so made a party may make any defence appropriate to his character as legal representative of the deceased defendant. (3) Where within the time limited by law no application is made under sub‑rule (1), the suit shall abate as against the deceased defendant." The Rule after its amendment, as pointed out above, now reads as follows: ‑‑‑ "4 Procedure in case of death of one of several defendants or of sole defendant.‑‑(1) Where one of two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants alone (or on receipt of an intimation of the death of such defendant from the person nominated by him for that purpose under the Rule 13, Order VIII) or a sole defendant or sole surviving defendant dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit. (2) Any person so made a party may make any defence appropriate to his character as legal representative of the deceased defendant. (3) When within the time limited 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 defendant, have the same force and effect as if it had been pronounced before the death took place. (4) ................................................. It would thus be seen that according to Rule 4, as it originally stood, the burden was on the plaintiff to implead the legal representatives of the deceased defendant as parties to the suit, failing which, the proceedings in the suit were to abate. 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 afore‑stated 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 with the same. Thus under the newly‑added sub‑rule (3), if no application has been made for impleading the legal representatives of the deceased defendant within the time limited by law, the Court may proceed with the suit and notwithstanding the death of the defendant it may pronounce any order or judgment and the same shall have the same force and effect as if it had been pronounced before the death of the defendant took place. Now, under article 177 of the Limitation Act the period prescribed for making such application, which may be made either by the plaintiff or by the legal representatives of the deceased defendant, is 90 days, which period is to be computed from the date of the death of the deceased defendant. Consequently, if no application is made either by the plaintiff or by the legal representatives of the deceased defendant within the time prescribed by the law, the Court would be obliged to continue the proceedings notwithstanding the death of the defendant and any judgment or order pronounced thereby would have the same force and effect as provided in sub rule (3), as pointed out earlier. The learned Additional District Judge has placed reliance upon two judgments namely, those given in Mst. Hajiani Fatima Bai v. Mst. Ameena PLD 1988 Kar. 65 and Mst. Sardar Begum v. Abdul Oadir PLD 1975 Lah.79. In the first case, it was held by a learned Single Judge of this Court that notwithstanding the fact that an application for bringing the legal representatives of the deceased appellant on record had been moved after expiry of 90 days, yet the appeal would not abate after the death of the appellant. In the, second case, which was decided by a 1Larned Single judge of the Lahore High Court, a similar question had arisen but it was held that the effect of the original Rule 4 of Order 22, C.P.C. has now been nullified by the amended Rule 4 which provides that even in the absence of any application having been moved for impleading the legal representatives within the prescribed `time, the order or the judgment, as the case may be, may be pronounced in the suit or appeal and it will have the same force and effect as if it had been made or pronounced before the death took place. It was further held that the effect of the said amended provisions would be that abatement after the death of a party would not take place even if his legal representatives have not been brought on record within the time limited by law. We would like to point out that both the cases referred to by the learned Additional District Judge are not attracted to the facts of the present case. In both the cases the application to bring the legal representatives of the deceased defendant was moved either on behalf of the appellant or the plaintiff in the case. Since now the law does not impose any obligation upon the plaintiff to bring the legal representatives of the deceased defendant on record as was the case before the amendment of Order 22, Rule 4 by the Law Reforms Ordinance, as now the proceedings in the suit would not abate, as pointed out earlier, it becomes immaterial whether the application is moved by the plaintiff within the time prescribed by the law or not. 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. It is pertinent to note that, as has been pointed out earlier, failure of the plaintiff to apply for joining the legal representatives will not result into abatement of the suit, whereas, 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 from taking part in the proceedings and the suit, in that case, would continue in the name of the dead defendant. It would, therefore, be erroneous to assume that the effect of the said amendment on the plaintiff or the legal representatives of the deceased defendant is the same. 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. However, as has been pointed out earlier, the legal representatives of the deceased defendant must apply within the period of limitation provided in this regard and any application filed by them after the expiry of such period would be time‑barred and thus liable to be dismissed by the Court. The order of the learned Additional District Judge, therefore, is clearly erroneous as it completely overlooks this material aspect of the matter.

6. Although, Mr. Jhamat Jethanand, learned counsel for the respondent, in view of the aforesaid legal position, has very candidly conceded that an application by the legal representatives of the deceased defendant must be made within the time prescribed by law, but according to him, the relevant Article of the Limitation Act by which such application would be governed is Article 181 which provides for a period of limitation of three years, and not Article 177 which, according to him, was applicable before the said amendment. Mr. Farooq has, however, invited our attention to the case of Mst. Sardar Begum v. Mst. Chiragh Bibi 1989 CLC 825 wherein a question had arisen before the Supreme Court, whether the Court under the law could proceed with the suit in terms of Order 22, Rule 4, C.P.C. before expiry of 90 days which is the period of limitation prescribed under Article 177 of the Limitation Act for the legal representatives of the deceased defendant to be made a party to the proceedings. In this connection, it was observed by the Supreme Court as follows: ‑‑‑ "There is another important aspect of the case which appears to have been ignored by the Additional District Judge while accepting the revision filed by the respondent. Jalal Din, the defendant, in the suit, died on 13th of November, 1978 while the ex parte proceedings were taken against him and the decree was passed on account of his non appearance on 3‑1‑1979. Order XXII, Rule 4, C.P.C. as amended by the Law Reforms Ordinance, 1972, permits a Court to proceed with the suit notwithstanding the death of a defendant, in the same manner, as if he was alive. This power is, however, circumscribed by the condition that no application for bringing his legal representatives is made within the time limited by law. According to Article 177 of the Limitation Act, the period of filing such an application ‑is 90 days prescribed under Article 177, the Court cannot proceed with the suit in terms of Order XXII, Rule 4, C.P.C. This full period of 90 days must be made available to the legal representatives of the deceased to come forward and make an application. It is only when, they fail to do so, that the proceedings can be taken notwithstanding the death of the defendant. This provision is in the nature of an exception to the general law under which no proceedings can be held against a dead person and is, therefore, to be strictly construed. The jurisdiction given to the Court under Order XXII, rule 4, C.P.C. is subject to the conditions laid therein which must be strictly fulfilled and failure to do so would vitiate the proceedings." Although it clearly appears from the above observations that Article 177 of the Limitation Act would be applicable in the present case and the same period of 90 days would be available to the plaintiff as well as the legal representatives of the deceased defendant for making application under Order 22, Rule 4 to the Court but since in the present case the learned Additional District Judge has clearly proceeded on an assumption that the effect of the original Rule 4 has been nullified by the aforesaid amendments introduced in the said rule by Law Reforms Ordinance, it would not be necessary for us to enter into the controversy on the point, whether Article 177 or Article 181 would be applicable in the present case. However, we are clearly of the view, that the learned Additional District Judge has failed to take into consideration all the relevant aspects of the case as has been just pointed out by us in this judgment. So far as the order of the learned Senior Civil Judge is concerned, it fails to make a specific reference to the respective dates on which the predecessors of the respondents died. We are, therefore, of the opinion that it is a fit case to be remanded to the learned Senior Civil Judge for first determining the time of the death of the predecessors of the respondents and then deciding the question of limitation. The question whether Article 177 or Article 181 would be applicable in the present case is also left to the learned Senior Civil Judge to decide.

7. In the result, the case is remanded to the learned Senior Civil Judge D for deciding the issue and in case the learned Senior Civil Judge is of the opinion that the evidence before him is not sufficient for conclusive determination of the issue, he shall be at liberty to allow the parties to adduce further evidence in this behalf. It may be further pointed out that in case one of the parties is permitted to lead further evidence, the opposite party shall have a right also to produce evidence in rebuttal. The question shall be decided by the learned Senior Civil Judge as expeditiously as possible in accordance with the directions already given to him by the learned Additional District Judge in the impugned order. AA./B‑212/K Case remanded