1969 PLP 257 (SCMR)

HAMOODUR RAHMAN, C. J.‑This appeal, bar special leave, arises out of a judgment and order of a learned Single Judge of the High Court of West Pakistan, Karachi Bench, in a civil revisional application from an order of a Civil Judge, First‑Class, Hyderabad, passed on the 14th of October 1964, declaring the whole suit as having abated under Order XXII, rules 3 and 4 of the Code of Civil Procedure. The circumstances, which led to the above order of abatement, were briefly as follows: On the 15th of January 1960, some of the respondents herein filed a declaratory suit in the Court of a First‑Class Subordinate Judge, Hyderabad, claiming a declaration to the effect that they held Mukhadimi and Zamindari rights in certain lands situated in Deh Litryiun, Taluka Hala, District Hyderabed comprised in survey Nos. 4 to

22. In this suit a permanent injunction was also prayed for against the appellants herein who asserted a Jagirdari right over the same lands. Along with the suit an application was filed for a temporary injunction, but upon this application being dismissed an appeal was filed there from under Order XLIII, rule 1 of the Code of Civil Procedure, in the High Court of West Pakistan, Karachi. This appeal was subsequently transferred for disposal to the District Court of Hyderabad. During the pendency of the appeal one of the original plaintiffs Mooso died on 8‑12‑

61. Defendant Mir Hussain Bakhsh Talpur died sometime in the first week of December, 1961, and finally the plaintiff Ibrahim died on the 10th of May 1962. An application was made before the appellate Court for bringing on the record the heirs of the deceased parties and the legal representatives of the deceased were duly brought on the record of the appellate Court, but no similar application was then made in the original suit. After the disposal of the appeal when the trial re‑commenced in the original Court objections were raised on behalf of the defendants on the ground that the suit had abated. At this stage the plaintiffs filed an application under sections 151 and 153 of the Code of Civil Procedure for permission to amend the cause title of the plaint .by substituting therein the names of the legal representatives of the deceased parties. No application was, however, made either for setting aside the abatement or for the condonation of the delay. The learned Civil Judge on the 14th of October, 1964, rejected the application on the ground that it was time‑barred and declared the whole suit as having abated, as the cause of action of all the plaintiffs was joint and the interests of the deceased parties were indivisible from those of the surviving parties. The revision in the High Court was filed against this order. A learned Single Judge in the High Court took the view that the failure on the part of the plaintiffs to make a corresponding application for substitution in the trial Court was "no doubt an omission which can be called to be technically serious", but went on to hold that "in a matter in which technical omission has been made for bringing the legal representatives on record within time, the correct point of view is that latitude should be allowed to the parties." In support of this view reliance was also placed on an observation of a Division Bench of the same High Court in the case of Fateh Mohd. etc. v. Mst. Hayat Begum (P L D 4961 Lah, 274) to the following effect :‑ "If the law relating to abatement so clearly intended it to be confirmed only to the interest of the deceased party, there should be no effort on our part to find reasons for being unable to proceed with the rest of the case. On the contrary, our effort should be to proceed with it unless we face a blind alley." The revision was, accordingly, allowed, the order of the, Civil Judge was set aside and the legal representatives were directed to be brought on the record subject to the applicants (now appellants) being made liable to pay costs amounting to Rs. 1,000 as a punishment for their negligence in not making the application for substitution in the trial Court also within time. Leave was granted in this case to consider whether the substitution made in the Court of appeal during the pendency of the appeal from an interlocutory order, would not ensure also for the purposes of the suit and be sufficient to cure all defects in that behalf. Learned counsel appearing in support of the appeal has conceded that if the appeal had been from a final decree or order, then it would have been a continuation of the original proceeding and a substitution in the Court of appeal would have been substitution for all purposes; but the same rule, it is contended, cannot be applied in the case of a substitution made in a Court of appeal only in an appeal from an interlocutory order. In support of this contention learned counsel has also relied upon the case of Shankaranaraina Saralava v. Laxmi Hangsu and others (A I R 1931 Mad. 277) which was also cited and relied upon by the learned Civil Judge. But that was a case where two independent appeals had been filed and substitution was made only in one appeal. The other appeal was, therefore, held to have abated. It is regrettable that neither the learned Civil Judge nor the High Court noticed that in this very case the Madras High Court also referred to and distinguished a Privy Council decision in the case of Brij Indar Singh v. Kanshi Ram and others (44 I A 218), where it had been very clearly laid down by Lord Dunedin that a substitution even in an appeal from an interlocutory application would be a sufficient substitution for the purposes of the suit as well and no fresh application to bring the legal representatives of the deceased party on the record of the suit would be necessary. The Noble Lord observed at page 228 that "the introduction of a plaintiff or a defendant for one stage of a suit is an B introduction to all stages, and the prayer, which seems to have been made ob majorem cautelam, by the plaintiff in his application to the District Judge, Prenter, under section 365 was superfluous and of no effect. In that case too what had happened was that in the course of the hearing of the suit an application was made to the Chief Court of Punjab to revise an order of the District Judge, Ferozepur, directing the production of certain books. During the pendency of this revision application several of the parties died and substitutions were made in the Chief Court itself on ex parte applications. Then after the papers went back from the Chief Court to the District Judge an application was made by the other side for an order of abatement of the suit on the ground that the heirs of the deceased parties had not been brought on the record of the suit within time, as in the present case. One District Judge ordered the abatement. A successor District Judge set aside these abatements. The Chief Court set aside the latter order on the ground that a successor District Judge could not review an order of his predecessor. The Privy Council, however, allowed the appeal and remitted the case to the original Court to proceed with the hearing of the case on merits holding that in the circumstances no question of abatement arose. The same view has also been taken by a Division Bench of the Patna High Court in the case of Gobind Sahu v. Zafar Karim (A I R 1925 Pat, 145) following the Privy Council. There is no force, therefore, in the contention that these are too disconnected and independent proceedings. The Privy Council had said that the substitution in the appeal, even though from an interlocutory order, was in the same proceeding and, therefore, once the legal representatives of a deceased party has been brought on the record they were on the record for all purposes. Unfortunately, no one has appeared for the respondents in this case and, therefore, we have had ourselves to find out the above decisions, which were not placed before us by the learned counsel for the appellants. In our opinion, the decision of the Privy Council in the case of Brij Indar Singh furnishes us with a firmer legal ground for upholding the order of the High Court. The High Court itself had relied on a less firm equitable principle that where substantial justice has been done it should not interfere in revision. Justice has, however, to be administered according to law and it is always better if it can be based upon a firm legal ground. The rules of procedure, it must be remembered, are designed to advance justice and not to hamper justice. They should, therefore, be interpreted so as to achieve this objective as far as possible. Where legal representatives have already been brought on the record in a connected and inter dependent proceeding, even though in a superior Court, it would be hardly in keeping with this principle to insist upon a repetition of the process in a lower Court. In the view we have taken no question of abatement at all arises. Therefore, the question as to whether the suit abated as a whole or only partially need not be considered. This appeal is, accordingly, dismissed, but as no one has appeared for the respondents there will be no order as to costs. Appeal dismissed.