Abatement of appeal
Abatement of appeal legal meaning, translation and judicial precedents.
Meaning & Judicial Interpretation: (اردو مفہوم اور قانونی تشریح)
Under the law, a criminal appeal abates on the death of an appellant, but section 431, Cr.P.C. provides an exception to this general rule
It provides that an appeal against a sentence of the fine shall not abate by reason of death of an appellant, because it is not a matter, which affects his person, it would certainly affect his estate
Thus, upon the death of an appellant, his appeal to the extent of a portion of the sentence of imprisonment, abates whereas, the appeal to the extent of sentence of fine, affecting the property of an appellant, shall not abate and is to be heard on merits and in accordance with the settled principle of criminal justice.
Supreme Court, though not obliged to do so, but in the interest of justice, had also issued notices to the legal heirs of the appellant (convict) on all available addresses and which were provided, both within the country and abroad
Notices were also published in a leading English newspaper and a leading Urdu newspaper
However, none of the legal heirs had come forward and elected to contest present appeal
Counsel for the deceased appellant stated that the legal heirs did not approach him, let alone engage him, and had also not responded to the notices/publications issued by the Supreme Court; that in his opinion the instant appeal abates in terms of section 431 of the Code of Criminal Procedure, 1898
In the given circumstances, and as none of the legal heirs had come forward, the present appeal was dismissed as having abated
Consequently, the conviction of the appellant by the Special Court subsisted.
Appeal against sentence of death or imprisonment was to abate on the death of accused, however, it could stay and was decided on merit to the extent of sentence of fine
High Court returned record and case property to Trial Court as appeal stood abated as per S. 431, Cr.P.C.
Appeal abated, in circumstances.
Held, that corporal consequences of a conviction withered away with the death of the convict, therefore appeal filed by the convict would automatically abate, as the death severed all temporal links with his corpus
However, financial liability or fine, consequent upon conviction, which shifted upon the estate of deceased-convict, would certainly require the appellate court to decide the appeal on its own merit as in the event of its failure, the liability was to be exacted from the assets devolving upon the legal heirs.
Usually a criminal appeal would abate on the death of accused, but S.431, Cr.P.C., seemed to have made an exception to the general rule
Under S. 431, Cr.P.C., appeal against sentence of fine would not abate by reason of the death of accused, because it was not a matter which affected his person, but one which would affect his estate.
Ordinarily, a criminal appeal would abate on the death of appellant/accused, but S.431, Cr.P.C. had provided an exception to that general rule
Under S.431, Cr.P.C. an appeal against sentence of fine would not abate by reason of death of accused, because it was not a matter, which would affect his person, but would affect his estate
Upon death of accused, his appeal to the extent of a portion of sentence of an imprisonment, would abate, whereas the appeal to the extent of sentence of fine, affecting the property of accused, would not abate
Sentence awarded to a government officer or employee would certainly affect his service; in such an eventuality, his conviction would also affect his pensionary benefits
On that score as well, appeal would not abate
In the present case, the amount of fine had been ordered to be recovered from the properties of accused
Accused being a government employee, his conviction and sentence, would certainly have an impact not only upon his estate, but also upon his pensionary benefits
Appeal to the extent, in circumstances would not abate on death of accused.
Petitioner, who was dismissed from service, after exhausting remedy of departmental appeal, filed appeal before Service Tribunal, but said appeal was dismissed by the Service Tribunal by finding it having been abated
Undisputedly petitioner was employee of WAPDA, set up under Pakistan Water and Power Development Authority Act, 1958
WAPDA, however by exercising its powers wider S.8(5) of Pakistan Water and Power Development Authority Act, 1958, formed companies for different regions including, Quetta Electric Supply Company (QESCO) and services of the petitioner were placed at the disposal of said Company, (QESCO)
Board of Directors of QESCO adopted all existing rules of WAPDA in its meeting
Terms and conditions of petitioner's services had thus been determined, under the Act and Rules made thereunder
Petitioner, in circumstances could not invoke constitutional jurisdiction of the High Court in matters relating to the terms and conditions of his service in view of the clear bar contained in Art.212 of the Constitution
Petitioner was to have approached the Service Tribunal for restoration/revival of his appeal in the light of judgment of apex Court reported, in PLD 2007 SC 681
Petitioner had remedy before the Service Tribunal where he had already filed appeal
Constitutional petition being not maintainable, was dismissed.
Earlier, petitioner filed appeal before Federal Service Tribunal, but Registrar of the Tribunal intimated him that in view of judgment (PLD 2006 SC 602) his appeal stood abated
Petitioner promptly served grievance notice and then filed grievance petition before the Labour Court
Respondents raised an objection in respect of competency of grievance petition on the ground that in view of Supreme Court judgment reported as 2008 SCMR 402, judicial order should have been passed by the Service Tribunal with regard to abatement of appeal, whereas no such judicial .order was passed; and only a notice by the Registrar of Service Tribunal was issued
Contention was that without having judicial order of the Service Tribunal, grievance petition before the Labour Court could not have been processed
Labour Court dismissed the grievance petition filed by the petitioner on that score-only, which was assailed in the High Court in appeal, and same was dismissed, which was sought to be reviewed
Validity
Labour Court instead of dismissing grievance petition, should have adjourned the case till passing of judicial order by the Service Tribunal, whereas Labour Court decided the matter in haste and did not wait judicial order of Service Tribunal in respect of abatement of the petitioner's appeal resulting into miseries faced by the petitioner
Order passed by the Labour Court was nullity in the eye of law
Judgment passed in appeal was reviewed and case was remanded to the Labour Court with the direction to decide same afresh on merits.
Only point involved in the case was whether the Labour Court was justified in dismissing the appellant's grievance petition or not
Supreme Court had once for all resolved the issue holding that Registrar/Deputy Registrar of the Tribunal had no authority to pass an abatement order in any appeal, whereas it should have been presented before a Bench of the Tribunal
In the present case, appellant approached the Service Tribunal, his appeal was ordered to be abated by the Registrar of the Tribunal, which could not have been done as per terms of the judgment of Supreme Court
Labour Court did not commit any illegality while passing impugned order.
Penalty of stoppage of three annual increments having been imposed on the petitioner after charge-sheeting him for committing misconduct, he filed appeal against such order
Some identical petitions were heard by the Supreme Court in case reported in PLD 2006 SC 602 while interpreting provisions of S.2-A added in the Service Tribunals Act, 1973 and it was directed that appeals so pending before the Service Tribunal stood abated; later on, Supreme Court passed an order in some other connected matter; directing therein that the question as to whether or not a Service appeal, pending before the Service Tribunal stood abated, was to be heard and decided by the Tribunal itself on its judicial side; and that the Registrar or any other officer of said Tribunal was not competent to direct for such abatement
Petition was admitted and allowed with the direction that letter issued by Assistant Registrar of the Service Tribunal was set aside and appeal itself stood remanded to the Service Tribunal to hear the parties and then to decide the question on the judicial side as to whether or not appeal pending before it stood abated.
Pakistan International Airlines Corporation (Suspension of Trade Unions and Existing Agreements) Order (6 of 2001), Art.4
Removal from Service (Special Powers) Ordinance (XVII of 2000), Ss.3 & 10
Appeal to Service Tribunal
Abatement of appeal
Petition against abatement
Petitioners were employees of Pakistan International Airlines Corporation
Petitioners were six in number and four out of them were compulsorily retired from service and two were dismissed from service
Petitioners filed appeals before Service Tribunal under Ss.2-A & 4 of Service Tribunals Act, 1973 for setting aside impugned orders and reinstating them in service
Said appeals were admitted for hearing, but in view of judgment of Supreme Court dated 27-6-2006 reported in PLD 2006 SC 602, said appeals abated and petitioners had filed petitions against said abatement
Supreme Court in its said judgment had clearly held that an employee of a commercial organization like P.I.A.C., having no Statutory Rules, was not a civil servant as defined under S.2(1)(b) of Civil Servants" Act, 1973
Petitioners being employees of P.I.A.C. which was a commercial organization having no Statutory Rules of their service, had been barred from knocking at the doors of the Service Tribunal for remedy and their pending cases could not be disposed of by Service Tribunals for want of Statutory Rules of Service and appeals had thus, abated
Appeal under S.10 of Removal from Service (Special Powers) Ordinance, 2000 had also been filed by petitioners in their capacity as civil servants under S.2-A of Service Tribunals Act, 1973, but their such position having been done away with, they could not approach the Service Tribunal for remedy
Counsel for Corporation had rightly stated that the door of the Service Tribunal closed by the Supreme Court under provisions of Arts.240 & 260 of Constitution, could not be re-opened by a subordinate legislation like Removal from Service (Special Powers) Ordinance, 2000
Request of petitioners to continue with the proceedings of their appeals on merits could not be granted
Appeals having already stood abated in view of judgment of the Supreme Court, petitions filed by the petitioners, were dismissed.
Notice of abetment of .appeal was issued by Assistant Registrar of the Tribunal to appellant in pursuance of judgment of Supreme Court
Appellant had filed petition for recalling of said notice of abatement
During hearing of said petition, counsel for appellant produced a copy of Notification dated 15-2-2007 wherein it was stated that the "Federal Law Enforcement Agency" had included along with others, Federal Investigating Agency Pakistan Motorway and Highway Police
Notice of abatement of appeal issued to appellant, was recalled
Case of appellant being within the exclusive ,jurisdiction of the Service Tribunal, would proceed, accordingly.
O. XVI, r.. 7-Abatement of appeal-Interest of other respondents in disputed land being exactly identical with that of deceased respondent and all defences open to him having been taken on behalf of other respondents, case, held, not one where appeal could be said to have become defective by reason of absence of a necessary party.
O. XXII, rr. 3 & 11 read with Supreme Court Rules, 1956, O. I, r. 5 &. O. XVI, rr. 7 & 9-Aoatemcant of appeal-Provisions of Civil Procedure Code, 1908 -Not applicable to proceedings in Supreme Court
Supreme Court may, however, on application by any interested person within 90 days grant a certificate showing name of a person to be substituted in place of party on record-Supreme Court nevertheless empowered to extend time for sufficient cause-Legal representatives of deceased altogether failing to tender any explanation for not making application within 90 days of party's death by apprising their Advocate-on-Record about death, extension of time refused.-[Supreme Court-Abatement of appeal].
Legal representatives of some of defendants impleaded in suit not brought on record after death of such defendants during pendency of appeal-Appeal, in circumstances, held, abated in toto.
"Abatement of appeal", Pakistan Law Portal, available at: https://paklawportal.com/words-terms-maxims/15147
Precedents & Case Laws citing "Abatement of appeal"
1983 C L C 16
MUZAFFAR AND 2 OTHERS — Appellants Versus Moulvi AZIZUR RAHMAN AND OTHERS-Respondents
Court:1976 S C M R 12
Sheikh INAYAT ALI‑Petitioner Versus GHULAM MUHAMMAD AND OTHERS‑Respondents
Court: ‑‑O. XXII, r. 3‑‑Abatement of appeal‑Suits for pre‑emption decreed on first appeal taut during pendency of second appeals, by defendant, one of pre‑emptors dying and no steps taken to bring his legal representatives on record for more than 2 years Right of pre‑emption having been claimed jointly by two brothers, and not pro rata in their own rights, appeal, held, abated on death of other brother.‑Abatement of appeal‑Pre‑emption suit.1984 S C M R 863
DIN MUHAMMAD‑Appellant Versus PROVINCE OF PUNJAB THROUGH COLLECTOR AND OTHERS‑Respondents
Court: --‑-Art. 185‑Civil Procedure Code (V of 1908), O. XXII, r. 3 read with Limitation Act (IX of 1908), S. 5 ‑Abatement of appeal‑Death of appellant during pendency of appeal‑No application for bringing on record appellant's legal representative made and appeal abating on expiry of ninety days‑Applications for setting aside abatement and for bringing legal representative on record submitted about forty‑four months after appellant's death‑No sufficient cause given for condon ing long period of delay‑Appeal disposed of as having abated. Abatement‑Appeal (civil).P L D 1976 Supreme Court 308
Syed MUHAMMAD ZAKI‑Petitioner Versus MAQSOOD ALI KHAN AND 2 OTHERS‑Respondents
Court: ‑‑ O. V, r. 2‑Review ‑‑ Courts, more particularly superior Courts, unless compelling reasons to contrary exist, always loan in favour of determination of cases on merits‑Court deciding to hear whole appeal on merits‑Application seeking reconsideration of order, held, implicitly stood dismissed ipso facto‑Order in question taking into consideration circumstances preventing applicant from applying for setting aside of order of abatement of appeal within normal period of limitation, no sufficient ground, held, made out for review of order Review‑Appeal.1983 S C M R 112
Mst. KALSOOM KHANUM-Appellant Versus SETTLEMENT COMMISSIONER AND OTHERS-Respondents
Court: -- O. XXII, r. 4-Heirs of deceased, impleading of-Notice given to Advocate on Record to implead heirs of deceased as respondents but needful not done and requisite application not made within statutory period of 90 days-Subsequent application filed alongwith application for condonation of delay, held, not based on convincing grounds hence application dismissed resulting in abatement of appeal.-Abate ment.P L D 1977 Lahore 513
MUHAMMAD DIN AHD ANOTHER-Plaintiffs-Petitioners Versus GHULAM QADIR AND 2 OTHERS-Defendants-Respondents
Court: -- O. XXII, rr. 3 & 4-Abatement of appeal-Only one joint transaction in appellant's favour by way of alleged gift and their interests joint and indivisible-Allegation of gift in favour of appellants not found established by Courts below-One of appellants dying and his legal representatives not brought on record-Possible to hold in appeal gift having been made in favour of surviving appellant . Finding having already been given by Courts below as to no gift having been made in favour of any of appellants, finding as to gift having been made in surviving appellant's favour, gives rise to two inconsistent decrees-Acceptance of appeal likely to result in two inconsistent decrees with respect to same subject-matter, appeal, held, must abate in toto.-Abatement of appeal.1987 S C M R 9 40
Syed BAHA‑UD‑DIN and another‑‑Appellants Versus Kh. MUHAMMAD SHARIF and others‑‑Respondents
Court: ‑‑‑Art. 185(3)‑‑Civil Procedure Code (V of 1908), O.XXII, R. 4 before amendment by Law Reforms Ordinance (XII of 1972) ‑‑Dissolution of partnership‑‑Abatement of appeal on death of one of respondents‑‑Leave to appeal granted to consider contentions (i) that High Court was wrong in taking the view that the appeal had abated in toto in that in a suit for dissolution of partnership every partner was in position of plaintiff as well as defendant and share of each partner in assets of partnership automatically passed to his heirs, and (ii) that where a party was entitled to a definite and ascertained share then there was no question of abatement in toto.1987 S C M R 1427
GHULAM QADIR and others‑‑Petitioners Versus ALLAH YAR‑‑Respondent
Court: High CourtP L D 1978 Karachi 82
RASHID RAYON MILLS. KARACHI‑Appellant Versus AMIN YUSUF NIZAMI (THROUGH HIS HEIRS) -Respondent
Court: ‑--O. XXII, r. 1‑Abatement of appeal‑Respondent‑decree‑holder dying during pendency of appeal filed against decree awarding damages for his personal injury‑Held, cause of action in such case merges in decree and rights and liabilities arising under decree continue on death of plaintiff during pendency of appeal against decree‑Such decree creates a judgment debt and enures for benefit of decree‑holder's estate‑Maxim t Transit in rem judicatam.‑Maxim Abatement of appeal‑Cause of action.1986 S C M R 170
ABDUL RAHIM‑‑Petitioner Versus SETTLEMENT COMMISSIONER and others‑‑Respondents
Court: High Court