Abatement

Plaintiff instituted suit against number of defendants; later, he filed application for impleading legal heirs of one of defendants ('defendant-in-question') which was concurrently allowed

Objection of petitioner (yet another defendant ) was that defendant-in-question was already dead at the time of institution of suit so plaintiff filed suit against a dead person whose legal heirs could not be impleaded later

Validity

Present case was one of partial abatement; in case of abatement in toto, impleadment of legal representatives of deceased under O.I, R.10, C.P.C could be questioned in a sense that suit in its inception could not progress against the dead person

A suit against a dead person is a nullity in the eye of law upon the strength of provisions of S.27 read with O.I, Rr., 3, 9 and 10 of the Civil Procedure Code, 1908, because it can be filed against living person or can be filed against natural and legal person

Where there is only one defendant in the suit (who already died prior to institution of civil suit) it shall be regarded invalid, however, in case of more than one defendants in the suit, the suit cannot be taken as nullity in its totality merely on account of reason the one of the defendant was dead at the time of presentation of a suit

Thus the Courts below had rightly accepted the application of the plaintiffs/respondents and had not committed any illegality, irregularity and perversity while passing the impugned orders

High Court maintained the orders impugned as the petitioner failed to point out any illegality or irregularity on the part of the respondents

Writ petition, being merit-less, was dismissed.

Plaintiff instituted suit against number of defendants; later, he filed application for impleading legal heirs of one of defendants ('defendant-in-question') which was concurrently allowed

Objection of petitioner (yet another defendant ) was that defendant-in-question was already dead at the time of institution of suit so plaintiff filed suit against a dead person whose legal heirs could not be impleaded later

Validity

There is no question of abatement in view of the plain language of the O.XXII, R.1, C.P.C, as the proceedings may be revived by the substitution of parties up to which time the party remained in the state of suspense or unaware unless the right is pertaining to personal activities connected with the individuality of the deceased, as such activities are hit by the doctrine of "actio personalis moritur Cum Persona", which denotes that right of action dies with person deceased

Although suit against a dead person is nullity in the eye of law but it is only when the suit was brought only against one person (dead) and substitution of the parties by way of impleading legal heirs of the deceased cannot provide oxygen tent to the suit and the suit shall be abated in toto as the plaintiff can bring a fresh suit against the legal representatives of the deceased subject to law of limitation, but the suit will remain in field and will not be hit by abatement if there are more than one defendants in the array of suit; if there is an application, substitution is permissible

Thus the Courts below had rightly accepted the application of the plaintiffs/respondents and had not committed any illegality, irregularity and perversity while passing the impugned orders

High Court maintainedthe orders impugned as the petitioner failed to point out any illegality or irregularity on the part of the respondents

Writ petition, being merit-less, was dismissed.

Connotation.

Where appeal was filed by the tortfeasor and cross-objections were filed by the plaintiff and appellant had died, appeal did not abate but cross-objections would abate and if plaintiff had appealed, the same would also abate.

If suit of a plaintiff was dismissed by the Trial Court and during pendency of appeal in the case of death of either party, appeal abated

If decree had been passed in favour of plaintiff, in case of death of either party, appeal filed by the defendant would not abate and the legal representatives of the parties would step into the shoes of appellant/respondent

If suit had been partially decreed and both parties had preferred appeals, then in case of death of either party, the appeal for enhancement of damages would abate but appeal of defendant for setting aside the partial decree would not abate

Death would extinguish the liability in tort

Where appeal was filed by the tortfeasor and cross objections were filed by the plaintiff and appellant had died, appeal did not abate but cross objections would abate and if plaintiff had appealed, the same would have abated

Cross objection had been abated and same could not proceed and stand dismissed

Appeal was dismissed, in circumstances.

Decree in favour of the landlord, entitled him to get possession of the disputed property, therefore, upon his death, the decree did not abate

Once a right was accrued in favour of a decree-holder, after his death, it automatically devolved upon his legal heirs and they had the right to defend the decree and were entitled to contest the appeal.

Contention of the tenant (appellant) was that since the landlord had died after the order of the Rent Controller; his legal heirs could not get the benefit of the impugned order of the Rent Controller

Validity

Deceased landlord had succeeded in the ejectment petition on ground of bona fide personal need and the Trial Court/Rent Controller had ordered the tenant to vacate the premises

Decree had been defined in S.2(2) of the C.P.C. as a formal expression of adjudication, determining the rights of the parties to the suit etc.

Word "party(s)" shall include his/their legal representative(s), who represent(s) the estate of the deceased and stepped into his/her/their shoes

Decree was a declaration of a right of a party, which entitled it to get such a right

Decree in favour of the landlord, entitled him to get possession of the disputed property, therefore, upon his death, the decree did not abate

Once a right was accrued in favour of a decree-holder, after his death, it automatically devolved upon his legal heirs and they had the right to defend the decree and were entitled to contest the appeal

Appeal was dismissed.

Where the legislature in its wisdom had made the course of abatement conditional, or subject to any limitations or where it was provided to save, resurrect or exclude any category of proceedings from the realm thereof, the abatement shall not take effect otherwise than, as strictly prescribed by the law.

Concept of abatement is not capable of exact definition.

Concept of abatement is not capable of exact definition.

Abatement by operation of law being always ipso facto, it was not necessary to obtain order of the Court wherein application or appeal was pending vis-a-vis abatement proceedings.

Petitioner, who was a retired Junior Officer (Accounts) had filed grievance' petition against respondent (Pakistan Industrial Development Corporation) which was a statutory Corporation created vide Provincial Industrial Development Corporation Ordinance, 1962 for promoting economic and industrial development in the Province and for matters ancillary thereto

Petitioner's grievance being against Government controlled Corporation, his case was hit by S.2-A, Service Tribunals Act, 1973 and forum under Labour Laws had no jurisdiction to adjudicate the matter

Grievance petition and thereafter, revision petition of petitioner, were rightly dismissed as abated.

Concept of abatement.

Effect on pending proceedings.

Leave to appeal granted to appellant to consider the effect of abatement of second appeal in so far as the deceased respondent was concerned.

[ Appeal(civil)-Abatement].

Leave to appeal refused.

Question of abetting such offence, held, would not arise.

High Court holding that it was a case where there was only one joint transaction in favour of appellants by way of alleged gift and as such interests of appellants were indivisible and if appeal was to be accepted two inconsistent decrees could come into existence, and for that reason appeal had abated as a whole

Leave to appeal granted to consider contention that view of High Court was not correct and that High Court was not justified in dismissing appeal as having abated in toto but should have decided same on merits.

[Abatement].

Civil Procedure Code (V of 1908), O. XII, r: 33-Abatement-Leave to appeal granted to consider (i) whether in presets- ' of co-appellant, appeal could have abated qua his two brothers and if so whether delay in applying for setting aside abatement could not be condoned on ground that legal representative were misled by possible saving of abatement; (ii) whether petitioner could not represent estate of his deceased brothers by representing their joint interest and what was effect of O. XLI, r. 33, C. P. C. and (X) whether case of so called total abatement.

[Abatement].

Abatement-Civil Procedure Code, 1908, held, fully applicable to constitutional petitions and application for substitution of legal heirs must be made within prescribed time-Constitution of Pakistan (1973), Art. 199.-[Abatement]

Appeal filed before Tribunal on 31-5-1979, held, hopelessly time-barred-Erroneous advice of counsel regarding forum, held, not sufficient ground for condonation of delay.

Abatement-Automatic-Limitation of 90 days starts from date of establishment of Tribunal (22-7-1974)-Abatement order passed by High Court on 7-7-1975-Copy of order applied for on 15-9-1975 (over 2 months' delay)-Copy ready on 17-9-1975 but collected on 25-9-1975 (8 days' delay)-Seven days more delay thereafter in filing appeal

Each day of delay not explained with justification-Circumstances indicating indolence on part of appellant-Appeal, held, time-barred.

S. 8-Limitation-Abatement-Abatement takes place without any formal order by Court-Limitation to run from date of establishment of Tribunal and appeal before Tribunal to be filed, within 6 months from date of establishment of Tribunal i.e. at the latest by 21-7-1975Impugned order passed in October, 1972-Civil suit filed in 1974 and dismissed on 12-3-1976 for want of jurisdiction-Appeal before Tribunal filed on 27-3-1976-Plea that appellant was following remedy before civil Court, held, fails to make out case that appellant acted with due diligence-Condonation prayer rejected.

S. 8-Abatement-Limitation for appeal to Tribunal-Writ petition pending prior to establishment of Service Tribunal-Stand automatically abated-Appeal before Tribunal maintainable within -prescribed period of 90 days of abatement-Condonation-Prayed on ground that delay occurred for collecting certain documents-No such document being not available during writ proceedings pointed out specifically Explanation for delay, in circumstances, held, not sound and. application for condonation rejected.

S. 8, Proviso-Limitation-Abatement automatic by operation of law-No order of Court necessary-Abatement effective on date of establishment of Tribunal (22-7-1974)-Each day of limitation must be explained-Abatement order's copy available within prescribed limitation of 010 days-Appellant, held, after receipt of copy of abatement order, could avail of reasonable period and not a period of 90 days as a matter of right-Appeal filed on 10-12-1974, held, time-barred and merits dismissal.

S. 8-Abatement-Takes place by operation of law-Formal order not necessary-Lack of notice or knowledge amounts to ignorance of law hence no excuse for condonation of delay in filing appeal before Tribunal-Contention that notice regarding writ petition before High Court was received by Advocate who could not appear because having been appointed as Deputy Attorney-General of Central Government-No proof that for such appointment Advocate was precluded to appear before High Court or at least make a request for adjournment and inform his client (appellant)

Request for condonation of delay, in circumstances, held, without justification.

O. XXII. rr. 3 & 4 [as amended by Law Reforms Ordinance (XII of 1972)] & S. OW-Abatement-Law Reforms, Ordinance, 1972Not retroerective in of eration-Effect of abatement happening prior to coming into force of Ordinance, hence, not undone.-[AbatementInterpretation of statutes].

Appellant dying but application for bringing his legal representatives on record not fled for almost 4 years nor any heed paid to notices issued by Registry of High Court

Except vague assertions about ailment of members of family of deceased unsupported by medical certificates and their trained circumstances no satisfactory explanation of delay forthcoming-Appeal dismissed.-[ Abatement-Appeal (civil)

Delay].

Art. 58(3)-Appeal-Abatement-Appellant dying but application to implead his legal heirs filed after a delay of almost two years- Explanation of delay Unawareness of law by legal heirs-Heirs even if unaware of law, their being represented by an Advocate-on-Record, held, negatived satisfactoriness of explanation.-[Abatement of appeal].

O. XXII read with Law Reforms Ordinance (XII of 1972)-Abatement-Effect of Ordinance (XII of 1972), on pending actions-Appeal abated much before coming into force of Ordinance XII of 1972Respondent having acquired valuable right, of defeating claim of legal representatives to be brought on record, could not be deprived of his right on ground that law of abatement has been abolished by the Ordinance.

S. 13 read with Civil Procedure Code (V of 1908), O. XXII-Abatement-Application for ejectment under Ordinance VI of 1959-Provisions of O. XXII, C. P. C. regarding abatement much less the period of limitation prescribed thereunder for bringing legal representatives on record, though have no specific application to such proceeding yet concept of abatement being based on accepted norms and on fundamental rule of judicial procedure will have application to such proceedings-No effort made to bring on record legal representatives of a deceased necessary party to proceeding under Ordinance VI of 1959-Controller, in circumstance, has no option but to pass order dismissing application under Ordinance as having abated.

(b) Appeal to Supreme Court-Abatement-Appeal against order of Settlement Authorities passed in favour of respondent Death of respondent pending appeal and appeal abating on account of legal representatives having not been brought on record within time-Contention that Settlement Authorities also being parties appeal did not abate as a whole-Plea, held, fantastic.

O. XXII, r. 4-AbatementAppeal-Failure to bring legal representatives of deceased respondent on record within prescribed time-Appeal on acceptance giving rise to decree inconsistent to one passed against deceased respondent-Appeal, in circumstances, would abate as a whole against all respondents.

(g) Civil Procedure Code (V of 1908), O. XXII, rr. 3 & 4Abatement-Partial abatement.

O. XXII, r. 9 (2)Abatement-Plaintiff not negligent in bringing legal representatives on record within time-Sufficient cause held out for not applying for setting aside of abatement in time-Court can set aside abatement-Counsel for plaintiff getting notice of death of one of defendants in previous suit but not informing his client-Omission not lack of duty, though amounting to lack of extra-vigilance

Rule of procedure of High Court where counsel practising previously different

Presumption of counsel's being misled-Presumption that knowledge of counsel is knowledge of plaintiff

Rebuttable

Abatement set aside in circumstances of case.

O. XXII, r. 4-AbatementAll legal representatives of deceased not brought on record within prescribed period of limitation-Suit abates.

Abatement-Party concerned not able to discover names of all legal representatives of deceased party-No abatement.

Abatement "Abatement"-Concept examined.