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Letters Patent Appeal No. 145 of 1961, decided on 3rd May 1965.

Art. 98 and Civil Procedure Code (V of 1908), Ss. 141, 115, 9, 151 & O. XXII, r. 4‑Writ petition‑Provisions of O. XXII, r. 4, C. P. C. not applicable-- Omission to implead legal representatives of deceased respondent within time specified in Art. 177, Limitation Act, 1908‑Does not result in abatement of writ petition‑Construction of S. 141, C. P. C. in relation to writ petition‑All enabling provisions of C. P. C. applicable to trial of writ petition but not those laying down penalties for failure to comply with those provisions‑Provision of S. 151 to be invoked for meeting situation‑Proceedings in writ not in pari materia with suit under S. 9 but more akin to proceedings under S. 115, C. P. C.‑Limitation Act (IX of 1908), Art. 177‑Laws (Continuance in Force) Order (1 of 1958), Art. 2 (4).

Saddat Ali Khan v. Administrator, Corporation of City of Lahore P L D 1949 Lah. 541 and Tariq Transport Co. v. Sargodha Bhera Bus Service P L D 1958 S C (Pak.) 437 ref.

M. Fazal‑e‑Ghani for Appellants.

M. Aslam Khan for Respondents.

Dates of hearing: 27th, 28th and 29th April 1965.

‑Chand (deceased) and two others were temporary allottees of some agricultural land in Chak No. 51/J. B., Tehsil and District Lyallpur. Long after their claim was verified and the allotment confirmed, it was discovered that Khushi Muhammad, Patwari of that Chak, had made certain interpolations in the settlement record, whereupon the allotments of agricultural land in the entire Chak were cancelled, but later on restored in some cases while in others the right‑holders were required to file duplicate claim forms. But in the case of Chand and others the Deputy Rehabilitation Commissioner, Lyallpur; by order, dated the 31st of July 1956, neither allowed them to file duplicate claim forms nor directed that pending the re‑verification of their claims the land in their temporary allotment should be reserved for them. Later on, that land in the allotment of Chand etc. was allotted to one Abdul Ghaffar, a sitting allottee of another village, namely, Chak No. 219/R. B., Tehsil and District Lyallpur.

2. Having failed to receive redress from the Rehabilitation Authorities, Chand and others filed Writ Petition No. 526/R of 1959, under the Post Proclamation (Continuance in Force) Order I of 1958, and besides the Rehabilitation Authorities impleaded Abdul Ghaffar as respondent in the case. Later on, it transpired the said respondent had died before the institution of the writ petition; whereupon his legal representatives namely, Mst. Sardar Bibi (widow), Mst. Rashida Begum, Mst. Irshad Begum and Mst. Kaneez Fat' ma (daughters) and Abdul Aziz (brother) were brought on the record.

3. During the pendency of the writ petition Mst. Kaneez Fatima died, whereupon an application under Order XXII, rule 2, Civil Procedure Code, was moved by Chand and others for striking off her name from the list of respondents as all the heirs she had were already respondents in the case. The application was opposed and by order, dated the 8th May 1961, Masud Ahmad, J., declared that as the time provided for impleading the heirs of the deceased respondent had already expired the writ petition stood abated under Order XXII, rule 4, Civil Procedure Code.

4. The aforesaid order is in appeal before us and the ground urged in support of it is that as Mst. Kaneez Fatima who had not married during her lifetime left no heirs other than her mother and sisters who were already impleaded' as respondents in the writ petition the provisions of Order XXII, rule 4, C. P. C. were not attracted. It appears that this aspect of the case was not brought to the notice of the learned Single Judge and we would have allowed this appeal on this short ground but another complication has arisen. Abdul Aziz (respondent) died in February 1964, and on being informed of this fact the appellants' moved for impleading his legal representatives in January 1965, i.e., long after the period of 90 days prescribed in Article 177 of the Limitation XI. This led to enlarging the scope of the appeal and a more vital issue was raised viz., the applicability of Order XXII, rule 4, C. P. C. to writ petitions. The procedure for hearing of writ petitions was not embodied in the Laws (Continuance, in Force) Order [President's Order 1 of 1958] nor does Article 98 of the Constitution contain any provisions in this behalf. Rule 16, Chapter I‑C of the High Court Rules and Orders, Volume V, provides that the rules contained in that Chapter "shall apply to all proceedings of a civil nature other than suits and appeals to which Order XXII of the Code of Civil-- Procedure is applicable". These rules and orders have been framed in pursuance to power conferred on the High Courts by sections 122 and 129, C. P. C. The first‑named section is in general terms and provides that High Courts may from time to time after previous publication make rules regulating their own procedure and the procedure of the civil Courts subject to their superintendence and by such rules annul, alter, or add to all or any of the rules in the First Schedule. The second section makes specific provision that notwithstanding in the Code any High Court may make such rules not inconsistent with its Letters Patent to regulate its own procedure in the exercise of its original civil jurisdiction as it shall think fit. The section originally applied to Chartered High Courts, namely, the High Court of Judicature at Calcutta, Madras and Bombay, but since Independence it has been amended and the word Chartered' dropped from it, though it still exists in the title of the rule. This change has been noticed to bring out that as the above‑named three High Courts alone had original civil jurisdiction section 129, C. P. C. could not be made applicable to High Courts which like the High Court of West Pakistan (other than Karachi Bench) do not have original civil jurisdiction. The scope of the rule‑making power of this Court is thus largely confined to the terms of section 122, C. P. C. viz., "make rules regulating their own procedure". In doing so it may "annul, alter or add to all or any of the rules in the First Schedule". The procedure for making rules is laid down in the succeeding sections 123 to 128. The High Court may, therefore, make rules similar to those in Order XXII, C. P. C. and provide for abatement as under rule 4, but rules in that behalf, have not been framed so far.

5. The learned Single Judge has relied on Rule 16, Chapter I‑C of the High Court Rules and Orders, Volume V, which has been reproduced above. The qualification in the concluding part of the rule "to which Order XXII of the. Code of Civil Procedure is applicable" makes it apparent that Order XXII, rule 4, C. P. C. does not apply by its own force to the trial of writ petitions. And its enumeration in Chapter I‑C, Volume V of the High Court Rules and Orders does not have the effect of making it applicable to writ petitions. The only other provision in the Code to which we may turn for the purpose is section 141, which provides that the procedure in the Code in regard to suits shall be followed as far as it can be made applicable in all proceedings in any Court of civil jurisdiction. Particularisation of "any civil Court of civil jurisdiction" prima facie excludes High Courts from the purview of section 141,‑particularly when we know that the power to make rules for regulating their own procedure generally and in exercise of their original civil jurisdiction has been separately conferred on them in Chapter X, sections 122 and 129, C. P. C. Assuming, but without specifically holding, that a High Court is included in "any Court of civil jurisdiction" the, matter in hand still remain unresolved.

6. The first point to be considered is what is intended to be meant by "procedure" in the opening part of section 141. Does, it include the whole body of the Code or only those provisions which are procedural and not in the nature of substantive law, such as provisions for filing of appeals in the High Court (sections 96 and 100, C. P. C.) and the power to review a decree' or order on grounds specified in Order XLVII, rule 1, C. P. C. It is beyond dispute that these provisions in the Code are not applicable to "all proceedings in any Court of civil jurisdiction". The next question to which we may turn, is: do the provisions in the Code, which impose penalties e.g., abatement of a suit for failure to implead the legal representatives of a deceased defendant etc., the bar to file a fresh suit if a suit is withdrawn without the permission of the Court under Order XXIII, rule 1 and similar other provisions, apply to proceedings other than suits Our answer is in the negative and the reasons which have appealed to us in this behalf are that a legal right vested in an aggrieved person can be taken away either by the provisions contained in the statute which conferred that right or by the provisions of any other law which are specifically made applicable to the determination and enforcement of the right. The scope of procedure' in section 141, C. P. C. may not, therefore, be enlarged so as to include technical provisions of the Code. Our approach to the construction of section 141, C. P. C. is that all the enabling provisions of the Code are applicable to the trial of writ petitions but not those which lay down certain penalties for failure to comply with those provisions. It may be said how are Courts to enforce those provisions if they are bereft of the power to impose penalties for non‑compliance) Such a power, however becomes available under section 151 of the Code which provides-‑

"Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders a may be necessary for the ends of justice or to prevent abuse of the process of the Court."

7. Numerous authorities were cited by the learned counsel for and against the proposition discussed above, but we will content ourselves by referring to only one of them. In Saadat Ali Khan v. Administrator, Corporation of City of Lahore (P L D 1949 Lah. 541), a Full Bench of this Court negatived the contention that by virtue of sections 117 and 141, C. P. C. the provisions of Order XXII, "rule 4, C. P. C. become applicable to revision petitions under section 115, C. P. C. After an exhaustive survey of the authorities of the various High Courts in the sub‑continent bearing on the point, Sir Abdur Rehman, who delivered the judgment in the case, expressed the view that:

"This brings me to the third reason why in my opinion the provisions of Order XXII cannot be held attracted to revision proceedings: The High Courts have the powers to deal with revisions under section 115 of the Code of Civil Procedure which reads:‑

115. The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such Subordinate Court appears‑

(a) to have exercised a jurisdiction not vested in it by law, or

(b) to have failed to exercise a jurisdiction so vested, or

(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity,

the High Court may make such order in the case as it thinks fit‑

These powers are limited and can only be exercised in the three cases mentioned therein and that only ex debito justitiae. If the High Court decides to act under section 115 suo motu, can it legitimately contend that it would have no power left to do so only because a party to the case had died either before or even after the date on which it was decided to take action under this section I do not think so. If the High Court finds injustice to have been done, should it be allowed to remain perpetuated simply because one of the parties to the case had happened to die before or after the order calling for the record of the case had been passed by the High Court By whom, moreover, is an application to bring the deceased's legal representatives on the record to be made Surely Dot by the Court. It could have ordered them to be brought on the record but to that order Article 176 of the Limitation Act is not applicable. It only applies to applications. This was a. simple case. But what about petitions for revision which have been filed by private individuals They have no legal right to be heard in support of such applications‑although as a matter of prudence they usually are‑and if the Legislature had merely' intended private individuals or parties to a case to draw the attention of the High Court as the words of section 115, Civil Procedure Code seem to me to indicate, it could not be prevented from making the legal representatives of a deceased petitioner or respondent consequent either on one death or on a "series of deaths as parties to the proceedings in revision. For to hold that it had no such power would be tantamount to holding that it cannot do justice even in the limited number of cases referred to in section 115 and even when it is clearly of the view that it should interfere in order to do complete justice between the parties or their legal, representatives as the case may be within e terms of that section."

The learned counsel for the respondents relied on the following sentence which appears at page 545 of the Report: ‑

"In my view, the section is so drafted as to enable a Court toy apply the procedure in regard to suits to such proceedings as are in pari materia with suits and thus original in character,"

and it was urged that proceedings' in writ petition are in pari materia with suits. The paragraph in which this sentence occurs read as under:‑

"Nor is the contention advanced by learned counsel for the respondent that section 141 of the Code of Civil Procedure applies to petitions for revision possessed, in my opinion, of any force. That section applies the procedure provided in the Code in regard to suits the omission of the word appeal' is significant to all proceedings in any Court of civil jurisdiction. In my view, the section is so drafted as to enable a Court to apply' the procedure in regard to suits to such proceedings as are in pari materia with suits and thus original in character. A revision is very much unlike a suit although it may share many common features with an appeal. The procedure provided for suits would be mostly inapt and inappropriate to proceedings to revision. Had the Legislature intended td lay down any particular procedure as regards revisions I would have expected to find it somewhere in the proximity of Order XLVI, (Reference) or Order XLVII (Review) or in Order XLI, which relates to appeal 'The view that I have formed as to the construction of section 141, derives support to some extent at least from the observations of their Lordships of the Privy Counsel in Thakur Prasad v Faqir Ullah (I L R 17 All. 106 at p. 111), where they observed:‑

The proceedings spoken of in section 647 (of the old Code which was replaced by section 141 of the Code: in 1908 and which if anything was more general than the present section) include original matters in the nature of suits such as proceedings in Probates, guardianships and so forth and do not include executions.

I am fully aware that their Lordships were in that case called upon to decide whether section 647 applied to executions‑but in holding that it did not, their Lordships were called upon to construe the section and indicated what it was in their view intended to be applicable to and their observations can, therefore, be legitimately relied upon."

What is meant by proceedings in pari materia with suit is indicated by the instances cited by the, Judicial Committee, namely "proceedings in probates, guardianship and so forth'. We are therefore, of the view that .the jurisdiction conferred on High Courts presently by Article 98 of the Constitution and formerly by the Post Proclamation (Continuance in Force) Order I of 1958 is not. pari materia with suits. In the present case the prayer is for' issuance of an appropriate writ which in the context means a writ of certiorari. In Tariq Transport Co. v. Sargodha‑Bhera Bus Service (P L D 1958 S C (Pak.) 437), while examining the scope of a writ of certiorari, their Lordships observed that if the order made is illegal in the sense that the Tribunal was not competent to make it or on the fact found the order could not have been made or an order should have been but has not been made a writ of certiorari will issue. This aspect of the writ jurisdiction‑is, therefore, more akin to proceedings under section 115, C. P. C., than in a suit under section 9.

8. The provisions of Order XXII, rule 4, Civil Procedure Code, thus, do not apply to‑writ petitions and the omission on the part of the appellants to implead the legal representatives of Abdul Aziz within the time specified in Article 177 of the Limitation Act did not result in the abatement of the appeal. No proceedings have yet been taken in the appeal to the prejudice of any party with the result that without affecting their rights the legal representatives of Abdul Aziz may be now brought on the record. The application for impleading the legal representatives of Abdul Aziz deceased is accordingly allowed. In this respect, it is also to be borne in mind that the share of Abdul Aziz in the estate of Abdul Ghaffar was quite insignificant as compared to the share of his widow and daughters, who have been duly represented in the writ petition as well as in the appeal. Their interest also does not clash with the, interest of the heirs of Abdul Aziz. In fact, the son of Abdul Aziz who is the only heir, was present during the hearing of the appeal, and instructed the counsel for Mst. Sardar Bibi and others. The appeal is, accordingly, allowed and it is directed that Writ Petition 526/R of 1959, be restored to its original number and laid before a Division Bench for disposal on an actual date within this month. Costs of these proceedings will abide the final order in the case.

K. B. A. Appeal accepted.

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