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Civil Appeal No. K‑10 of 1968, decided on 30th May 1968.

(On appeal from the orders of the High Court of West Pakistan, Karachi Bench, Karachi, dated the 18th April 1966, the 23rd May 1966, and the 19th September 1966, in Second Appeal No. 107 of 1963).

O. XLI, rr. 11 (2), 17 (I) & 19‑Appeal dismissed for non‑prosecution ‑Application for restora tion under O. XLI, r. 19‑High Court on date of hearing application for restoration of appeal coming to know that appellant was dead, dismissing application on ground that since sole appellant was dead and there being no application for bringing legal representatives on record appeal stood abated and, therefore, there was no point in restoring appeal‑Fact however that in fact there were two appellants one still alive and there was also allegation that application for bringing legal representatives on record had been filed but same was missing from records‑High Court failing to advert to these facts‑Appeal to Supreme Court, in circumstance, accepted and case remitted to High Court for disposal after proper investigation.

Nathulal J. Bhambani, Advocate Supreme Court instructed by Abdul Karim, Attorney for Appellant.

Masood Ahmad Khan, Advocate Supreme Court instructed by M. B. Khizar Tamimi, Senior Attorney for Respondent No. 1.

Nemo for Respondent No. 2.

Date of hearing : 30th May 1968.

This appeal, by special leave, is directed against three orders, passed on the 18th of April 1966, the 23rd of May 1966, and the 19th of September 1966, in respect of Second Appeal No. 107 of 1963, by a learned Single Judge of the High Court of West Pakistan, Karachi Bench. The relevant facts are these;--

By the first order, passed on the 18th April 1966, the learned Single Judge dismissed the appeal for non‑prosecution, on the ground that the appellant and his counsel were called and were absent. Then an application was made, under Order XLI, rule 19 of the Code of Civil Procedure, for restoration of the appeal, on the ground that the Advocate of the appellants, Gulab and Illahi Bux, had not received notice before the date of hearing fixed, namely, the 18th of April 1966. On the 23rd of May 1966, this application was taken up for consideration by the learned Single Judge. He noted the contentions raised, on behalf of the appellants, by Mr. Muhammad Yusuf Narejo, who was apparently then engaged on their behalf. He observed that the date on the acknowledgement receipt of the notice sent to the Advocate was not clear. He held, however, that there would be no point in restoring the appeal. He attributed a statement to Mr. Narejo, to the effect that the sole appellant had died on 14‑12‑63 and no application for bringing the legal representatives on record had been made. There was merely an affidavit, dated the 9th of October 1964, by Mir Muhammad, stating that he was one of the heirs. The learned Judge remarked that even if Mir Muhammad had any locus standi in the matter, the appeal would still abate, as no application was made in time for impleadings the legal representatives of the deceased appellant. He, therefore, saw no point in restoring the appeal and dismissed the application.

These proceedings were followed by an application under Order XLVII, rule 1, read with section 151 of the Code of Civil Procedure, seeking review of the earlier orders. In the alter native, it was prayed that the abatement under Order XXII should be set aside or, as a third alternative, a certificate be granted for a Letters Patent Appeal. On the 19th of September 1966, the learned Single Judge, in the presence of Mr. Nathu Lal Bhambhani for the appellants, held that there was no case for review. The learned Judge did not accept the statement that an application for bringing the legal representatives on record had been filed on the 17th of February 1964, as alleged. He was disinclined to accept that fact on the ground that if it was true, it should have been brought to his notice on the earlier date. The petition was consequently dismissed.

Special leave to appeal was granted, as it was contended that due weight had not been given to the affidavits placed on the record in support of the allegations that an application for impleading the legal representatives of Gulab, deceased, had been drafted by Mr. A. G. Talpur, his counsel, and had actually been filed on the 17th of February 1964, along with an affidavit, through his clerk, that that application and affidavit had been probably misplaced in the High Court office and were no longer traceable and that when this fact was discovered, another applica tion was drafted with the help of Mr. Yusuf Narejo, along with an affidavit, on the 9th October 1964, for the same purpose. Again, it was said in the relevant affidavit that the application was missing from the High Court record but the affidavit was still there. No enquiry had been made into the truth or otherwise of the allegations made in the affidavits in this regard. It was also pointed out that the learned Single Judge fell into error in assuming that Gulab was the single appellant in the High Court. There was another appellant, Illahi Bux, who was still alive and his name duly figured in the heading of the appeal which was disposed of by the learned Single Judge. It was consequently urged that the dismissal of the appeal, the refusal to restore it and the dismissal of the review petition were not proper.

A report was called for from the High Court about the facts alleged, in order to find out whether in the High Court record there was any indication that two applications had been moved for impleading the legal representatives of Gulab, deceased, in this case, and as to when a notice of the date of hearing of the appeal had been issued to Mr. Talpur, who represented the appellants initially. The report sent by the High Court is at page 30 of the record. It does not completely cover the points raised in the appeal. It only mentions that the notice of hearing of the appeal was issued to Mr. A. G. Talpur, who practices at Khairpur, for the 18th April 1966. It was further reported that Mr. Narejo had filed his Vakalatnama with the application, under Order XLI, rule 19 of the Code of Civil Procedure, on the 12th of May 1966. The original notice and acknowledgement of Mr. Talpur was forwarded to this Court. On this acknowledge ment receipt, the date seems to have been interfered with and is not now clearly legible. It may be possible to get the corres ponding copy from the postal authorities to resolve this difficulty. The report of the High Court also states that there was no indication that applications and affidavits as alleged were filed in the Registry. It is further mentioned that notice for the date of hearing was, as a matter of practice, sent to the Advocate whose office was outside Karachi, one week or so prior to the date of hearing. Mr. Talpur's office was said to be at Khairpur Mirs and that of Mr. Narejo at Saughar.

In the report it is not made clear as to whether there was a practice in the Registry to enter applications, made for impleading legal representatives, in any official record and whether there could be any evidence of the receipt of fees for attestation of affidavits by the official concerned in the Registry. It is suggested that there would be counterfoil receipt for the fee in the High Court Registry.

After hearing Mr. Nathulal Bhambhani, for the appellant, and Mr. Masood Ahmad Khan, for respondent No. 1, we consider that the disposal of the second appeal in the High Court left much to be desired. On the date that it was dismissed for non‑prosecution it was alleged, on behalf of the appellants, that their counsel had not received due notice before hand. This allegation was not properly enquired into by the learned Single Judge, when an application for restoration of the appeal was made. On the contrary, he proceeded to dismiss that application on the ground that, in any event, on the death of the sole appellant, the appeal had abated. He did not advert to the fact that there was another appellant in the picture and the question may well arise whether the appeal had abated as a whole or survived to the extent of the interest of the appellant, Illahi Bux, even if, as was assumed, no application within time had been preferred for bringing on record the legal representatives of Gulab, deceased. Moreover, the allegations made in the various affidavits placed on record, or behalf of the appellants, called for an enquiry as to whether, in fact, two applications had been moved in the Registry with affidavits, for impleading the legal representatives of Gulab or not. One of the affidavits has been attested by an official of the Karachi Bench Registry and he could have been called and examined as to under what circum stances he had attested the affidavit which is undoubtedly on the record. The various applications made could not have been dis posed of without an investigation of the relevant facts. Unfortunately this was not done.

The material before us is insufficient for a proper adjudica tion of the points raised here. In the circumstances, we are constrained to allow the appeal and set aside the impugned orders of the learned Single Judge. We remit the case back to the High Court with a direction that an enquiry into the allegations made by the appellant should now be held with reference to any records that may be available in the High Court Registry or from the postal authorities and a fresh order be passed in accordance with law. The costs will be costs in the cause.

Appeal accepted.

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