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Civil Petition for Special Leave to Appeal No. 15‑P of 1968, decided on 25th March 1968.
(On appeal from the judgment and order of a Division Bench of the High Court of West Pakistan, Peshawar Bench, Peshawar, dated the 1st February 1968, in Miscellaneous Applications Nos. 501, 502 and 2 of 1968).
O. XXII, r. 4‑Abatement of appeal‑Deceased respondent at time of his death residings in a village‑Abatement of appeal, in circumstance, set aside by High Court‑Order, held, proper‑Special Leave to Appeal refused by Supreme Court.
Muhammad Yunis Shah Mian, Advocate Supreme Court instructed by Noor Ahmad Khan, Attorney for Petitioners.
Nemo for Respondent.
Date of hearing : 25th March 1968.
This petition for special leave to appeal arises under the following circumstances.
A suit filed by Haji Fateh Khan, a predecessor‑in‑interest of the petitioners, was decreed against the Government of West Pakistan for a sum of Rs. 1,02,499. During pendency of the appeal filed by the Government against the aforesaid judgment and decree the plaintiff‑respondent Haji Fateh Khan died on 28th May 1965. On 28th October 1967, the process server reported his death and as soon as the Additional Advocate‑General came to know of it he filed on 20th December 1967 two applications, one for setting aside the abatement after condoning the delay and the second for bringing the legal representatives of the deceased respondent on the record. He again filed a third petition on 27th December 1967 to implead the remaining legal representatives of the deceased respondent. A Division Bench of the High Court being satisfied that the respondent lived in a village and it was not possible for the department concerned to know of his death, condoned the delay and after setting aside the abatement brought the legal representatives on the record. The heirs and legal representatives of the said deceased respondent seek to challenge the above order of the High Court.
The learned counsel has, however, failed to satisfy us that in the facts and circumstances of the case the learned Judges of the High Court were not justified in setting aside the abatement or that they did not exercise their discretion in a proper or judicial manner. Hence, we see no ground for interference and dismiss this petition.
Leave refused.
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