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Petition for Revision No. 250/50, decided on 18th October, 1952, against the judgment and decree of Abdullah Jan Mirza, Senior Sub‑Judge, Mardan, dated 23rd November 1950.

O. XXII‑Provisions do not apply to Revision petitions‑Such petitions cannot be dismissed on ground of abatement. Provisions of Order XXII of the Civil Procedure Code are not applicable to revision petitions, and revision petitions cannot, therefore, be dismissed on the ground of abatement.

[Case‑law referred to.]

Kazi Abdul Wahab, for Petitioners.

Muhammad Ali, for Respondents Nos. 1‑6 and 8.

‑Pordil and four others brought a suit against Barkat and seven others, for possession of a house situated in the area of Naudeh village. Stated briefly, their case was, that the house in dispute bore No. 125 in the Khana Shumari Register of Naudeh village prepared in 18‑10, and in the same Register it was shown to be owned by their predecessor in interest, Ziarat Klan. Subsequently, it was occupied by the first seven defendants as tenants‑at‑will under the plaintiffs on payment of Khakshora and other contrary dues. Eviction was sought because the first seven defendants unlawfully claimed to be in possession as mortgagees on behalf of Abdul Haq (D. 8).

The defendants inter alia contended that the house in dispute belonged to Abdul Haq (D. 8), and not to the plaintiffs, that it was not the same house as was numbered 125 in the Khana Shurnari Register of 1870, and that the first seven defendants were entitled to remain in possession as mortgagees on behalf of defendant No. 8.

The trial Judge, after recording such evidence as the parties wished to adduce, rejected the defence contentions, and decreed the suit, but directed the parties to bear their own costs.

Abdul Haq (D. 8) preferred an appeal to the Court of the Senior Sub‑Judge at Mardan. The Senior Sub‑Judge, after considering the material on the record carefully, found that the plaintiffs had failed to prove that the house in dispute was owned by them or that it was the same as was numbered 125 in the Khana Shumari Register of 1870, and shown to belong to their predecessor‑in‑interest Ziarat Khan He, therefore, reversed the judgment and decree of the trial Judge, and dismissed the plaintiff's suit leaving the parties to bear their own costs.

The plaintiff's other than Mst. Zinaba, considering them selves aggrieved with the decision of the Senior Sub‑Judge, came up on revision to this Court. The revision petition came up for hearing in the first instance before one of us when a preliminary objection on behaif of the opposite party was raised to the effect that the petition had abated by reason of the fact that the application for bringing the legal representatives of the deceased‑respondent, Mst. Shakhai, had been made more than ninety days after her death. As on the question involved, namely, whether the provisions of Order 22 of the Civil Procedure Code applied to revision petitions, there seemed to be a conflict of opinion between the various High Courts, it was referred to the Bench for decision.

The authorities which have come to our notice and which are relevant and material to the decision of the question referred to the Bench are Noomal Tourmal v. Tarachand Sobhraj and another (A I R 1933 Sind 200.) ; Nawab Syed Kazim Hussain v. Seth Pearey Lal (A I R 1939 Oudh 277.) ; Khuda Bua Khan v. Maha Nand Tewari and another (A I R 1948 Oudh 84.) ; Hafasji Ibrahim and others v. Mangalgirji Mathragirji (A I R 1946 Bom. 201.) ; Khan Muhammad Saadat Ali Khan v. Administrator Corporation of City of Lahore (A I R 1949 Lah, 186=P L D 1949 Lah. 541.) ; Pendyala Basawanj anayulu and others v. Lingamullu Ramalingayya (A I R 1938 Made. 1115.) and Bhajju Lal and others v. Bechey Singh and others (A I R 1950 All. 665.). Now, before dealing with these cases, we should like to observe that Order 22 of the C. P. C., applies in terms to suits and appeals but it makes no reference whatsoever to revision petitions. The view taken in A I R 1953 Sind 2C0 is, that the provisions of Order 22 of the C. P. C., about the abatement of suits and appeals do not apply to applications for revision. The same view was taken in A I R 1939 Oudh 377, and it teas held in that case that there was no prevision. of law laying down procedure for substitution in place of a deceased party in a revision application for the obvious reason that the remedy provided by section 11:5 of the C. P. C., was absolutely, discretionary with the High Court, and the law, therefore, had not prescribed any rule of limitation for implead ing a representative of a deceased party in a revision applica tion. A similar view was expressed in A I R 1948 Oudh 84. In the Bombay case, though it related to a revisional appli cation to the Collector it was held that Order 22 of the C P. C., did not apply to revision applications under section 115 of the C. P. C ,and the view taken in A I R 1939 Oudh 277 was approved. In the Lahore case, a Full Bench, after review ing all the relevant authorities on the point, held that where a party going in revision died pending the revision petition, and an application was made by his legal representatives to be brought on the record after the expiry of the period of ninety days, the petition for revision could not be dismissed on the ground of abatement. A contrary view was, however, taken by Stodart, J. in A I R 1938 Mad. 115. He held the view that Order 22, rules 3 and 4 of the C. D. C., were applicable to proceedings under section 115 of the same Code, and that an order passed by a High Court on a petition under section 115 of the C. P. C., in ignorance of the fact of the death of the petitioner more than ninety days previously, was one made without jurisdiction and was a nullity. The Madras case was considered both in A I R 1946 Bom. 20 , and A I R 1949 Lah. 186, and with due deference to Stodart, J. his view was not found to be the correct view, because he did not seem to have considered the decision of their Lordships of the Privy Council in 22 I A 44, laying down that the proceedings spoken of in section 141 of the C. P. C., referred only to original matters in the nature of suits such as proceedings in probates, guardianships and so forth, and also because with due respect to the learned Judge he did not consider whether revisional proceedings under section 115 of the same Code could be called an original matter in the nature of a suit. A I R 1950 All. 665 lays down that though the pro visions of Order 22 of the C. P. C., do not in terms apply to revision applications, still if the legal representative of a deceased person is not brought on the record within a reason able time, the application for revision abates unless good cause for the delay is shown.

We think that the better view is the one taken in A I R 1933 Sind 200 ; A I R 1939 Oudh 277 ; A I R 1948 Oudh. 84 ; A I R 1946 Bom. 201, and A I R 1949 Lah. 186 and with them we find ourselves respectfully in agreement. We accordingly hold that the provisions of Order 22 of the C. P. C., are not applicable to revision petitions, and that this revision petition, cannot, therefore be dismissed on the ground of abatement.

We, however, think that the petitioners' case must fail on its merits. The burden of proving that the house in dispute belonged to the plaintiffs, or that it corresponded to the house which was numbered 125 in the Khana Shumari Register of 1870 and shown in the same register as belonging to their predecessor‑in‑interest, Ziarat Khan, lay heavily on them. We have read the material on the record and we are satisfied that they have failed to discharge this burden. Similarly, it was up to them to show that the first seven defendants were in possession as their tenants on payment of Khakshora and other customary dues. This we think, they have failed to show. On the other hand, one Jabbar, who had been in possession of the suit house for about seventeen years prior to Barkat, has affirmed that he had been in possession as mortgagee on behalf of the defendant‑respondent, Abdul Haq, and that during the long period that he had remained in possession he had never recognised the plaintiffs as his landlords, nor bad he paid any Khakshora to them. It, therefore, appears that the suit of the plaintiffs has been rightly dismissed by the learned Senior Sub‑Judge. In any case, it is not shown that the learned Senior Sub‑Judge has committed any illegally or material irregularity so as to incline us to interfere with his decision in revision. For the reasons given above, we decline to interfere with the judgment and decree of the Senior Sub‑Judge, and dismiss this petition with costs.

Order announced.

A. H Petition dismissed.

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