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Civil Petition for Special Leave to Appeal No. 254 of 1967, decided on 5th October 1967.
(On appeal from the judgment and order of the High Court of West Pakistan, Bahawalpur Circuit, dated the 23rd December 1966, in R. F. A. No. 14 of 1944/BWP).
O. XXII, rr. 3 & 11 Abatement of appeal Legal representatives of number of deceased plaintiff /respondents not brought on record on ground that they had no independent title and they stood or fell with plaintiff him self‑Question whether High Court was right, in circumstance, to hold that owing to abatement for want of legal representatives of the deceased qua them the whole appeal fell through‑Special Leave to Appeal granted by Supreme Court to consider question.
Sh. Ghias Muhammad, Senior Advocate (Ch. Nazir Ahmad Rana, Advocate Supreme Court with him) instructed by Siddiq & Co., Attorneys for Petitioners.
Nemo for Respondents.
Date of hearing : 5th October 1967.
‑In this case the High Court, has dismissed the appeal of the petitioners on the ground that it was improperly constituted for want of some necessary parties. Those necessary parties were said to be the legal representatives of certain parties who had died and whose representatives were not brought on the record within the time allowed by law. The petitioners seek special leave to appeal from the order of the High Court.
Mr. Ghias Muhammad on behalf of the petitioners has pointed out that out of 9 persons, whose representatives are not said to be on the record, three had, according to the finding of the High Court itself, died during the pendency of the suit in the original Court, namely, Buland, Dhannu Mal and Muhammad Musa. The petitioners had not brought the legal representatives of Moti, Abdul Wahid and Abdullah on record, on the plea that they were not necessary parties. It is stated by Mr. Ghias Muhammad that these persons were merely cultivators under Shaikh Mehr Din, deceased, who had an agreement to sell in his favtour, given by Qazi Mehr Din, deceased plaintiff, and the predecessor‑in‑interest of the respondents. They had no independent right to retain the property. Similarly, he argues that Palya, Ali Muhammad and Abdur Rahman were also mere cultivators under Shaikh Mehr Din and could not set up an independent title. They stood or fell with Shaikh Mehr Din himself. It is also of some significance to note that tile deceased Shaikh Mehr Din himself had given up Moti, Ali Mohammad Abdur Rahman and Abdullah as parties, in the appeal which he filed in this Court at one stage and which resulted in case being remanded to the High Court for re‑decision of the first appeal. He had also not impleaded Palya in the appeal in this Court. The legal representatives of the contesting defendants, namely, Shaikh Mehr Din, Karam Elahi and Mohammad Din, and of Qazi Mehr Din plaintiff are all on the file according to learned counsel. In the circumstances it is contended that tile order of the High Court holding that owing to abatement for want of representatives of the deceased parties qua them, the whole appeal fell through, was erroneous.
Leave to appeal is granted to consider this question. The petitioners will furnish security for costs in the sum of Rs. 2,000 before the appeal is heard. The stay of execution of me decree will continue meanwhile, on the same terms as those mentioned in the ad interim order.
Leave granted.
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