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Civil Petition for Special Leave to Appeal No. 428 of 1972, decided on 28th November 1972.
(On appeal from the judgment and order of the Lahore High Court, dated the 27th June 1972, in Civil Miscellaneous Nos. 2009 and 2158 of 1972, in Writ Petition No. 1713 of 1967).
Constitution of Pakistan (1962), Art. 98 and Civil Procedure Code (V of 1908),
O. XXII, r. 4‑Legal representatives of deceased respondents, in writ petition, not brought on record in time‑Petition rightly held by High Court to have abated.
Munir Ahmad, Advocate Supreme Court instructed by Tanvir Ahmad, Advocate‑ on‑Record for Petitioners.
Nemo for Respondents.
Date of hearing I 28th November 1972.
WAHEEDUDDIN AHMAD, J.‑
The petitioners, along with Hassan deceased, filed Writ Petition No. 1713 of 1967, on the 21st October 1967, challenging the consolidation proceedings and orders passed by the Consolidation authorities in village Bahuman, Tehsil Nankana, District Sheikhupura. There were as many as 58 respondents in the writ petition. During the pendency of the writ petition, Mureed respondent No. 8, Allah Ditta respondent No. 27, Mst. Bakhan respondent No. 32, Sarishta respondent No. 40, Allah Dad respondent No. 45 and petitioner Hassan died. It also appeared that Nawab respondent No. 9 and Lal respondent No. 47 had died even before filing the writ petition. Allah Ditta respondent No. 27 died on the 29th October 1969. Out of his legal heirs, Mst. Rehmat Bibi his daughter died on the 5th February 1970, and Mst. Allah Jawai another daughter died on the 22nd April 1970. The petitioners filed C. M. No. 6/72 under Order XXII, rule 4 and Order XXII, rule 9 and section 151, C. P. C. on the 9th March 1972, for bringing their legal representatives on record.
The petitioners further filed C. M. No. 2009/72 under Order I, rule 10, C. P. C. on the 12th May 1972, and prayed that since Nawab respondent No. 9 and Lal respondent No. 47 had died before filing the writ petition, their names be struck off and that the petitioners be allowed to implead their legal representatives in the writ petition. The petitioners also filed C. M. No. 2058 of 1972 for bringing on record the legal representatives of Hassan petitioner No. 12, Mureed respondent No. 8 and Allah Dad respondent No. 45. This application was moved on the 12th May 1972. Hassan petitioner died on the 20th June 1971, Mureed respondent No. 8 died on the 11th February 1968, and Allah Dad respondent No. 45 died on the 1st August 1968. In the application, the petitioners contended that they had been misled by the practice of the High Court that the penal provisions of Civil Procedure Code had no application in the matter of writ petition and it was under this genuine mistake that the petitioners could not file application in time for impleading legal heirs of the deceased persons. During the course of the hearing of the petition, it was discovered that the petitioners had not filed any application under section 5 of the Limitation Act. Accordingly, a learned Single Judge of the High Court, by order dated the 27th June 1972, dismissed the writ petition on the ground that it has abated as a whole and no case has been made out for setting aside the abatement. The petitioners seek permission to file an appeal against the said order of the High Court.
Mr. Munir Ahmad, learned counsel for the petitioners, has contended that the petitioners have made an oral application under section 5 of the Limitation Act and has also moved later an application under section 5 of the Limitation Act and, therefore, the learned Single Judge should have considered the question whether the delay should be condoned or not. There is nothing on the record to show that any oral application was made. So far as the application under section 5 of the Limitation Act is concerned, it was made after a very lone time. It was a belated one and the High Court was perfectly justified in disregarding it. On merits, the petitioners have no case. Admittedly, the legal representatives of the deceased were not brought on record in time and the writ petition was filed against dead persons. In these circumstances, the writ petition has abated and the suit against the dead persons is a nullity. There is no force in the petition. The petition is dismissed.
Leave refused.
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