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In re : Civil Appeal No. 3 of 1968, decided on 30th May 1974.

(Application under Order V, rule 2 of the Supreme Court Rules, 1956 for reconsideration of the order dated 24‑5‑1973, passed by Mr. Justice Waheeduddin Ahmad, in chambers).

‑‑ O. V, r. 2‑Review‑Condonation of delay‑Delay already con doned as respects one appellant‑Delay as respects another appel lant (petitioner) also condoned to allow appeal to proceed as a whole and not partially.

Saeed Akhtar, Advocate Supreme Court instructed by Tanvir Ahmad, Advocate‑on‑Record for Petitioner.

Fazl‑e‑Mahmood, Advocate Supreme Court instructed by Muhammad Nazar Khan, Advocate‑on‑Record for Respondents.

Dates of hearing : 28th February and 1st March 1974.

.‑This is an application under Order V, rule 2 of the Supreme Court Rules, 1956, by Syed Muhammad Zaki, one of the two appellants in Civil Appeal No. 3 of 1968, praying for a re‑consideration of the order dated 24‑5‑1973, by one of us, dismissing the petitioner s applica tion under Order XVI, rule 9, for impleading the legal representatives of Maqsood Ali deceased the principal respondent in the appeal. The application was dismissed on the ground that it was beyond time by 286 days and no cause was shown for condoning this long delay, and, therefore, qua the petitioner, the appeal had abated. By the same order, however, delay was condoned as respects the other appellant, namely. Syed Shafqat Ali (respondent 3 herein) so that the said appeal proceeds on merits so far he is concerned:

From the evidence produced in the proceedings, in the application for impleading the legal representatives, it stands clearly established that Maqsood Ali Khan, respondent. died on 15‑4‑1970, at 47, Montgomery Road, Lahore, which incidentally is the subject‑matter of the dispute in appeal between the parties. The petitioner's family lives on the first floor of the same house, while that of the deceased on its ground floor. The prescribed period of ninety days for application for the relevant purpose expired on 14‑7‑1970, but the petitioner and his co‑appellant did not apply until 26‑4‑1971 for bringing the legal representatives on the record and for condonation of delay. During the pendency of the proceedings in that application, another application was moved on 1‑5‑1971 for setting aside the abatement.

The petitioner's case is that since his retirement in 1967, he himself took up his residence in Vehati in Multan District, where he has built a house and manages his land, and all these years, he never visited Lahore or his family until towards the end of March 1971, when he was admitted in the Mayo Hospital, Lahore, as indoor patient for being operated upon for cataract. He was discharged from the hospital on 6‑4‑1971, and stayed with his family in the house in dispute when on 25‑4‑1971 Manzoor Ali Shah visited him to inquire about his health and in the course of conversation he casually mentioned about the death of Maqsood Ali Khan. On the basis of that information, the petitioner filed an application on 26‑4‑1971, for bringing the legal representatives of the deceased respondent on record. This incidentally was the date on which the appeal was posted for hearing.

It is in evidence that the petitioner used to receive his pension every month from Lahore Treasury, though he has tried to explain that his son Abroad Shah used to draw the pension on his behalf. On the other hand, evidence was produced to show that the petitioner personally received his pension from Lahore Treasury on 16‑4‑1970 and 16‑7‑1970. It is not the petitioner's case that while on visit to Lahore, be would be staying elsewhere than with his family in the house in dispute, in which the deceased‑respondent also lived on the ground floor.

The fact of the matter appears to be that when the appeal was posted for hearing during the week commencing on 26‑4‑1971, and the petitioner's Advocate‑on‑Record informed him of the same, at his Lahore address, he realized his omission to implead the legal representatives of the deceased, and to avoid the consequences of his failure, he could not invent a better excuse than tack of knowledge. But in the above circumstance, it would be straining one's credulity to a breaking point to ask him to believe that the petitioner was not aware of the death of the respondent before 25‑4‑1971.

It was argued by the petitioner's learned Counsel that rule 9 of Order XVI merely prescribes limitation for the relevant purpose. The rule does not expressly provide for abatement proceedings. According to learned counsel, the petitioner's failure to implead the legal representatives of the deceased respondent has only created a defect in record of the appeal within the meaning of rule 7 ibid which inter alia reserves wide discretion to the Court to permit a party to remove the defect. In Elahi Bakhsh v. Budha (1968SCMR328) and Nawab Karim v. The Chief Settlement Commissioner (1970SCMR72), appeal were dismissed owing to the appellant's gross failure to comply with the requirement of Order XVI, rule 9, despite the discretion in rule 7.

However, as pointed out in the beginning, delay has already been con doned so far Syed Shafqat Ali is concerned, and, therefore, qua him, the appeal will proceed on merits. In these circumstances, it would, in my opinion, be proper to condone the delay in the case of the petitioner, also, so chat the appeal proceeds as a whole and not partially. I would leave the parties to bear their own costs in these proceedings.

Petition accepted.

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