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A: O. No. 37 of 1968, decided on 20th January 1979.
-- O. XXII, r. 4, O. XLI, r. 20 read with S. 153--Legal representatives impleading of-District Judge allowing to implead legal representatives of plaintiff respondent, he having obtained ex parte decree against appellants on ground of such plaintiff-respondent having died before institution of appeal and his legal representatives being brought on -record after expiry of period of limitation Appeal having been presented before District Judge after death of plaintiff-respondent, '"t question of bringing his legal representatives on record did not arise Question, on other hand, related to validity of institution of appeal itself-Order XXII, r. 4 or Order XLI, r. 20, held, not applicable to case in circumstances but case one of S. 153 to allow appellants to amend plaint and implead legal representatives of deceased respondent-Appeal accepted, appellant given chance to amend his grounds of appeal by impleading legal representatives of deceased plaintiff-, respondent and to move application for condonation of delay-Appeal: directed to be 'gone into on merits only in case of condonation of delay being ordered by District Judge.
Gopalakrlshnayya and another v. Lakshmana Bao A I R 1925 Mad: 1910 fol.
Labhu Ram and others v. Ram 'Partap arid others A I R 1931 Lah. 76; Qasim Khan and another v. Mst. Malkai and others P L D 1963 Pesh. 58 and Muhammad Jamil v. Chairman, Industrial Court, West Pakistan P L D 1964 S C 559 distinguished.
Mahfooz Khan for Appellants.
Mohammad Afzal Bangash for Respondent.
Remaining Respondents: Ex parte.
Date of hearing : 20th January 1979.
Niamatullah and others have moved this appeal against the older dated 30-3-68 of the District Judge, Darajat as they are not satisfied with the refusal of the learned District Judge to allow the impleadment of the legal representatives of Ghulam Sarwar plaintiff-respondent who was successful in obtaining an ex parte decree against them on ground that Ghulam Sarwar died before the institution of the appeal and his legal representatives were being brought on the record after the expiry of the period of limitation.
2. It is contended on behalf of the appellants by Mr. Mahfooz Khan, Advocate that the view of the learned District Judge is erroneous for when the appeal was presented before him the respondent was already dead. It was not a question of brining the legal representatives of Ghulam Sarwar on the record but a question which related to the validity o the institution itself. In such a situation neither Order XXII, rule 4 no Order XLI rule 20 of the Civil Procedure Code were applicable. The Court had to fall on section 153, C. P. C. and to allow the appellants to amend their memorandum and implead the legal representative] o f A Ghulam Sarwar as respondents to the to appeal. In support of hi contention the learned counsel referred me Gopalakishnayya and another v. Lakshmpna Rao (A I R 1925 Mad. 1210) which is a Full Bench authority wherein in a similar case their Lordships were pleased to allow amendment with reference to section 153 of the Civil Procedure Code adding that the question as to whether period of limitation should be condoned is a point which shall have to be decided by the admission Court concerned.
3. In this context the learned counsel for the respondents has invited my attention to Labhu Ram and others v. Ram Partap and others (A I R 1931 Lah. 76), Qasim Khan and another v. Mst. Malkai and others (P L D 1963 Posh. 58.) and Muhammad Jamil v. Chairman, Industrial Court, West Pakistan (P L D 1964 S C 559) but when it was pointed out to the learned counsel that these were the cases in which the appeals had been properly instituted but one of the respondents or representatives of that respondent had to be brought on the record he agreed with me that the authority cited by his opponent was more in point.
4. On the view of the matter that I take I will accept this appeal, set aside the impugned order and make no order as to costs. The appellant should be given a chance to amend his grounds of appeal by impleading the legal representatives of Ghulam Sarwar deceased as also to move an application for condonation of delay. The last mentioned application will be disposed of by the learned District Judge on its own merits. Needless, to say that if the period of limitation is condoned it will be then only that the learned District Judge will go into the merits of the appeal presented before him.
S. A. H. Appeal accepted.
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