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Regular Second Appeal No. 624 of 1965, decided on 3rd November, 1979.

-- O. XXII; rr. 3 & 6--Abatement of suit--Plaintiff dying after conclusion of evidence and before pronouncement of judgment Provisions of r. 3 cannot be attracted to such case and suit does. not abate. [Abatement of suit).

Abdullah arid another v. Mian Tafuzzal Hussain and another P L D 1961 BJ58rtf.

O. XXII read with S. 96-Abatement of appeal--Claim of ' several plaintiffs in suit based on mortgage deed containing joint and indivisible transaction-Defendants-appellants knowingly failing to bring legal representatives of deceased plaintiff on panel of respondents in appeal within statutory period-Held, condonation of delay rightly refused by District Judge-Conclusion drawn by appellate Court that appeal abated upheld.--[Abatement of appeal].

Sunsingh v. Ghulub Singh A I R 1928 Lah. 372 ref.

Sho Abdur Rashid for Appellants.

Aiasud Javaid for Respondents.

Date of hearing 23rd October 1979.

Muhammad Yousuf and 20 others (respondents) sued Allah Rakha and Muhammad - Akbar alongwith 13 others for possession of land measuring 27 kanals situated in village Koth Khudian of Pasroor Tehsil, District Sialkot. The suit was decreed on 12-9-1963 by the trial Court. Against this, Allah Rakha and others, the present appellants (defendants) preferred an appeal in the Court of District Judge, Sialkot. During the pendency of appeal, the present appellants applied to the learned District Judge to declare the decree of the trial Court as non-existent and nullity in the eye of law on account of abatement of suit d a' to the failure on the part of plaintiffs to bring the legal representatives of two deceased cu-plaintiffs on the record before the trial Court within the prescribed period. The learned lower Appellate Court vide his order dated 3-3-1965 repelled that contention and held the suit alive. As the legal representatives of Mst. Shahab Bibi deceased plaintiff had already 'been on the panel of plaintiffs-respondents no fresh application was needed to implead them again. However the appellants after the decision dated 3-3-1965 made by the District Judge applied for the joinder of the successors-in interest of Rehmat Ali deceased as plaintiff-respondents with an application for condonation of delay. The only ground urged by the appellants for the extension of time was that as they had become sure of the abatement of the suit of the plaintiffs on account of non-impleading the legal representatives of Rehmat Ali deceased, plaintiff within the prescribed period before the trial Court, therefore, they did hot feel any necessity to implead the legal representa tives of Rehmat Ali deceased as respondents in appeal instituted by them. In other words, to be more precise, the appeal was 1'iled against dead as well as living persons: The learned District Judge did not accept said explanation put forth by the appellants and declined to condone the delay and set aside the abatement. However it was held by the learned District Judge that as the decree was joint and indivisible, therefore, the appeal stood abated in toto vide his judgment and decree dated 30-3-1965.

2. Feeling aggrieved thereby the appellants (defendants) have come in second appeal to this Court.

3. I have heard the learned counsel for the parties and perused the record minutely. The only point which has been canvassed before me and which requires determination in this appeal is whether the suit filed by the respondent* stood abated on failure to bring the legal representatives of Rehmat Ali deceased plaintiff on record before the trial Court till passing the decree.

4. In para 2 of grounds of present appeal, appellants have admitted that Mst. Shahab Bibi and Rehmat Ali plaintiffs had died before hearing the arguments in the trial Court. The learned District Judge also concluded that death of Rehmat Ali plaintiff occurred after the conclusion of evidence in the trial Court and prior to the pronouncement of judgment. A perusal of record shows that patties to the litigation closed their evidence on 26-4-1963, and the case was fixed for hearing the arguments of the learned counsel of the parties. The order sheet dated 31-7-1963 runs as under:__

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On 9-9-1963 the proceedings were as under :__

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On 12-9-1963 the following order was passed:__

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It is evident from the order Sheet referred to above that the learned counsel for the parties never addressed their arguments in the trial Court and the learned Civil Judge passed the final judgment and decree without hearing the arguments its the case. Order XXII, rule 6 provides asunder :-

"Notwithstanding anything contained in the foregoing rules, whether the cause of action survives or not, there shall be no abatement by reason of the death of either party between the conclusion of the bearing and the pronouncing of the judgment, but judgment may is such case be pronounced notwithstanding the death and shall have the same force and effect as if it had been pronounced before the death took place."

5. The hearing of argument is not enjoined on the Court by the Civil Procedure Code, 1908. If arguments are not heard before judgment is passed, the bearing will, for the purposes of Order XX1 f, rule 6, C. P. C. be deemed to have concluded with the conclusion of the evidence of the parties and Order XXII, rule 3 will not be attracted. According to rule b men tioned above, death of either party happening "between the conclusion of the hearing and the pronouncement of the judgment does not adversely affect the proceedings. In the instant case, as the arguments were never heard and addressed, the date of conclusion of evidence will be considered to be the date of conclusion of hearing. In Abdullah and another v. Mien Tajuzzal Husrain and another (P L D 1951 B 1 58) it was held that if arguments are not heard before the judgment is passed the hearing will for the purposes of Order XXII, rule 6 of the C. P. C., 1908 be deemed to have concluded with the conclusion of the evidence of the parties, but if arguments are heard, the date at which the hearing con cludes is the one when arguments conclude. In the instant case as the arguments were never heard, therefore, no question of their conclusion arises. Under such circumstances it is the date of conclusion of evidence which could be con sidered to be the date of conclusion of hearing in this case. As stated above, even according to appellants, Rehmat Ali plaintiff died after the conclusion of evidence and before the pronouncement of judgment, therefore the provi sions of Order XXII, rule 3 cannot be attracted to the facts of this case and the learned District Judge rightly held that the suit did not abate.

6. As far as, divisibility or indivisibility of the decree is concerned, it is a hard fact that all the plaintiffs who claim to be the successors-in-interest of original mortgagor based their claim upon a mortgage deed executed in favour of their predecessor-in-interest. The transaction contained in the mortgage deed was joint and indivisible. It will create great confusion if the appeal is allowed in the absence of some respondents in whose favour the original decree stands. The interest of Rehmat Ali plaintiff was neither separate nor separable with other co-plaintiffs. The test to be applied is whether in the event of appeal being allowed as against the remaining respon dents there would or would not be contradictory decrees in the same litigation with respect to the same subject-matter: In Sunsingh v. Ghulab Singh (A I R 1928 Lah. 372) the Full Bench of this Court ruled as under

"It is a matter of common sense that the Court should not be called upon to make. two inconsistent decrees about the same property, and in order to avoid conflicting decrees the Court has no alternate but to dismiss the appeal as a whole."

The petitioners knowingly failed to bring the legal representatives of Rehmat Ali deceased on the panel of respondents in their appeal within the statutory period and the learned District Judge rightly refused the condona tion of delay and held the appeal as abated. I find no error or illegality in conclusions drawn by the learned lower Appellate Court.

7. The upshot of the above discussion is that the appeal has no force and is hereby dismissed, leaving the parties to bear their own costs.

S. Q. Appeal dismissed

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