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Civil Petition for Special Leave to Appeal No. 1067 of 1975, decided on 25th February 1981.
(On appeal from the judgment of the Lahore High Court, dated 4-9-75 in W. P. No. 93/67).
--- O. XXII, r. 3-Writ proceedings--Abatement-Civil Procedure Code, 1908, held, fully applicable to constitutional petitions and application for substitution of legal heirs must be made within prescribed time-Constitution of Pakistan (1973), Art. 199.-[Abatement]
Chandand others v. Abdul Ghafoor and others P L D 1965 Lah. 596, Hussain Bakhsh v. Settlement Commissioner P L D 1970 S C 1 and Abdul Ghani v. Settlement Commissioner 1971 S C M R 98 ref.
Salahuddin, Advocate-on-Record and Hasan Ahmad Khan, Advocate Supreme Court for Petitioners.
Nemo for Respondent.
Date of hearing : 25th February, 1981.
-The petitioners, who are the successor-in-interest of one Abdullah, seek leave to appeal against the judgment of the Lahore High Court dated 4th September, 1975 whereby a constitutional petition filed by Abdullah was held to have abated and the claim of the petitioners to have the abatement set aside and to implead them as petitioners was rejected.
2. Abdullah filed a constitutional petition in the year 1967. He challenged orders passed by the authorities dealing with the consolidation of holdings in Village Burj Cheema, Tehsil Daska, District Sialkot. Abdullah died on 3rd April, 1971 while this constitutional petition was still pending. He left behind the petitioners who are the five sons, the four daughters and a widow. The petitioners claimed that they remained uninformed of the pendency of the constitutional petition and it was on the 2nd September, 1975 that they learnt from their opponents that the matter was pending in the High Court. The very next day they moved applications for being impleaded as petitioners and sought condonation of the delay.
3. The learned Judge in the High Court dealt with their petition and after examining at length the grounds given for their remaining uninform ed and moving the applications late, found it wholly unsatisfactory. He found that all the mate legal heirs are educated and are very up in life". He, therefore, refused the prayer.
4. The learned counsel for the petitioners contended that the petitioners had in fact remained uninformed of the pendency of the proceedings and had plausibly explained their ignorance and were entitled to be relieved of the penalty. It was also contended that on the legal plane the question in issue was not free from difficulty as in the case of Chand and others v. Abdul Ghafoor and others P L D 1965 Lab. 596 it was laid down that in consti tutional proceedings the penal provisions of the Civil Procedure Code were not applicable and only the enabling provisions could be utilized, On that principle, it is said, the petitioners deserved indulgence.
5. So far as the legal aspect of the contention of the learned counsel for the petitioners is concerned, this Court examined exhaustively the applicability or otherwise of the provisions of the Civil Procedure Code in proceedings of a civil nature in constitutional petition in the case of Hussain Bckhsh v. Settlement Commissioner P L D 1970 S C 1. It was held that the A Civil Procedure Code was fully applicable to such proceedings. In case of Abdul Ghani v. Settlement Commissioner 1971 S C M R 98 it was held that applica tion for substitution of legal heirs should be made within the prescribed time, So far as this Court is concerned, the legal point in issue has not been in doubt.
6. As regards the factual aspect of the contention of the learned counsel for the petitioners the learned Judge in the High Court has examined at some length, the residence. the occupation and the capabilities of the male heirs of Abdullah and has reached the conclusion that they were in a position to know about the pendency of the constitutional petition and to take necessary steps. This is a conclusion which could reasonably be drawn from the factors noted in the order under appeal. There is no infirmity in the conclusion drawn. On none of the grounds the petition has any merit and it is dismissed.
Petition dismissed
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