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Civil Petition for Special Leave to Appeal No. 262 of 1979, decided on 25th June, 1979.

(On appeal from the order dated 20-2-1979 of the Lahore High Court in R. F. A. No. 28 of 1957).

-- O. XXI-Inquiry Judge as well as High Court after carefully weighing entire evidence coming to conclusion of appellant having died during pendency of appeal and allowing application for bringing her legal representatives on record-Finding being not vitiated by any legal infirmity, effect of order being hearing of appeal on merits, and law favouring adjudication on merits and not on technicalities, judgment of High Court, held, liable to be upheld.

Raja Said Akbar Khan, Senior Advocate Supreme Court with Rana Maqbool A. Kadri, Advocate-on-Record for Petitioners.

Nemo for Respondents.

Date of hearing: 25th June 1979.

This petition for leave to appeal is directed against the order of the Lahore High Court dated 20-2-1979, whereby the application for bringing the legal representatives of one Mst. Noor Khatoon deceased was allowed.

Mst. Noor Khatoon who had filed a Regular First Appeal in the High Court died during its pendency. Her son, Nazar Muhammad to bring her legal representatives on the record, averting therein that his mother died seven months earlier, submitted an application on 2-I1-1973. He also submitted an application for condonation of delay in filing this petition.

Allah Bakhsh (petitioner herein) contested the application on the ground that Mst. Noor Khatoon had died not seven months ago but nearly two years ago i.e. on 19-7-1971 and that the appeal had since long abated and ought to be disposed of accordingly.

When the case came up before the High Court a number of affidavits were submitted by the counsel for Mst. Noor Khatoon deceased to establish that she bad died on 14-2-1973. The counsel for the other side controverter this asser tion and also placed on record a certificate (Exh. R/ I) from the death register showing the date of her death to be 19-7-1971. In view of the dispute with regard to this question the High Court sent the case to the District Judge, Multan, for inquiry and to submit a report about the date of death of the deceased. The District Judge made an elaborate inquiry as a result whereof he came to the conclusion that Mst. Noor Khatoon had in fact died on 14-2-1973, i.e. after the coming into force of the Law Reforms Ordinance, 1972. Accordingly, the question of abatement did not arise. The application for bringing the legal representatives of the deceased on record was consequently accepted. Hence this petition for leave to appeal.

Raja Said Akbar, learned counsel for the petitioners, submitted that the High Court had not itself carefully evaluated the evidence and ignored the death Certificate Exh. R/1 filed by the petitioners, which showed that,,'. .Mst. Noor Khatoon died on 19-7-1971, as well as the affidavit filed by Allah Bakhsh petitioner to the effect that Nazar Muhammad had applied to the Municipal Committee, Karor Pacca, that his mother had died between 1971 to 1973, while applying for a copy of death certificate. This showed that he was not sure about the date of her death. Instead, the High Court had relied on Exh. A/4, namely the death certificate produced by Nazar Muhammad, which showed that Mst. Noor Khatoon had died on 14-2-1973. This, according to the counsel, was not admissible in evidence under section 35 of the Evidence Act.

We find no force. In the contentions raised by the learned counsel. The learned Inquiry Judge as well as the High Court, after carefull weighing the entire evidence including that of Khuda Bakhah, the nephew oft the deceased, had come to the conclusion that Mst. Noor Khatoon ha died on 14-2-1973 and this finding is not vitiated by any legal infirmity. The effect of the order of the High Court is that the appeal will be heard on A merits, and as the law favours adjudication on merits and not o technicalities, the judgment of the High Court is liable to be upheld even o this additional consideration, This is clearly not a fit case for interference by leave of the Court.

This petition is accordingly dismissed.

Petition dismissed.

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