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Civil Petition No. 285 of 1981, decided on 10th November, 1981.

(On appeal from the judgment dated 17‑12‑1980 in Civil Miscellaneous No. 7439/C/1980 and Civil Miscellaneous No. 7440/C/1980 in Regular Second Appeal No. 126 of 1970).

‑‑ Art. 185(3) read with Civil Procedure Code (V of 1908), S. 100, Os. XXII & XXIII‑Second appeal‑Withdrawal of appeal -Abatement of appeal‑Appellant dying during pendency of appeal but his heirs not brought on record within time limit and attorney of appellant later withdrawing appeal‑Held, appeal had abated on failure to bring on record heirs of deceased‑Order of High Court dismissing applications of heirs of deceased filed after more than six years of his death for condonation of delay and for rehearing of appeal‑Held, does not call for interference, in circumstances of case.

Sanaullah Bajwa, Advocate Supreme Court and Sh. Abdul Karim, Advocate‑on‑Record for

Banns deceased and 11 others filed an appeal (R. S. A. No 126 of 1970) against Mst. Hussain Bibi and 21 other respondents herein in 1970 through one Bashir Ahmad attorney, and their counsel was Mr. A. R. Niazi, Advocate. On 27‑4‑1973, the counsel for the appellants before the High Court submitted an application for permission to withdraw the appeal. This application was also submitted through Bashir Ahmad, Attorney. The said application was allowed and the appeal was dismissed as withdrawn on 27‑4‑1973.

Some six years later, the heirs of Banna, who died on 4‑8‑1971, namely, Sain and Nizam Din submitted an application (C. M. No. 7439/C 1980) for re‑hearing of the appeal. They also submitted another application (C. M. No. 7440/C/1980) for condonation of delay in making the petition for re‑hearing of the appeal: Both the petitions came up for hearing before a learned Single Judge of the Lahore High Court, who was of the opinion that there was no sufficient ground for excusing the delay caused in making the application. Consequently, the C. M. No. 7440‑C of 1980 was dismissed and the delay was not condoned. The Civil Miscellaneous No. 7439‑C of 1980 for re‑hearing of the appeal was also dismissed as barred by time. This petition for leave to appeal is directed against the aforesaid order.

Mr. Sanaullah Bajwa, learned counsel for the petitioners, in support of this petition, has submitted that Banna, one of the appellants, had died on 4‑8‑1971 and, therefore, his legal representatives could have submitted the application for restoration of the appeal and its decision on merits and the delay should have been condoned. It is further submitted that the power of attorney executed by Banna in favour of Bashir Ahmad Attorney was no longer in force as Banna had died on 4‑8‑1971 and the appeal was withdrawn by the Attorney on 27‑4‑1973.

We do not find this case to be a fit one for interference. On the death of Banna his heirs Sain and Nizam Din were not brought on the record within the time limited by law and, therefore, the appeal of Banna had abated. Consequently, his heirs did not have a locus standi to ask for restoration of the appeal after it bad abated qua their predecessor.

So far as the remaining appellants are concerned, we note that Bashir Ahmad continued to be their Attorney on the date when the appeal was withdrawn. Moreover, the application for withdrawal of the appeal was filed through their counsel Mr. A. R. Niazi, Advocate who was also present when the appeal itself was heard and dismissed as withdrawn.

The upshot is that this petition fails and is hereby dismissed.

Petition dismissed.

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