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Second Appeal No.326 of 1970, heard on 23rd January, 1984.

---O.XXII, r.4--Abatement of appeal due to death of defendants--Second appeal arising from suit for partition--Two of defendants dying during pendency of appeal--Legal representatives not brought on record--Appeal against deceased respondents, held, abated--Partial adjudication upon rights of other parties not being permissible in circumstances, appeal dismissed.

Wali and others v. Manak Ali P L D 1965 S C 651 rel.

Syed Inayat Ali for Appellant.

Nooruddin Ramzan, Advocate for Respondent No. 1,

Shaikh Hayder Advocate for Intervene L/R.

Ahmed Ali Memon, Advocate for Respondents Nos.4 and 5.

Date of hearing: 23rd January, 1984.

This second appeal has been filed against the Judgment and decree dated 30th July, 1966, passed by the learned Civil Judge First Class, Karachi in Suit No.33 of 1958 and the decree passed on 4-4-1970 in Civil Appeal No.24 of 1968 by the learned Additional District Judge, Karachi.

The abovementioned suit was filed for partition of the property bearing old Survey No.34, Sheet K-2 situated in Lyari Quarter, Karachi by the Appellant (hereinafter referred to as the plaintiff) in the Civil Court against the respondents Nos.1 to 5.

The learned trial Court after recording the evidence passed final decree for partition and separate possession and awarded the portions in the suit property as under:---

" Plaintiff .80-7/9 Sq. Yds.

Defendant No.1 .79 Sq. Yds.

Defendants 4 and 5 ....Jointly 57-2/9 Sq. Yds."

The learned trial Court further directed:-----

"Since the parties shares are definitely specified no preliminary decree is necessary. They may move the Court in execution proceedings for possession of their shares through revenue officers or otherwise. Parties shall bear their own costs.

Interim injunction shall continue till the parties having shares according to this decree have been put in possession of their shares."

2. Against the above judgment /decree, appeal was preferred which however was dismissed on 4-4-1970 by the learned Additional District Judge, Karachi as barred by time.

3. The plaintiff/appellant then filed this second appeal on 1st August. 1970 under section 100, C.P.C. During the pendency of this appeal the respondents Nos.2 and 3, namely Wali Muhammad and Mistri Yousuf, died.

Civil Miscellaneous Application No.272 of 1971 however was filed on 3-2-1971 by the plaintiff /appellant praying therein that notices may be issued to persons named in the said application who were claiming to be the legal representatives of the respondents Nos.2 and 3, to determine whether the said persons could be joined in the appeal for any purpose. It was stated in the application that the appellant had no intimation of the death of respondents Nos. 2 and 3, till their alleged legal heirs filed Suit No.1512 of 1970 in the Court of Civil Judge First Class, Karachi claiming declaration that the decree passed in Suit No.33 of 1958 was not binding upon them.

The above application was dismissed by order passed on 30th August, 1971 with the observation inter alia that the same was mis conceived and that it was for the appellant to apply for joinder of legal representatives. On 5-11-1971 when the case came up before the Court it was directed that the questions whether the appeal abated against the respondents Nos.2 and 3 and if so, whether the abatement was of the appeal is its entirety would be decided at the regular hearing.

4. At the time of hearing of the appeal the learned counsel for the parties addressed the Court on the abovementioned questions left for consideration of the Court by, order passed on 5-11-1977.

It is conceded by the learned counsel for the appellant/the plaintiff that the respondents Nos. 2 and 3 (who were defendants Nos.2 and 3 in the suit) died before 3rd February, 1971 much prior to the coming into force of the Law Reforms Ordinance No. XII of 1972 which was promulgated on 14-4-1972 whereby rules 3, 4 and 9 of Order XXII were amended. The procedure/effect of the death of respondents Nos.2 and 3 on the suit would, therefore be governed by law/provisions of Civil Procedure Code as it stood prior to coming into force of Ordinance No.XII of 1972. In view of the .law then existing the suit against the respondents Nos. 2 and 3 (the defendants Nos. 2 and 3 in the suit) abated, as their legal representatives had not been brought on record within the time prescribed under Article 177 of the limitation Act. In the circumstances in the absence of all the co-owners the Court cannot pass or adjudicate upon the rights of the cu-owners in this appeal which has arisen out of a suit for partition. The Honourable Supreme Court in the case of Wali and others v. Manak Ali P L D 1965 S C 651 at page 655 while observing that the order of dismissal of suit or appeal against the living defendants or respondents will be justified only if it becomes impossible to proceed with the suit or appeal on account of its abatement as against the deceased party, held:----

" .....the fact that rights and obligations as between A and B have become incapable of adjudication in a suit filed by A against both B and C would ordinarily afford no ground for refusing to adjudicate upon the rights and obligations as between A and C and for depriving A of the relief he is entitled to against C, and if such an adjudication is to be prevented it would have to be shown that adjudication of rights and obligations as between A and C is not possible without a simultaneous adjudication of the rights and obligations as between A end B, either on account of the nature of the relief asked for or on account of some provision of law which expressly or by necessary implication requires a single adjudication between all the parties. An example of a suit where the nature of the relief asked for requires an adjudication between all parties is a suit or partition o property. A partition can take pace only as between all the co-sharers though it may be clarified here that after a decree for partition is passed the dispute may in appeal become confined to some out of the co-sharers. A suit for accounts of partnership is also an example of this kind but not a perfect one for a case is conceivable where there have admittedly been profits and two parties are claiming their share of profits against the third partner who is the accounting party. An example of a case where law requires one decision of a dispute between all parties is a suit for pre-emption. Though there be more than one vendee only a single suit can be filed with respect to one sale and the law does riot permit an adjudication as between the pre-emptor and one of the vendees. Here the law envisages only one cause of action and one decision of a dispute and a partial adjudication is not possible."

5. In view of the law laid down authoritatively by the Honourable Supreme Court as above, this appeal having arisen out of a suit for partition, in the absence of the respondents Nos.2 and 3 on account of their deaths, their legal representatives having not been brought on record, appeal against the deceased respondents Nos.2 and 3 abated and consequently since the law envisages only one cause of action and one decision its no longer possible to partially adjudicate upon the rights of the other parties. This appeal, in the circumstances discussed above, is liable to be dismissed.

6. Before concluding it may be observed that the Law Reforms Ordinance NO.XII of 1972 which brought about amendments in rules 3, 4 and 9 of Order XXII, C.P.C. w.e.f. 14-4-1972 would be of no assistance to the appellant/as the appeal against the respondents Nos. 2 and 3 has abated much before coming into force of the said Ordinance of 1972.

7. The upshot of the above discussion is that this appeal is dis missed. In the circumstances the parties are left to bear their own costs.

The above are the reasons for the short order passed on 23rd January, 1984.

M. I. Appeal dismissed.

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