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Civil Petition No. 14 of 1977, decided on 20th February, 1985.
(On appeal from the judgment and order of the Lahore High Court, Lahore, dated 25‑‑10‑1976 in .L.P.A. No. 288 of 1966).
Constitution of Pakistan (1973)‑‑
‑‑‑Art. 185(3)‑‑Civil Procedure Code (V of 1908), 0. XXII, r. 4‑ Abatement on account of death of defendant‑‑Application for setting aside abatement /bringing legal representatives on record, dismissed‑‑High Court's conclusion based on assumption that petitioner and deceased were co‑occupant of premises in dispute (hence petitioner would not have remained unaware of his death), assailed‑‑Death certificate showing that death had taken place in a different locality of same city‑‑Plea raised that in such a situation neither assumption nor conclusion on which relief was denied to petitioner would be supportable‑‑Supreme Court considered a case to be fit one for grant of leave to appeal.
Zaki‑ud‑Din Paul, Senior Advocate Supreme Court instructed by Mahmood A. Qureshi, Advocate‑on‑Record for Petitioner.
Ch. Mushtaq Ahmad Khan, Advocate Supreme Court for Respondents.
Date of hearing: 20th February, 1985.
The petitioner seeks leave to appeal against the judgment of the Appeal Bench of the High Court dated 25‑10‑1976 whereby the application filed by the petitioner for setting aside the abatement on account of the death of Mahmood Ali on 23‑1‑1971 and bringing on record his legal representatives, was dismissed as abated.
The learned counsel contended that the impugned order of the High Court proceeds on the assumption that Mahmood Ali was residing in the same premises which were in dispute and where the petitioner, was also residing. If this had been the case, the conclusion drawn by the learned Judge of the High Court would have been sustainable for the petitioner would not have remained unaware of the death of the co‑occupant of the premises. However, it is contended that according to the death certificate filed by the petitioner before the Appeal Bench, it was clear that the death of Mahmood Ali had taken place in a different locality of the same city. In such a situation, neither the assumption nor the conclusion on which the relief has been denied to the petitioner would be supportable.
We consider it to be a fit case for grant of leave to appeal which is hereby granted.
Security in the sum of Rs.2,000.
The appeal to be heard on the present record with liberty to the parties to file such additional documents as they may consider necessary. Status‑quo already ordered to remain in the field.
M.I. Leave granted.
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