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‑‑ O. I, R. 10 ‑Addition of party in suit‑Effect‑Where a party is sought to be added, joinder of such party in suit, held, would be deemed to ha‑e taken effect from date of filing of application even if order thereon was passed after expiry of period prescribed for filing of suit.

South India Industrials Ltd. v. Mothey Narasimha Rao A I R 1927 Mad. 468 and Hassanand v. Nandiram and others A I R 1930 Sind 259 rel.

Dr. Tillusmal v. Seth Abdullah and another P L D 1952 Sind 64 and Messrs Chand Oil Mills v. M. Muhammad Zakria P L D 1958, Kar. 510 ref.

--S. 115‑Revisional jurisdiction, exercise of‑Concurrent findings of Courts below‑Questions of fact, held, would stand concluded by concurrent findings of Courts below on appreciation of evidence tan record‑Such concurrent findings could not be questioned in revisional jurisdiction of High Court unless same suffered from any infirmity within meaning of provisions of S.115, Civil Procedure Code.

A. Rauf for Appellant.

Muhammad Khalil for Respondents Nos. 1 to 7.

Date of hearing : 12th February, 1986.

Being aggrieved by judgment and decree, dated 5th January, 1984 of the learned IIIrd Additional District Judge, Karachi dismissing Civil Appeal No. 335 of 1982 filed by the applicant against the judgment and decree pas ed against it and Karachi Electric Supply Corporation Limited, awarding Rs. 50,000 as compensation to Juma Khan (since deceased) and his wife Haseena Begum, this revision application has been preferred under section 115, C. P. C.

The Karachi Electric Supply Corporation Limited, neither filed any appeal nor revision against the aforementioned decrees.

2. The facts briefly stated are that on 12th August, 1975 the electric wires which the Karachi Electric Supply Corporation were under an obliga tion to maintain with due care keeping in view the danger involved, fell down as the same were not properly looked after by the said K.E.S.C. as a result of which Rashid Ahmed (son of the plaintiff/Juma and Haseena) aged about 20 years, a student of Xth Class, was killed consequent to an electric shock received by him. One Hassan Dad a neighbour who tried to save Rashid Ahmed also received electric shock and died. Kaniz Begum the sister of Rashid Ahmed had also received electric shock but her rife was saved. F. I. R. was lodged but no action was taken. Consequently Suit No. 234 of 1976 was filed on 29th January, 1976 in the Court of IIIrd Senior Civil Judge, Karachi by the parents, the above‑named Juma Khan and Mst. Haseena for grant of decree for Rs. 50,000 as compensation with costs. The applicant above‑named was joined as a defendant on an application filed under Order X, rule 10, C.P.C. on 1st August, 1976 which was granted on 9th August, 1977.

3. The defendant No. I/K. E. S. C. did not contest the suit. ;Defendant No. 2/Pakistan Insurance Corporation denied its liability by raising legal pleas which are not relevant for purposes of this petition as no decree against it was passed.

The defendant No. 3, the applicant denied its liability and inter alia leaded that the eventuality which resulted in the death of the boy was not covered under the policy. It is not necessary to refer to other please taken in defence, suffice would it be to observe that the parties went to the trial on the issues framed by the Court which are reproduced herein below:

"(1) Whether the death of plaintiff's son (Rashid .Ahmed) occurred due to negligence or illegal acts on the part of the defendant No. 1

(2) Whether the defendants are liable for payment of compensation as prayed by the plaintiffs

(3) Whether the plaintiffs are ‑entitled for the reliefs as prayed by them

(4) What should the decree be "

All the issues were answered in favour of the plaintiffs and the learned trial Court after coming to the conclusion that the boy Rashid Ahmed was an earning member of the family contributing and rendering economic benefits to his parents/the plaintiffs Nos. 1 and 2, and after taking into consideration expectancy of life in Pakistan to be 65 years and the age of the father (then aged 60 years) decreed the suit against the defendants Nos. 1 and 3 jointly and severally for Rs. 50,000 with costs.

4. Against the judgment and decree passed as above mentioned by the learned trial Court the applicant above named preferred appeal.

K. E. S. C. Ltd., against whom the suit had also been decreed, however. did not prefer any appeal During the pendency of the said appeal Juma Khan died on 14th April, 1983.

The appeal was dismissed by judgment and decree passed on 5th January, 1984, against which this revision application has been preferred.

5. The main argument advanced by the learned Advocate for the applicant in support of the petition was based on the plea raised for the first time in this Court to the effect that the boy Rashid Ahmed had met the accident and died on 12th August, 1975, the suit against applicant would be deemed to have been instituted on 9th August 1977, the day on which it was ordered to be joined as a party in the suit. It was accordingly argued that the suit against the applicant ought to have been dismissed as barred by time.

I, however, find that the arguments advanced as above cannot be) accepted as in my opinion when a party is sought to be added by moving an application in the Court, its joinder as a party must tie deemed to have taken effect from the date of the tiling of the application even if the order is made after the exit of the period prescribed for filing, of the suit. This reason which persuaded me p take the view as above is that where an application for joinder of a defendant is made in time within which the party sought to be joined could have been sued, the rights of the plaintiff could not iii the circumstances be defeated merely because due to omission or acts of the Court or the manoeuvring of the opposite party or by mistaken decision of the Court which had to be put right on appeal o revision, the order to which party applying was entitled might not be made until the suit had become time‑barred. In coming to the conclusion as above I am benefited by principles laid down in the case of South India Industrials Ltd. v. Mothey. Narasimha Rao (A I R 1927 Mad. 468) wherein a learned Division Bench observed as follows "It is contrary to one of the clear principles of the law of limitation that a diligent party who has come to Court with his suit or his appli cation within the period prescribed should be defeated because the Court for seine reason cannot or does not give him his relief within that period. The heavy penalty for exceeding the arbitrary periods of limitation is to be counter‑balanced by the assurance of safety when within time."

The view taken as above also finds support from the case reported as Hassanand v. Nandiram and others (A I R 1930 Sind 259).

The learned counsel for the applicant, however, relied upon to cases reported as Dr. Tillusmal v. Seth Abdullah and another (P L D 1952 Sind 64) and Messrs Chand Oil Mills v. M. Muhammad Zakria (P L D 1958 Kar. 510) I have carefully gone through these cases and find that these do not advance the case of the applicant.

The facts of the case reported as Dr. Tillusrnal v. Seth Abdullah and another (ibid), were that a suit for recovery of money for breach of agreement of sale of land made on 5th allay, 1947 was filed on 5th May, 1950. The cause of action was said to have arisen 'on 5th May, 1947 and again on 30th August, 1947. On 25th November, 1950, the plaintiff filed an application for joinder of some of the heirs of the seller (deceased) as defendants. On these facts the learned Judge refused to join them as parties , to the suit with the following observations

" .I have reached the conclusion that any decree which may be passed in the present suit against defendant No. 2 would not be binding upon the heirs now sought to be joined, section 22 of the Limitation Act would apply to them, and since more than three years (which it has been conceded is the period of limitation applicable to this suit) elapsed between the accrual of the cause of action and the application for joinder, I decline to join them as defendants to the suit and so dismiss the application with costs."

(The underlines' have been made by me).

The observations made in the above‑cited case do not support the arguments advanced by the learned counsel for the applicant rather the same support the conclusion reached by me as earlier stated.

The case of Messrs Chand Oil Mills v. Haji M. Zakaria & Co. and 2 others (ibid) is distinguishable as in it the precise question which has been raised in the present petition had not come up for consideration and, therefore not decided. The said case therefore, is not relevant.

The submissions made by the learned counsel for the applicant that the claim against his client had become time‑barred when the order for its joinder as a party to the suit was passed, though the application had been moved within the time prescribed for filing the suit against it, for the, reasons discussed above cannot be accepted.

6. The learned counsel for the applicant then questioned the reasonableness of the amount of compensation awarded to the parents of the deceased. He also argued that the applicant was not liable to pay the amount claimed under the insurance policy. I, however, find that theses questions stand concluded by the concurrent findings of fact given by the two Courts below on appreciation of evidence on the record. The amount awarded as compensation keeping in view the age of the young than who was a Matriculate and was an earning member could hardly be describe as unreasonable. As regards the other plea, learned counsel did not refer to any clause in the insurance policy which exonerated it from the liability.

7. The upshot of the above discussion is that the judgment given by the Courts below do not suffer from any infirmity within the meaning o the provisions of section 115, C,. P. C. This revision application, therefore being without any merits is dismissed with costs.

A. A. Revision dismissed.

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