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Writ Petition No. 750 of 1974, decided on 14th March, 1978.

---Art. 199--Civil Procedure Code (V of 1908), 0. XXII, Rr. 3 & 4--Constitutional jurisdiction, exercise of--Legal representatives, impleading of--Legal representatives of deceased parties were already brought on record in revision petition pending in High Court- Substitution in revision before High Court, held, would be made for purposes of suit as well and no fresh application, before trial Court to bring legal representatives of deceased parties on record of suit, would be necessary--Order of revisional Court requiring legal representatives to be brought on record in plaint declared to be without lawful authority by High Court in constitutional jurisdiction.

Mir Ghulam Abbas and others v. Hashim and others 1969 SCMR 257 and Brij Indar Singh v. Lala Kansh Ram and others A I R 1917 P.C. 156 ref.

Ch. Khurshid Ahmad for Petitioners.

Ch. Abdur Rashid for Respondents.

Nemo for the Department.

Date of hearing: 14th March, 1978.

Facts leading to this Constitutional petition are that the petitioner filed a suit for possession of land measuring 218 Kanals situated in Tehsil Chunian, District Lahore, sometime in the year 1980. After the receipt of written statement, issues were framed. In relation thereto, the petitioner filed a Civil Revision No. 540/67 in this Court which was finally allowed on 10-11-1971. During the pendency of this revision petition, defendants Nos. 6 and 3 had died on 31-1-1968 and 1-3-1970, respectively. One of the plaintiffs had also died on 3-4-1969. The legal representatives of the deceased defendants and plaintiff were brought on record in the revision in the High Court. After the revisional order of this Court when the suit recommenced, an application was filed by the plaintiffs-petitioners under Order VI, rule 17 and Order I, rule 10 read with section 151, C.P.C. for bringing on record the legal representatives of the deceased parties. The application was opposed on the ground that the application should have been made under Order XXII, C.P.C. The learned Civil Judge, Chunian held that since the legal representatives of the deceased parties had been brought on the record in the High Court during the pendency of the revision petition, the application of the plaintiffs-petitioners for bringing on record the legal representatives merited acceptance and he ordered accordingly. This is, vide order, dated _9-5-1973. The defendants filed a revision petition before the learned District Judge and a learned Additional District Judge held that if the legal representatives of the deceased parties had been brought on record in appeal that would have been permissible but as the legal representatives had been brought on record in a revision petition' that was not enough and the plaintiffs having not moved the application for bringing on record the legal representatives of the deceased parties in the trial Court, the application filed before the learned trial Court could not have been accepted. He accepted the defendants' revision petition, vide order, dated 5-2-1974. This order has been challenged by the petitioner.

2. Learned counsel for the petitioners has contended that the legal representatives of the deceased parties having been brought on record in the revision petition pending in the High Court there was no further necessity to file an application for bringing on record the legal representatives of the deceased parties in the suit in the learned trial Court. The legal representatives having been brought on record in the superior forum would be sufficient and enure in the suit as well. He has placed reliance on Mir Ghulam Abbas and others v. Hashim and others 1969 S C M R 257.

3. Learned counsel for the respondents has submitted that the suit had not been stayed by the High Court in the revisional proceedings and, therefore, the application for bringing on record the legal representatives should have been filed in the trial Court.

4. The contention of the learned counsel for the petitioner, as supported by the above-mentioned judgment of the Supreme Court, has full force. In the aforesaid judgment, the learned Chief Justice Mr. Justice Hamoodur Rahman had referred to the Privy Council case i.e., Brij Indar Singh v. Lala Kansh Ram and others A I R 1917 P C. 156 in which the fact that the legal representatives of the deceased parties were brought on record in the revision petition pending in the Chief Court of Punjab was held enough to hold that there was no question of abatement of the suit, even when no application had been made before the trial Court. The judgment of their Lordships of the Supreme Court is on all fours. The learned Additional District Judge acted without lawful authority in setting aside in revision the order of the learned trial Court without even noticing the judgment of the highest Court in the land. It is, therefore, declared that the order of the learned Additional District Judge, dated 5-2-1974 is without lawful authority and is of no legal effect. This petition is allowed with costs. Since the suit filed in 1966 has not proceeded beyond the stage of framing of issues, the learned trial Court is directed to proceed with the case as expeditiously as possible. This petition thus stands disposed of.

H . B . T . Petition allowed.

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