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Civil Revision No. 380 of 1984, decided on 19th February,1986.

‑‑S. 1‑‑Fatal accident‑‑Suit for damages‑‑Respondent‑plaintiff claiming that their son met with Railway accident on account of negligence of defendant‑petitioner Railway but failing to prove negligence on part of petitioner‑‑Onus lay heavily on their shoulder which they signally failed to discharge‑‑Courts below allowing damages not taking into consideration salient features of evidence, drawing their own conclusions not flowing from material on record and gravely erred in recording a positive finding of fact with regard, to negligence‑‑Courts acted with material irregularity in recording a concurrent finding of fact regarding negligence which was not based on proper appraisal of evidence nor they properly appreciated general principles of tort governing point at issue‑‑Such finding of Courts not sustainable in eye of law‑‑Deceased on other hand, not acting as a prudent man inasmuch as he chose to leave his seat and to stand on foot‑board of compartment running a great risk to his life anti.‑contravening provision of law and was struck down by a gate which was allegedly not properly locked during course of fast moving train‑‑Doctrine of contributed negligence also not attracted‑Judgment and decree of Courts below awarding damages set aside and suit dismissed in circumstances.‑‑[Damages].

The Federation of Pakistan through the General Manager N.W.R. ,

Lahore v. The Muslim Vehari and Wehniwal Bus Service P L D 1955 Lah. 256; Federation of Pakistan through the General Manager, N.W. Railway, Lahore v. Ali Ihsan P L D 1967 S C 249; Mst. Shaukat Jan v. Government of N.‑W.F.P. through General Manager, P.W. Railway PLD 1982 Pesh. 123; River Steam Navigation Co. Ltd. and others v . Jogesh Chandra Ghosh and another P L D 1956 Dacca 196; Ursulina D'Lima and others v . Orient Airways Limited and another P L D 1960 Kar. 712; Messrs Tabbani Arif v. Pakistan (Department of Eastern Bengal Railway) Chittagong Railway Building, Chittagong PLD 1963 Dacca 655 and Malik Raza Khan v. Pakistan P L D 1965 Kar. 244 ref.

Froom v. Butcher (1975) 3 All E R 520rel.

Amirzada Khan, A.‑G. for Petitioners.

Z. Mahfooz Khan for Respondents.

Date of hearing: 23rd November, 1985.

It was on 23‑6‑1977 that Imdad Hussain left Peshawar for Lahore in Khyber Mail and when the train reached mile No. 807/12 between Gakhar Mandi and Gujranwala Gate No. C‑46 which had not allegedly been properly locked‑struck the fast moving train. Imdad Hussain and the decrees already in existence have been declared void and of no legal effect, Court can still pass decrees in derogation of the power of alienation enjoyed by the male owners. I air., therefore, quite clear that the appeal preferred by the appellant is hit by the provisions of clause (‑c) and for that reason it stood abated on the day when Ordinance No. XIII of 1983 came into force."

It was also ruled by the Supreme Court in Abdul Ghafoor and others v. Muhammad Shafi and others P L D 1985 S C 407 that the words "other proceedings" used in clause (c) of section 2‑A include appeals. Relevant observations of the Supreme Court read as under:‑

"Not only this, sub‑clause (c) of section 2‑A, provides that all suits and 'other proceedings' of the nature visualised in the clause (b) as interpreted and discussed above, shall abate forthwith. Other proceedings would also include appeals, wherever pending. This appeal, therefore, shall also be hit by clause (c) and is accordingly declared as having abated."

Relying on the said two precedent cases, I hold that the appeal of the respondent stood abated on coming into force of the said Ordinance. The fact that it was preferred before the said Ordinance came in the field is of no consequence.

6. It was also urged by learned counsel for the petitioners that the petitioners had taken possession of the disputed land under the C decree passed in their favour and, therefore, the said Ordinance will' not be attracted to this case. In this connection, reliance was placed by him on the proviso to section 2‑A of the said Ordinance. Admittedly, the decree obtained by the petitioners was not executed. Learned counsel also did not produce any document showing that the petitioners got possession of the disputed land under the decree, without the same having been formally executed. He filed copies of Khasra Girdawaris which revealed that one of the petitioners, namely, Fateh Muhammad was in possession of the land in question as a tenant, even before the passing of the decree. Since the petitioners did not get possession of the disputed land under the decree granted to them, they cannot take benefit of the proviso to section 2‑A .

7. I do not approve of the remarks of the learned Additional District Judge that the petitioners' suit had abated. Since their suit had already been decreed, question of its abatement did not arise. It is a pending proceeding which abates. However, according to clause (b) of section 2‑A of the said Ordinance, the judgment and decree passed in favour of the petitioners in the suit brought by them had become void, inexecutable and of no legal effect.

8. In view of the foregoing discussion, and with the clarification made just above, this civil revision is dismissed in limine.

M. Y. H. Petition dismissed.

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