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Civil Petition No. 566 of 1976, decided on 18th February, 1986.

(On appeal from the judgment and order, dated 30‑3‑1976 of the Lahore High Court, Lahore, passed in Civil Revision No. 116 of 1976).

‑--O. XXI1, rr. 4 & 9(2)‑Limitation Act (IX of 1908), Art. 177 Application contemplated by O. XXII, r. 4, C. P. C. read with Art. 177, Limitation Act, 1908 is one for substituting legal repre sentatives and not a wrong person‑When proper legal representa tives are sought to be substituted, it is only then that Court is under obligation to make them party and continue suit‑Application not satisfying legal requirements by itself could not be treated as within time‑When a proper application is filed beyond time, it is only then that a remedy was available under O. XXII, r. 9, C. P. C. provided plaintiff was able to show sufficient cause within meaning of O. XXII, r. 9(2), C. P. C. in which Court was empowered to set aside abatement and substitute legal heirs‑Treatment of an application under O. XXII, r. 4, C. P. C. as one under O. XXII, r. 9, C. P. C. was intended to overcome technicalities by failure on part of plaintiff to file a separate application under O. XXII, r. 9 for setting aside abatement for sufficient cause.

Secretary of State v. Jawahir Lai A I R 1914 All. 94 ; Shah Muhammad and another v. Khan Bahudur Choudhri Karam Illahi and others A I R 1922 Lab. 131 ; Muhammad Bakh.,h v. Jama P L F3 1969 Lab. 642 ; Kirpa Ram v. Bhagat Chand A I R 1928 Lab. 746 Dins Nath v. Sayaa Habib and others A I R 1929 Lab. 129 ; Bharu v. Uami A I R 1934 Lah. 315 ; Firm Gabrulal v. Court of Wards A I R 1933 Nag. 85 ; Diwan Chand v. Bhagwan Chand A I R 1937 Lab. 455 and Hassomal Hardasmal v. Pirbux and others AIR1933Sind36ref.

Niroda Sundari Mondal v. Braja Lai Mondal P L D 1970 Dacca 383 distinguished.

---O. XXII, rr. 4 & 9(2)‑Abatement‑Setting aside of‑Petitioner failing to explain as to what steps he had taken to find out legal representatives‑Petitioner if misted as a result of fraud or for a compelling reason to implead a wrong person should have stated so‑Error of petitioner impleading wrong person, being not technical benefit of O. XXII, r. 9, C. .P. C. could not be availed for setting aside abatement.

‑‑‑ O. XXII, rr. 4 & 9(2t‑Substitution of legal heirs‑Plaintiff was under a legal obligation to establish sufficient cause that he was misled as result of fraud or for a compelling reason to implead a wrong person and if he was able to do so, Court was empowered to cause substitution of legal representatives and for that matter each case was to be considered on its own merits.

‑‑ O. XXII, rr. 9 & 4 ‑Abatement‑Setting aside of‑Trial Court having decided issue earlier had become functus officio and observation of high Court, held, could not give it a jurisdiction to reopen matter.

‑‑ Sched. C. P. C., item (ii)‑Abatement‑Provisions of Ordinance, 1972, held, would have no application to a case where abatement had taken place before promulgation of said Ordinance.‑[Interpre tation of statutes‑Abatement].

‑‑ Suit‑Non‑impleading of legal representatives ‑ Abatement of suit‑Continuation of suit against estate of deceased respondent despite infirmity is misconceived‑Reasons.

As to the cantinuation of the suit against the estate of the deceased respondent despite the infirmity is again misconceived as what the right of pre‑emption implies is the right of a person to acquire agricultural land in preference to others in the case of sale or redemption, and in the event of success of his claim it leads to his substitution for the vendee. In other words, it constitutes an invasion of the principle of free contract. Such substitution is not possible if there is a clog by reason of the suit having abated as in that event tire right could not be legally exercised in the absence of the legal representatives of the vendee. This cannot be equated strict servo with an action in rem which does not take cognizance of an owner but it determines right in specific property against all the world, equally binding against every one.

S. M. Zafar, Senior Advocate Supreme Court with Ch. Ejaz Ahmad, Advocate, instructed by S. Wajid Hussain, Advocate‑on‑Record (absent) for Petitioner.

S. M. Tayyab, Advocate Supreme Court and Tanvir Ahmed, Advocate‑on‑Record (absent) for Respondent No. 1.

Date of hearing: 5th November, 1985.

‑Syed Ghias Haider, on 29th of June, 1970, filed a suit for pre‑emption in the Court of Civil Judge, Dipalpur, seeking possession of land measuring about 163 Kanals and 7 Marlas situate in village Kaura Jaura, Tehsil Dipalpur, District Sahiwal, sold by Mst. Sughran Bibi to Muhammad Rafique pursuant to a sale‑deed, dated 30th of June, 1969 for a sale consideration of Rs. 10,000. The sale mutation bearing No. 29 was sanctioned on 100 of October, 1969.

While the proceedings were pending before the trial Court, Muhammad Rafique died on 31st of October, 1970. The petitioner moved an application on 5th of February, 1971, seeking to implead Muhammad Din as his legal representative on the basis that he was his partner in business and had purchased the land under dispute in equal share. In the application, it was also stated that in case he was not considered as a legal heir then a notice be ordered to be published in a newspaper. Muhammad Din appeared in Court pursuant to a notice issued and filed an application, dated 26th May, 1971 in which he stated that he had objection to being impleaded in the suit, but as he was not a legal heir notices should issue to the legal representatives of the deceased whose names he had mentioned in the application. The Court next ordered notices to the legal representatives for 14‑6‑1971 on which date they appeared and they were given a copy of the amended plaint and were directed to file the written statement. Several adjournments were taken for filing the written statement which was ultimately filed on 20‑5‑1972. In para. 1 of the written statement, a plea was taken that the suit had abated as the application to implead them was filed beyond time. As such the suit should be dismissed as having abated. On such a plea being taken, the trial Court framed a preliminary issue on 21st of June, 1972 as under:

"Whether the suit has abated against defendants Nos. 2 to 7 O. P. D.',"

The trial Court then proceeded to regularise the proceedings as no order, had been passed for the substitution of the legal representatives and held that as the petitioner had failed to file a fresh application or to amend the one already filed even after the disclosure of the names of the legal representatives of the deceased‑respondent by Din Muhammad who had categorically denied being his legal heir, the suit stands dismissed as having abated under Order XXII, rule 4(3), C. P. C. This order is, dated 25th of November, 1974.

A revision was taken to the District .Judge, Sahiwal, who by order, dated 15th of October, 1975, refused to treat it as an appeal and dismissed it holding:

"An application to bring the legal representatives of Muhammad Rafique deceased is not on the record. Muhammad Din is not a legal representative of Muhammad Rafique nor can the said application, dated 10‑1‑1971 be treated as petition under Order XXII, rule 9 of the C. P. C. for 'setting aside the abatement of the suit. The learned trial Court' has exercised jurisdiction vested in it and the impugned judgment does not suffer from any material irregularity or illegality."

The petitioner next moved a second civil revision before the Lahore High Court, Lahore, and a learned Single Judge in the High Court dismissed it in limine on 30th of March, 1976, on the short ground that it was in competent, nonetheless, the learned single Judge proceeded to examine the case on merits and held:

"That neither an application for bringing correct legal representatives on record had ever been submitted by the petitioner nor had he submitted an application for setting aside the abatement. The abate ment being automatic, the suit was rightly dismissed as having abated by the order of trial Court."

Therefore, in his view, the case did not fall within the ambit of Order XXII, rule 9, C. P. C., and the District Judge was correct in not treating the revision as an appeal as it was against an appealable order under Order XLIII, rule 1, C. P. C. The proper course was to make an appli cation for setting aside the abatement alongwith an application under section 5 of the Limitation Act for condoning the delay in filing the application.

After this order of the High Court, the petitioner again filed an application on 5th of June, 1976; seeking to set aside the abatement, in the trial Court. Amongst others,‑ the following two issues were framed:

(a) Whether there are sufficient grounds to set aside the abatement

(b) Whether the application is not maintainable

Under both these issues the finding was against the petitioner. An appeal was taken against this order, which was dismissed by the Additional District Judge, Sahiwal on 22nd of January, 1981 ; and while dismissing it, he held:

"There is no evidence whatsoever on the record to show as to why the plaintiff‑pre‑emptor failed to move an application under Order XXII, rule 4, C. P. C. within time. There was also no evidence as to why application under Order XXII, rule 9, C. P. C. was delayed. In the absence of any such evidence it would be impossible to interfere with the order of the trial Court in this appeal and I shall have to reject the same."

Despite a fresh application having been filed in the trial Court, the petitioner filed a petition for leave to appeal against the judgment of the High Court dated 30th of March, 1976. The petition came up for consideration before a Bench of this Court on 16th of February, 1977, and the following order was recorded:

"The application of section 115, C. P. C., as amended by the Law Reforms Ordinance, 1972, to suits and appeals, which had abated before the Ordinance came into force, is the subject‑matter of the appeal arising out of Civil Petition for Special Leave to Appeal No. 587 of 1972 (Ghulam Haiuer v. Raj Bhari and others). This petition, will, accordingly, be heard at Rawalpindi alongwith that appeal."

Subsequently, on 26th of February, 1978, the Chief Justice granted status quo qua as to possession till the disposal of the petition. Accordingly, it was tagged with Civil Appeal No. 120 of 1973, and both these matters were heard by this Court on the same day. Judgment in Civil Appeal No. 120 of 1973 has been delivered and the same has been dismissed on the ground that the proceedings in the second appeal, in the High Court, had abated.

Mr. S. M. Zafar, learned counsel for the petitioner contended that as the application for impleading the legal representatives was filed within time, the suit could have continued and even a valid decree could have been passed against the estate of the deceased despite the fact that instead of the legal representative a wrong person was mentioned. This refers to the application, dated 5th of February, 1971, and the reply to the appli cation filed by Muhammad Din giving out the names of the legal represent atives to whom notices were issued for appearance on 14th of June, 1971. As the contention turns on the consideration of rules 4 and 9 of Order XXII, it would be of advantage to refer to the unamended rules 4 and 9 of order XXII, C. P. C., which run as under

(1) Where one of two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants alone, or a sole defendant or sole surviving defendant dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit.

(2) Any person so made a party may make any defence appropriate to his character as legal representative of the deceased defendant.

(3) Where within the time limited by law no application is made under sub‑rule (1), the suit shall abate as against the deceased defendant.

(1) Where a suit abates or is dismissed under this Order, no fresh suit shall be brought on the same cause of action.

(2) The plaintiff or the person claiming to be the legal representative of a deceased plaintiff or the assignee or the receiver in the case of an insolvent plaintiff may apply for an order to set aside the abatement or dismissal; and if it is proved that he was prevented by any sufficient cause from continuing the suit, the Court shall set aside the abatement or dismissal upon such terms as to costs or otherwise as it thinks fit.

(3) The provisions of section 5 of the Indian Limitation Act, 1877, shall apply to applications under sub‑rule (2)."

Here as the deceased had died on 31st of October, 1970, the suit as against him automatically abated on 30th December, 1970 under Article 171 of the Limitation Act. Under rule 9 of Order XXII, C. P. C., this abatement could have been set aside provided the plaintiff or the legal representatives of the deceased‑plaintiff were able to prove sufficient cause for his/their failure in not making an application in time and to such condonation of the period beyond 60 days the provisions of section 5 of the Limitation Act were applicable. . But no such application was filed for .the condona tion of delay and instead, only an application for the substitution of a wrong person was filed on 5‑2‑1971 under rule 4 of Order XXII. C. P. C. The limitation for such an application is 90 days under Article 177 from the date of the death of the deceased defendant and this period cannot be extended as the provisions of section 5 of the Limitation Act are not applicable for condoning the delay in the substitution of the legal representatives. Time begins to run under Article 177 from the date of the death of the deceased‑defendant and the plaintiff had to implead the legal representatives of the deceased‑defendant within the prescribed period as according to the language of rule 4 of Order XXII, C. P. C., and in case of failure as provided by sub‑rule (3) of rule 4, the suit abated as against the deceased defendant. Therefore, the application contemplated by Order XXII, rule 4, C. P. C. read with Article 177 of the Limitation Act is one for substituting the legal representatives and not a wrong person. It is only when proper legal representatives are sought to be substituted that the Court is under an obligation to make them a party and continue with the suit. The application, dated 4th of February, 1971, did not satisfy the legal requirements and by itself could not be treated as within time. It is only when a proper application is filed beyond time that a remedy is available under Order XXII, rule 9, C. P. C. provided the plaintiff' is able to show sufficient cause within the meaning of sub‑rule (A I R 1922 Lah. 131) of rule 9 of Order XXII, in which case the Court is empowered to set aside the abatement and to substitute the legal heirs. In this connection reference may be made to Secretary of ‑Ntare v. Jawahir Lai (A I R 1914 All. 94), Shah Muhammad and another v. Khan Bahadur Choudhri Karam 1lahi and others (2) and Muhammad Bakhsh v. Jama (P L D 1969 Lah. 642).

The learned counsel for the petitioner strongly relied on Niroda Sundari Mondal v. Braja Lai Mondal (P L D 1970 Dacca 383), but this case is distinguishable even on facts as these was a substitution of legal representatives in the presence of the parties and subsequently, a review application was filed to seek the reversal of the substitution on the ground that the suit had abated long before the legal representatives were impleaded. But the High Court rejected this application on the ground that if there was such an objection it should have been taken at the time of the substitution of the legal representatives and not later and as no explanation had been given as to why such an objection was not taken it had no merit. There is also an obiter to the effect that the application for substitution like the one in the case under consideration was treated as one for setting aside the abatement where the plaintiff was misled and failed on that account to take appropriate steps due to circumstances of a compelling nature. What was said required evidence to establish those circumstances which is not the case here.

There are other cases such as Kirpa Ram v. Bhagat Chand (A I R 1928 Lah 746), Dina Nath v. Sayaa Habib and others (A I R 1929 Lah 129), Bharu v. Udmi (A I R 1934 Lah 315), Firm Gabrulal v. Court of Wards (z A I R 1933 Nag. 85, Diwan Chand v. Bhagwan Chand (A I R 1933 Nag. 85) and Hassomal Hardasmal v. Pirbux and others (A I R 1933 Sind 36), wherein the applications for the substitution of legal heirs were treated as one for setting aside the abate ment under Order XXII, rule 9, C. P. C. and in each of these cases the existence of sufficient cause for the condonation of delay was a predominant question. Such a treatment of an application under Order XXI1, rule 4, C. P. C. as one under Order XXII, rule 9 was also intended to overcome the technicalities by the failure on the part of the plaintiff to file a separate application under Order XXII, rule 2, for setting aside the abatement fir sufficient cause.

However, the application, dated 5th of February, 1971, could not be treated as such as it was not a proper application under Order XXII, rule 4, C. P. C. The petitioner has failed to explain as to what steps he had taken to find out the legal representatives and if, at all, he was misled as a result of fraud or for a compelling reason to implead a wrong person then he should have said so. In these circumstances, the error is not technical and the benefit of Order XXII, rule 9 could not be availed for setting aside the abatement.

In the ultimate analysis, technicalities apart, the plaintiff is under a legal obligation to establish sufficient cause and if he is able to do so then the Court is empowered to cause the substitution of the legal representatives, and for that matter each case has to be considered on its own merits.

We would like here to point out that pursuant to the observation of the High Court, the plaintiff‑petitioner invoked the jurisdiction o the trial Court by filing an application under Order XXII, rule 9, C. P. C. and the trial Court under a misconception gave its finding that the plaintiff‑petitioner had failed to establish sufficient cause for not filing an application for the setting aside of the abatement under order XXII, rule 9, C. P. C. The learned counsel for the Caveator respondent relied heavily on it as being final, but we are constrained to say that having decided the issue earlier it had become funcius officio and the observation of the High Court could not give to it a jurisdiction to reopen the matter. We would also like to point out that the District Court had treated the order refusing to implead the legal representatives of the deceased‑defendant under Order XXII, rule 4, C. P. C. as one which was not appealable under Order XLIII, rule 1 of the Code of Civil Procedure. If that was so then no second revision lay in the High Court under the amended section 115, C. P. C. and the petition against that order also could not have been filed. As no plea was taken by the Advocate‑on‑Record for the Caveator‑respondent and also for the reason that we are dismissing it on this point as no petition lies against an order passed by a Court subordinate to the High Court.

As to the effect of the Law Reforms Ordinance, 1972, it has been ruled by this Court that the provisions of that Ordinance will have no application to a case where the abatement had taken place before the promulgation of the said Ordinance.

Lastly, as to the continuation of the suit against the estate of the deceased respondent despite the infirmity is again misconceived as what the right of pre‑emption implies is the right of a person to acquire agricultural land in preference to others in the case of sale or redemption, and in the event of success of his claim it leads to his substitution for the vendee. In other words, it constitutes an invasion of the principle of free contract. Such substitution is not possible if there is a clog by reason of the suit having abated as in that event the right could not be legally exercised in the absence of the legal representatives of the vendee. This cannot be equated stricto senso with an action in rem which does not take cognizance of an owner but it determines right in specific property against all the world, equally binding against every one.

For the reasons given above, the petition fails and is hereby dismissed.

M. B. A. Petition dismissed.

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