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(a) Constitution of Pakistan (1973)‑

‑‑ Art. 185(3) Law Reforms Ordinance (XII of 1972), Sched. (C. P. C.), S. 6‑Abatement of appeal‑Leave to appeal granted to consider whether there could be any abatement of appeal after en forcement of Law Reforms Ordinance, 1972 in the context of its being a procedural amendment and whether High Court was in error in not granting reasonable time for depositing decretal amount particularly when decree of trial Court was alive even if appeal had abated. [Abatement].

(b) Civil Procedure Code (V of 1908)‑‑

‑ O. XXII, r. 3 and S. 148‑Limitation Act (IX of 1908), S. 5‑Substitution of legal representatives‑Limitation ‑ Delay‑ Condonation of‑‑Appellant (3n educated person) and his father fully knew about pendency of appeal but failed to take steps to get himself and other legal representatives substituted within time ‑Case being that of inexplicable negligence and carelessness on part of appellant in not pursuing appeal, discretion exercised by High Court in not condoning delay, held, was judicious thus not open to an attack‑Some of legal representatives being minors and some of them pardahnashin ladies‑Decree being indivisible, held further, would have fallen through even if appeal had abated qua one legal representative.‑[Condonation of delay].

(c) Civil Procedure Code (V of 1908)‑

‑‑‑ O. XXII, r. 3 and S. 148‑Punjab Pre‑emption Act (I of 1913), S. 22‑Law Reforms Ordinance (XII of 1972), Sched. (C. P. C.), S. 6‑Where abatement had taken effect before enforcement of Law Reforms Ordinance, 1972, it will not give continuity to proceedings as it was not retrospective in operation‑Matter had to be decided in accordance with law to existence then‑Appellants, therefore, could not get any benefit from provisions of Law Reforms Ordinance, 1972 enforced later.

Sardar Noor Hussain v. Chief Settlement Commissioner etc. P L D 1983 S C 62 and Khawaja Jalal Din v. Chief Settlement Commissioner 1985 S C M R 1359 fol.

(d) Punjab Pre‑emption Act (I of 1913)‑

‑‑‑ S. 22‑Civil Procedure Code (V of 1908), O. XXII, r. 3 and S. 148‑Law Reforms Ordinance (XII of 1972), Sched. (C. P. C.), S. 6 ‑‑ Right of pre‑emption not a personal right‑Legal representative failing to take steps to get themselves substituted within time Delay not condoned and appeal abated‑Held, there was no legal representation of right of deceased to continue with appeal and in absence of such representation appeal stood totally effaced with the result that Court had no jurisdiction to pass an order, extending time under S. 22, Punjab Pre‑emption Act, 1913 or S. 148, C. P. C. for payment of sale price, in favour of legal representatives of deceased appellant‑Such question being that of jurisdiction, if at all, an order was passed that would be a nullity in eye of law.

Imam‑ud‑Din and another v. Sadarat Rai 5 I C 897; Jhenak Singh and another v. Ambika Prasad and others A I R 1923 All. 414(1) and Amarsangji Indrasangji v. Desai Umed A I R 1925 Bom. 290 ref.

(e) Punjab Pre‑emption Act (I of 1913)‑‑

‑‑ S. 22‑Civil Procedure Code (V of 1908), O. XX, r. 14(1) and S. 100‑Law Reforms Ordinance (XII of 1972), Sched. (C. P. C.), S. 6‑Constitution of Pakistan (1973), Art. 185(3)‑Existence of decree in favour of deceased appellant‑When full sale price is deposited in accordance with order of Court only then title passes to successful pre‑emptor, under O. XX, r. 14(1) (a), C. P. C.‑Where full price was not paid by deceased appellant, decree held, fell through an appeal having abated under O. XX, r. 14(1)(b) and suit stood dismissed on date on which Court declared appeal to have abated‑Interlocutory order passed in second appeal and by Supreme Court at petition stage were not consequential and could not save decree in view of effacement of proceedings in High Court.

Malik Hadayat Ullah and 2 others v. Murad Ali Khan P L D 1972 S C 69 and Ghulam Muhammad and another v. Irshad Ahmed and another P L D 1982 S C 282 distinguished.

Ahmad Raza Khan Qasuri, Advocate Supreme Court of Pakistan and S. Inayat Hussain, Advocate‑on‑Record (absent) for Appellants.

Ch. Sardar Khan, Advocate‑on‑Record for Respondents.

Date of hearing : 5th November, 1985.

MUHAMMAD HALEEM, C. J.

‑This appeal, by leave, arises from the judgment of the Lahore High Court, Lahore, dated 22nd of November, 1972, by which R. S. A. No. 325 of 1968, was declared to have abated.

Leave to appeal was granted to consider : firstly, whether there could be any abatement of the appeal after the enforcement of the Law Reform Ordinance No. XII of 1972 to the context of its being a procedural amendment ; and, secondly, whether the High Court was in error in not granting reasonable time for depositing the decretal amount particularly when the decree of the trial Court was alive even if the appeal had abated.

The facts giving rise to this appeal are that Ghulam Rasool and others sold their agricultural land to Mst. Raj Bharri and others, respondents herein, for Rs. 12,000. Accordingly, sale Mutations Nos. 1116 and 1117 were entered and sanctioned on 17‑12‑1962. Ghulam Haider, predecessor- in‑interest of the present appellants, pre‑empted the sale through a suit on the basis that be had a superior right as being a co‑sharer in the same Khata bearing No. 116. He further disputed the sale consideration as being fictitious and asserted that only Rs. 6,000 were paid as sale price for the land measuring 24 Kanals and 1 Marla. The trial Court decreed the suit holding the sale consideration to be Rs. 7,215 and directing Ghulam Haider to deposit this amount by 22‑6‑ 1965 failing which the suit shall stand dismissed.

In appeal, the first appellate Court enhanced the sale price to Rs. 12,000 but dismissed the appeal in all other respects and ordered the decree‑holder to deposit the amount by 30th of April, 1966, failing which the suit shall stand dismissed.

Not being satisfied with the enhancement of the sale price, Ghulam Haider went in second appeal and a stay against the deposit of pre‑emption money in excess of Rs. 7,215 was granted on 28‑4‑1966 ; and during its pendency, he expired on 1‑10‑1968. An application for bringing his legal representatives on record was filed on 8‑4‑1969, and they were allowed to be impleaded subject to all just exceptions.

At the bearing of the appeal, the respondents objected to the conti nuance of the appeal as having abated and further submitted that as no sufficient cause was shown for the substitution of the legal heirs, the delay was not liable to be condoned. The High Court, to detail, examined the delay occasioned for not substituting the heirs within time and the explana tion given therefore, and reached the conclusion that Muhammad Iqbal who had been prosecuting the suit and the appeal alongwith his father fully knew about the pendency of the appeal, but failed to take steps to get himself and the other legal representatives substituted within time. In holding so the High Court took note of the fact that Muhammad Iqbal was literate and was serving as a Sub‑Inspector in the Co‑operative Depart ment at Jhelum. Again as to the .two of the legal heirs being minors and six others being Pardahnashin ladies, the High Court held that there was no point to dealing with their cases on a different footing as the decree was indivisible and if the appeal had abated against one it would have abated against all of them. In its ultimate analysis it held that it was a case of inexplicable negligence and carelessness on the part of Muhammad Iqbal in not pursuing the appeal and refused to condone the delay.

As to the effect of the Law Reforms Ordinance, the High Court reached the following conclusion upon an examination of case‑law:

"Bearing these principles in mind and following the dictum of the Supreme Court with respect I find that in the instant case the appeal bad admittedly abated after the lapse of ninety days of the death of Ghulam Haider, i.e., much before the Law Reforms Ordinance (XII of 1972) came into force. Now till such time the abatement is set aside, the petitioners have no right to continue the appeal as legal representatives. The respondents had acquired a corres ponding right to defeat the petition, which has been refused on merits. If the alteration in procedure is permitted to be applied retrospectively to this pending petition it would cause great injustice to the respondents so as to deprive them of the right which had accrued to them before the change came in."

As for not granting time for the deposit of the decretal amount, the High Court held as the "action fails what is incidental fails also". Josiam Tiruvengadachariar and another v. Sawmi Iyengar alias Venkatachariar and others (I L R 34 Mad. 76)".

On the question whether the High Court was justified in not condoning the delay, we are of the view that the discretion exercised by the High Court in not condoning the delay was judicious and is not open to an attack. The learned counsel, however, contended that some of the legal representa tives being minors and some of them Pardahnashin ladies, their case should have been adjudged on a different footing. But this argument again is without any legal justification as the High Court has correctly said that it would not have advanced the case of these persons as the decree was indivisible and would have fallen through even if the appeal had abated qua one legal representative.

Coming now to the next question as to the effect of the Law Reforms Ordinance (XII of 1972) on pending proceedings, this point again needs no further examination as it stands concluded by the judgment of this Court in Sardar. Noor Hussain v. Chief Settlement Commissioner etc. (P L D 1983 S C 62) and Khawaja Jalal Din v. Chief Settlement Commissioner (1965 S C M R 1359). 1n both These decisions it has been laid down that where abatement had taken effect before the enforcement of the Law Reforms Ordinance, 1972, it will not give continuity to the proceedings as it is not retrospective in operation. The effect of this dictum is that the matter had to be decided in accordance with the law in existence then. Accordingly, the appellants cannot get any benefit from the provisions of this Ordinance enforced later.

Before entering on the main discussion I would like to point out that the deceased appellant, by an order of this Court dated 21st of January, 1973, was ordered to deposit the full price as decreed by the first appellate Court by or before the 2nd of February, 1973 But as to whether this amount had, in fact, been deposited is not apparent from the record. Be that as it may, in this milieu the appeal had abated.

Abatement, as it is defined in the Oxford English Dictionary, Volume 1 (1933), page 10, means : "In its present most general, signification it relates to writs or plaints, and means the quashing or destroying the plaintiff's writ or plaint ; state of being quashed or annulled." This definition conveyes a jurisdictional implication as would be presently seen.

As the right of pre‑emption is not a personal right and attaches to and runs with the land, it survived to the legal representatives of the deceased appellant on his demise. But since the legal representatives failed to take steps to get themselves substituted within time in accordance with Order XXII, rule 3, C. P. C., the High Court did not condone the delay and declared the appeal to have abated. The legal consequence, therefore, is that there was no legal representation of the right of the deceased appellant to continue with the appeal ; and in the absence of such representation the appeal stood totally effaced ; with the result that the Court had no jurisdiction to pass an order, extending the time under section 22 of the Punjab Pre‑emption Act or section 148, C. P. C. for the payment of the sale price, in favour of the legal representatives who ha4i no locus standi to represent the deceased appellant. The question is one of jurisdiction and if, at all, an order had been passed it would have been a nullity in the eye of law. See Imam‑ud‑Din and another v. Sadarat Rai (5 I C 897), Jhenak Singh and another v. Ambika Prasad and others (A I R 1923 All. 414) and Amarsangji Indrasangji v. Desai Umed (A I R 1925 Bom. 290).

As to the existence of the decree in favour of the deceased appellant it is settled law that it is only when the full sale price is deposited in accordance with the order of the Court that title pastes to the successful pre‑emptor under Order XX, rule 14(1)(a). This not having been done by the deceased appellant the decree also fell through on the appeal having abated under Order XX, rule 14(1)(b) and the suit stood dismissed on the date on which the Court declared the appeal to have abated. The inter locutory orders passed in second appeal and by this Court at the petition stage are not consequential and cannot save the decree in view of the effacement of the proceedings in the High Court.

Mr. Ahmad Raza Qasuri, learned counsel for the appellants relied on Malik Hayat Ullah and 2 others v. Murad Ali Khan (P L D 1972 S C 69) and Ghul.1m Muhammad and another v. Irshad Ahmed and another (P L D 1982 S C 282), but these cases are distinguishable on facts as no question of abatement was involved in them.

Accordingly, the appeal fails and is hereby dismissed with costs.

M. B. A. Appeal dismissed.

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