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Civil Appeal No. 31‑P of 1.972, decided on 16th April, 1985.

(On appeal from the judgment and order of the Peshawar High Court, dated 5th March, 1971, in C. M. No. 10/71).

‑‑‑ Art. 1.85 (3)‑North‑West Frontier Province Pre‑emption Act (XLV of 1950), S. 5 (c)‑Leave to appeal granted on ground that a civil appeal was pending in Supreme Court in which correctness of decision which was followed by High Court in impugned judgment was under consideration.

Majid Khan and others v. Mujahid Khan and others P L D 1966 (W. P.) Pesh. 264 mentioned.

‑‑‑ O. XV, r. 6 & O. V, r. 1 (24)‑Civil Procedure Code (V of 1908), O. XXII, rr. 3 & 4 read with r. 11 [before and after amendment of 1972] ‑Abatement of appeal‑‑Limitation‑Failure of appellant to apply for substitution of legal representatives of deceased party before Supreme Court‑Appeal not automatically abated‑Duty of appel lant‑Registrar, Supreme Court can order substitution of legal representatives on any interested person's application if same is complete in every respect ‑Supreme Court‑Proceedings in Supreme Court not governed by Civil Procedure Code but are regulated by Supreme Court Rules, 1980.‑[Abatement].

There is no specific provision in Order XV of Supreme Curt Rules, 1980 laying down that in case of failure on the part of the appellant to apply for substitution of legal representatives of a deceased party, the appeal would automatically abate. Order XXII, rules 3 and 4 of the code of Civil Procedure. read with rule 11, before it was amended by Ordin0nce XII of 1972 did provide for ipso facto abatement of suit qua the deceased party if his legal representatives were riot brought on record within time prescribed therefor. However a fundamental charge was introduced by the amendments, so that on the failure of the appellant to implead the legal representative of the deceased party to the appeal, within the time allowed by law, the appeal does not abate and the Court is empowered to proceed with the same and pronounce judgment. Such a judgment has the same force and effect as if it had been made or pronounced before the death took place. The position under the Code of Civil Procedure, therefore, is that no appeal can now abate by reason of non‑joinder of legal repre sentatives within the prescribed time allowed by law. It cannot, therefore, be argued, on general principles, so far as the proceedings regulated by the Code of Civil Procedure are concerned, that such proceedings would abate. The reason is not far to seek. The abatement of a proceeding is the result of statutory provisions.

But since the proceedings in Supreme Court are not governed by the Code of Civil Procedure, in any case, the rules contained therein will not determine the procedure applicable to appeals in Supreme Court, which are regulated by the Supreme Court Rules, 1980. There being no provision in these rules for abatement. of appeal on account of non joinder of legal representative thus there is no room for the contention that this appeal automatically abated on such event taking place. It should not be under stood that the Supreme Court is powerless to terminate the proceedings in such eventuality. An application for substitution of legal representatives is to be made within ninety days of the date of death of a party to an appeal. In case no such application is made the general power to dismiss the appeal on account of non‑prosecution has been preserved under rule 2 of Order XV, Supreme Court Rules. The Supreme Court also has power to condone the delay and extend the time for the joinder of legal representatives for sufficient cause.

Abdul Salam and others v. Noor Nisa 1983 S C M R 1012 and Din Muhammad v. Province of Punjab through Collector and others 1984 S C M R 863 distinguished.

Banna and others v. Mst. Hussain Bibi 1983 S C M R 460 not relevant.

Chinar Gul v. Cantonment Board of Peshawar and another 1978 S C M R 44 ref.

‑‑ O. XV, r. 6 & O. V, r. 1 (24)‑Legal representative of deceased respondents made application for condonation of delay for getting them to be impleaded as party‑Such legal representatives were competent to make said application ‑No counter‑affidavit was filed against prayer for condonation of delay by appellant‑Such facts, held, were sufficient to tilt balance in favour of appellant arid Registrar, Supreme Court was justified to order condonation of delay on application made by respondents.

Majid Khan and others v. Mujahid Khan and others P L D 1966 Pesh. 264 and Faqir Muhammad Khan v. Mir Akbar Shah P L D 1973 S C 110 ref.

‑‑ Procedural provisions‑Such provisions are intended to promote interests of justice and not to impede same.

‑‑ S. 5 (c)‑Exemptions‑Words "measuring more than one Kanal" covers both the extent of ownership in a house or in a vacant sitc‑Owning or holding of share of one Kanal in a house would not destroy exemption from pre‑emption‑Where appellant owned one Maria share in jointly held house, his right of pre‑emption would remain unaffected by exemption pleaded by respondent.‑[Interpreta tion of statutes).

Ziarat Gul v. Ahmad Khan and others P L D 1982 S C 96 quoted.

Fida Muhammad Khan, Advocate Supreme Court and Syed Safdar Hussain, Advocate on‑Record for Appellant.

Nur Ahmad Khan Advocate‑on‑Record for Respondent No. 1.

Ex parte for Respondents Nos. 2, 3 and 4.

Date of hearing : 30th March, 1985.

The dispute in this case relates to a house situate in village Bazidu Kohal Khel, Tehsil and District Bannu. Accord ing to the judgment this house originally comprised land marsuring 18 Marlas and was jointly owned by two brothers, namely, Targul and Haji Gul Ahmad. The two brothers partitioned the house in equal shares. Haji Gul Ahmad Khan transferred his half share of the house to his wife Mst. Bakht Bibi through a sale‑deed dated 29‑3‑1942. Mst. Bakht Bibi, the transferee, on her part gifted the said property to Mst. Bibi Rukia by written gift deed dated 17‑6‑1944. The remaining half share of the house which fell to the share of Targul was sold by him to Muhammad Faraz, Hayatullab. Siranjam Khan, sons of Haji Ghulam Ahmad Khan, and Dost Muhammad (appellant) by a registered sale‑deed dated 5‑7‑1965 for an ostensible price of Rs. 2,000. The aforesaid sons of Haji Ghulam Muhammad then sold their shares in the house to their nephew Dost Muhammad (appellant) by a registered deed dated 9‑6‑1966.

2. In March, 1966. Mst. Bibi Rukia brought a suit for possession by, pre‑emption in respect of nine Marlas of the suit house, which was purcha sed by Muhammad Sarfraz, Hayatullah, Siranjam and Dost Muhammad from Targul. The last mentioned defendant resisted the suit and raised the plea of exemption of the suit property from pie‑emption under section 5 (c) of the N.‑W. F. P. Preemption Act, 1950 (hereinafter called the Act).

3. The trial Court dismissed the suit by its judgment dated 21‑11‑1966, holding that the suit property was exempted from pre‑emption. The appeal filed by Mst. Bibi Rukia was, however, allowed by the learned District Judge, Derajat, Camp Bannu. and the finding of the trial Court was reversed on the authority of Majid Khan and others v. Mujahid Khan and others (PLD 1966 (W.P) Pesh 264) and it was held that the plaintiff Mst. Bibi Rukia was entitled to a decree for pre emption. From this judgment and decree Dost Muhammad the present appellant alone went up in second appeal before the Peshawar High Court. A learned Single Judge of the High Court following the earlier Full Bench judgment of the same Court referred to above dismissed the appeal of Dost Muhammad vide judgment dated 18‑2‑1971.

4. Leave was granted by this Court from the aforesaid judgment on 17‑4‑1972, on the ground that a Civil Appeal No. 4‑P of 1969, web pending in this Court in which the correctness of the view taken in the Full Bench decision of the Peshawar High Court in Majid Khan's case was under consideration.

5. Learned counsel for respondent No. 1 conceded before us that as the view taken by the Full Bench of the Peshawar High Court, on which the impugned judgment was based, has been overruled by this Court, he was not in a position to argue that the appellant is entitled to plead exemption under section 5 (c) of the Act as a complete detence to the suit filed by Mst. Bibi Rukia. However, he referred to certain supervening events by reason of which according to him the present appeal has already abated and is liable to be dismissed as such. These events are that after the leave was granted and the present appeal was pending in this Court. Mst. Bibi Rukia is said to have expired on 21‑3‑1976. but no application was made the appellant to bring her legal representatives on record. Eventual on 9‑8‑1981, an application was submitted by the learned counsel for respon dent disclosing the factual of the death of Mst. Bibi Rukia as well as her husband and special attorney, Jaffar Khan (who was not a party to the suit but the first appeal was filed by her through him) also said to have expired on 9‑5‑1981. It was maintained in this application that by reason of non‑joinder of the legal representatives of these respondents the appeal had abated and, therefore, the leave granting order was liable to be rescin ded. However, in paragraph 5 of the application it was stated as under :‑‑ .

"That, under these compelling circumstances, the L. Rs. of the deceased respondent and her husband and special attorney, have themselves filed an application for entering their names in register of appeal as such L. Rs. and have also entered appearance so that they may be able to move the present application." '

Simultaneously Mr. Nur Ahmad Khan, A. O. R. entered appearance for the legal representatives (vide page 25 of the original file). As this application for substitution of legal representatives of the deceased respondents was filed beyond the time prescribed by rules therefor, the office raised this objection and called upon the learned counsel for the legal representatives to submit an application for condonation of delay. After some proceedings, eventually Mr. Nur Ahmad Khan, A. O. R. of legal representatives stated that he has already submitted such application for condonation of delay and forwarded a copy, thereof to the office (which is at page 46 of the original file). Thereafter, the learned A. O. R. appearing for the appellant was also called upon to file an application for condonation of delay as according to the learned counsel for the respondents it was primarily the duty of the appellant to substitute the legal representatives of the deceased respondent but as no steps were taken by him to do so the appeal bad abated. On 25‑1‑1984, an application on‑behalf of the deceased respondent No. 1 and her legal representatives was submitted making a formal request that the application for early disposal of the case may be taken up and suitable action taken in the matter, as the needful had already been done by the respondents themselves although it was the duty of the appellant to have brought the legal representatives of the deceased respondents on record.

6. At this stage the appellant submitted application dated 25‑4‑1984, for bringing the legal representatives of Mst. Bibi Rukia on record. Subsequently an application for condonation of delay was also submitted on 31‑10‑1984 on behalf of the appellant on the ground that the delay was not intentional "as my client remains in a remote village of District Bannu and it was with great difficulty that I succeeded in contacting him and order of the Registrar dated 22‑11‑1984, on this application of the appellant condoning the delay and allowing the substitution of the legal represen tatives of Mst. Bibi Rukia to be brought on record subject to all just exceptions.

7. It has been urged on behalf of the respondents that the appellant is guilty of negligence in not having applied for substitution of the legal representatives, in spite of information to his knowledge that respondent No: 1 had expired. According to the learned counsel in the application of the respondents made as early as 9‑8‑1981, it was revealed that Mst. Bibi Rukia bad died on 21‑3 1907, yet the appellant has chosen to make the application after the lapse of nearly three years in 1984. He argued that in these circumstances no case for condonation of delay has been made out. It was further submitted by the learned counsel that by the lapse of time prescribed for making application for bringing the legal representatives of the deceased party in terms of Order XV, rule 7. Supreme Court Rules, 1980, the appeal ipso facto abated by operation of law and the appellant is, therefore, not entitled to revive the same on a belated application for substitution of legal representatives. Learned counsel for the appellants, on the other hand, argued that there is no provision in the Supreme Court Rules for automatic abatement of appeal in consequence of non‑joinder of the legal representatives of the deceased party, although rule 7, referred to above, does prescribe a period of ninety days for making an application to bring on record the legal representatives of the appellant or respondent. Learned counsel further submitted that in any case there was no intentional delay on the part of the appellant to make the application as he resides in a remote village and it was with great difficulty that the appellant was contacted to procure the death certificate of the deceased respondent.

8. We have carefully examined the provisions of Order XV of the Supreme Court Rules which, inter alia, deals with the change of parties. Rule 2 of this order reads as follows :‑

"If an appellant fails to take any steps in the appeal within the time fixed for the same by these Rules, or, if no time is specified, it appears to the Registrar that the appellant is not prosecuting his appeal with due diligence, the Registrar shall call upon‑.him to show cause why the appeal should not be fixed before the Court for dis missal on account of non‑prosecution."

Rule 6 of Order XV, which specifically deals with the substitution of parties on account of death of a party is in the following terms :‑

"Where at any time after the grant of leave to appeal the record is found to be or becomes defective by reason of the death or change of status of a person who was a party to the decree or other decision by the Lower Court, it shall be the duty of the appellant to make an application in that behalf, and the Court, may on such application, or on application by any other person interested, grant a certificate showing who in the opinion of the Court, is the proper person to be substituted or entered on the records, in place of, or in addition to, the party on the record, and the name of such person shall there upon be deemed to be so substituted or entered on the record as aforesaid."

It was rightly pointed out by the learned counsel for the appellant that rule 6 casts a duty on the appellant to make an application for substitution of legal representatives but the Court can act and order substitution of the legal representatives on the application by any other person interested. Therefore, the submission was, that the Registrar could order substitu tion of the legal representatives on their own application which was complete in every respect.

9. Reference was made on behalf of the respondents to Abdul Salam and others v. Noor Nisa (1983SCMR1012), Banns awl others v. Mst. Hussain Bibi (1983SCMR460) and Din Muhammad v. Province of Punjab through Collector and others (1984 S C M R 863). The second case referred to above is not relevant, in so far as, the question in that case was of non‑joinder of the legal representatives of deceased appellant in the High Court. So far as the other two cases are concerned the decision therein turned on the peculiar facts of these cases, as the request for condonation of delay was turned down on the ground that no substantial reasons for such prayer were given. On a proper examination of the rules contained in Order XV, we find that there is no specific pro vision laying down that in case of failure on the part of the appellant to apply for substitution of legal representatives of a deceased party, the appeal would automatically abate. Order XXII, rules 3 and 4 of the Code of Civil Procedure read with rule 11 before it was amended by Ordinance XII of 1972 did provide for ipso facto abatement of suit qua the deceased party if his legal representatives were not brought on record within time prescribed therefor. However, a fundamental change was introduced by the amendments, so that on the failure of the appellant to implead the legal representatives of the deceased party to the appeal, within the time allowed by law. the appeal does not abate and the Court is empowered to proceed with the same and pronounce judgment. Such a judgment has the same force and effect as if it had been made or pronounced before the death took place. The position under the Code of Civil Procedure, there fore, is that no appeal can now abate by reason of non‑joinder of legal representatives within the prescribed time allowed by law. It cannot, therefore, be argued, on general principles, so far as the proceedings C regulated by the Code of Civil Procedure are concerned, that such pro ceedings would abate. The reason is not far to seek. The abatement of a proceeding is the result of statutory provisions.

10. But since the proceeding, in this Court are not governed by the Code of Civil Procedure, in any case, the rule, contained therein will not determine the procedure applicable to appeals in this Court, which are regulated by the Supreme Court Rules, 1980. There being no provision in these rules for abatement of appeal on account of non‑joinder of legal representatives we feel that there is no room for the contention that this appeal automatically abated on such event taking place. We should not be understood to say by this that the Court is powerless to terminate the proceedings in such eventuality. As pointed out an application for sub stitution of legal representatives is to be made within ninety days of the date of death of a party to an appeal. In case no such application is made the general power to dismiss the appeal wt account of non‑prosecution‑ has been preserved under rule 2 of Order XV, Supreme Court Rules. The Court also has power to condone the delay and extend the time for the joinder of legal representatives for sufficient cause. In this connection reference may be made to Chinar Gul v. Cantonment Board of Peshawar and another (1978 S C M R 44).

11. In this case the application for bringing the legal representatives on record has already been allowed by the Registrar by virtue of his power under Order V, rule 1 (24). The only question for consideration is the objection now raised by the respondents that the appellant is not entitled to the indulgence for extension of time. The facts are, as detailed above, that the legal representatives themselves made an application for their substitution in place of the deceased respondent and also made an applica tion for condonation of delay. This application is still on .the record and as argued by the appellant, it can be allowed because they were competent to make the same. In any case this fact can be taken note of while con sidering the objection now taken by them, on the principle of estoppel. We also find that no counter‑affidavit was filed against the prayer for condonation of delay by the appellant. These facts are sufficient to tilt the balance in favour of the appellant and we are not inclined to up set the order passed by the Registrar condoning the delay. After all, the pro cedural provisions are intended to promote the interests of justice and not to impede the same. We, therefore, reject the objection raised by the respondents and hold that the Registrar was justified in extending time for the application for bringing the legal representatives on record.

12. On the merits, as already pointed out, it has been found as a fact that Eid Akbar, father of Dost Muhammad Khan,. had made a gift on 19‑3‑1966, by a registered instrument giving, one Marla out of his house to his son Dost Muhammad. Mst. Rukia Bibi' plea was that since Dost Muhammad, appellant jointly owned a house in the same village, his right of pre‑emption was1barred under section 5 (c) of the N.‑W. F. P. Pre emption Act. In the Full Bench judgment of the Peshawar High Court. Majid Khan and others v. Mujahid Khan and others, it was held that the words "measuring more than one Kanal" only qualified the words "vacant site and not the word "house". The learned Judge in the High Court in the present case, following the aforesaid view accepted the plea of Mst. Rukia Bibi that as the appellant had a share in a house in the village, irrespective of its area, the exemption from pre‑emption contained in section 5 (c) was not attracted. However, in Civil Appeal No. 4‑P of 1969, referred to above, vide reported judgment, Faqir Muhammad Khan v. Mir Akbar Shah (PLD1973SC110), this Court did not approve of the Full Bench s view. It was observed :‑

"We find ourselves unable to approve of the Full Bench decision which appears to be opposed to the ordinary grammatical construction of the language of clause (c) of section 5 of the N.‑W. F. P. Pre emption Act, 1950.".

In a recent pronouncement in Ziarat Gul v. Ahmad Khan and others (PLD1982SC96) it was held that words "measuring more than one Kanal" covered both the extent of ownership in a house or a vacant site. Owning or holding of a share of one Kanal in a house, was held not to destroy the exemption from pre‑emption. In the present case the appellant owned one Marla share in the jointly held house and, therefore, his right of pre‑emption remains unaffected by the exemption pleaded by the respondents. This position of law is now conceded by the learned counsel for the respondents.

13. For the foregoing reasons, we set aside the judgments and decrees passed by the District Judge and the High Court and allow the appeal, The result is that the decree passed by the trial Court shall stand restored, In the circumstances of the case the parties are left to hear their own costs.

M. B. A. Appeal allowed.

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