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Civil Appeal No. 103 of 1973, decided on 4th May, 1985.
(Against the judgment and order, dated 2‑11‑1972 of Lahore High Court, Lahore in Writ Petition No. 933/11 of 1965).
‑‑‑Art. 185(3)‑‑Civil Procedure Code (V of 1908), O.XXII‑‑Leave to appeal granted to examine whether in a petition filed in constitutional jurisdiction of High Court penal provisions of O.XXII, Civil Procedure Code, apply as much as enabling provisions of said Code.
‑‑‑O. XXII, rr. 1 & 2‑‑Limitation Act (IX of 1908), Art. 177‑‑Legal representatives, impleading of‑‑Limitation‑‑Abatement of appeal‑‑High Court arriving at finding of fact that date of knowledge of death of respondent as disclosed by appellant for claiming condonation of delay and for getting abatement set aside, was not believable‑‑Application of appellant was, therefore, held, to be hopelessly barred by time and on that account abatement of appeal not set aside‑‑Penal provisions of O.XXII Civil Procedure Code, held, would apply as much as enabling provisions thereof in a petition i in constitutional jurisdiction‑‑Since on finding of fact, reached by High Court, proceedings had clearly abated, Supreme Court would not interfere in discretion of High Court based on such finding of fact.
Ch. Muhammad Iqbal, Advocate Supreme Court for Appellant. Respondents Nos. 1, 2 6 and 7: Ex parte.
Malik Maqbool Elahi, Advocate Supreme Court and S. Inayat Hussain, Advocate‑on‑Record for Respondents No. 4.
Date of hearing: 4th May, 1985.
Leave to appeal was granted to examines whether in a petition filed in the constitutional jurisdiction of the High, Court, the penal provisions of Order XXII apply as much as the enabling" provisions of the Civil Procedure Code as held in Hussain Bakhsh v. Settlement Commissioner, Rawalpindi P L D 1970 S C 1.
The appellant had filed a constitutional petition challenging the order passed by the delegate of the Chief Settlement Commissioner depriving him of a portion of the property bearing No. P. 134, Ward No. 7, Street No. 4, Montgomery Bazar, Lyallpur. Ghulam Hussain the main respondent and the contesting party died on 19th of July, 1967 and the application for bringing his legal representatives was filed on 15th of September, 1971 disclosing that as the aforesaid respondent was residing at Rabwah and had died there he could come to know of his death only on 9th of September, 1971 and not earlier and had forthwith after ascertaining his legal representatives made application for bringing them on record. He also sought condonation of the delay in making the application and prayed for setting aside the abatement. This application was contested and issue was framed and the learned Judge recorded the finding that the death of Ghulam Hussain had taken place away from the ordinary place of residence of the appellant and he could not possibly know of it immediately. Nevertheless, the date of knowledge as disclosed by the appellant for claiming condonation of delay and for getting abatement set aside was not believed and the application was held to be hopelessly time‑barred and on that account the abatement of the appeal was not set aside.
The question whether the penal provisions of the Civil Procedure Code govern the procedure in constitutional petitions as well stands finally decided by this Court in numerous cases. For example, in Abdul Ghani v. Settlement Commissioner and 2 others 1971 S C M R 98 it was held that in the absence of the persons to be adversely affected by, the quashment of an order in the proceedings under Article 98 of the' Constitution of 1962 no effective order of quashment can be made and on that principle it was held necessary to implead, and that too within, time, the heirs of a deceased respondent. The same view was taken in Amanullah Khan etc. v. Member, Board of Revenue (Consolidation) Punjab 1981 S C M R 777, and Sardar Noor Hussain v. Chief Settlement. Commissioner, etc. P L D 1983 S C 62.
On the findings of fact recorded by the learned Judge in the High Court, the proceedings had clearly abated and we would not like to interfere in the discretion of the learned Judge, based on such finding of fact giving effect to the abatement as such and not setting it aside on the request of the appellant. This appeal fails and is dismissed with no order as to costs.
M.Y.H Appeal dismissed
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