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Suit No. 48 of 1958, decided on 15th August 1961.

O. XXII, r. 9 (2) Abatement‑Plaintiff not negligent in bringing legal representatives on record within time‑Sufficient cause held out for not applying for setting aside of abatement in time‑Court can set aside abatement‑Counsel for plaintiff getting notice of death of one of defendants in previous suit but not informing his client‑Omis sion not lack of duty, though amounting to lack of extra‑vigilance --Rule of procedure of High Court where counsel practising previously different --‑ Presumption of counsel's being misled- Presumption that knowledge of counsel is knowledge of plaintiff --‑ Rebuttable --‑ Abatement set aside in circumstances of case.

Dinabandhu Sahu v. Judamoni Mangaraj and others A I R 1954 S C 411 rel.

Samad Khan for Plaintiffs.

Lari and Haleem for Defendants 3 and 4.

Mazhar Ali Alvi for Defendants 5 and 6.

Dates of hearing : 15th, 16th March ; 16th and 17th May 1961.

This is an application of the plaintiff's for setting aside the abatement which has resulted from the death on the 5th of December 1957, of Mst. Khatija Bai, defendant No. 1.

2. The application has been well argued by counsel for the parties and with command-able thoroughness by counsel for the plaintiffs. Various aspects that are involved in the consideration of the application have been discussed with reference to a number of facts making it necessary that the background should be stated in some detail.

3. The suit is for a declaration that a wast and valuable piece of land measuring about 400 acres, which forms a part of the suburbs of Karachi and is shown in the plan annexed to the plaint, belongs to the plaintiff's, namely the Sind Industrial Trading Estates, Limited. Defendants Nos. 1 to 6, who are the heirs of one Umedali Shah, admittedly reside on itand claim to be Its owners. In exercise of this claim, they have sold and given on lease many plots of land to several persons, among whom are defendants Nos. 7 to 12. The plaintiffs, therefore, further claim that defendants Nos. 1 to 6 be restrained from interfering with the proprietary rights of the plaintiffs and that possession should be taken from defendants Nos. 7 to 12 of those plots of land which have been transferred to them and on some of which they have erected superstructures. Mst. Khatija Bat and Saheb Shah were impleaded as defendants Nos. 1 and 2 respectively in their capacity of being the heirs of Umedali Shah as well as transferors of plots of land.

4. One Muhammad Ibrahim had formerly filed a suit bearing No. 80 of 1950, relating to more or less the same, property against the Sind Industrial Trading Estates Limited, Umedali Shah (after him his legal representatives) as well as the Federa tion of Pakistan and the Karachi Municipal Corporation. Mst. Khatija Bai and Saheb Shah became defendants Nos 2 (a) and 2 (b) in that suit as two of the legal representatives of Umedah Shah. Saheb Shah died on 3‑11‑1952; therefore, Muhammad Ibrahim applied for bringing his legal representatives on record. Notice of that application was served on the parties to the suit and his legal representatives were brought on record on the 26th of February 1953. Subsequently, Mst. Khatija Bai died on the 5th of December 1957 ; therefore, Muhammad Ibrahim applied for bringing her legal representatives on record. Notice of that application was served on Mr. Samad Khan, Bart., as counsel for the Sind Industrial Trading Estates Ltd., defendant No. 1 in that suit, on the 30th of December 1957. The application was granted without objection from the defendants on the 10th of March 1958, and the legal representatives of Khatija Bai were brought on record. That suit was dismissed on the 23rd of April 1959.

5. During the pendency of that suit, the Sind Industrial Trading Estates Ltd., have instituted the present suit on the 27th of May 1952, through their counsel Dr. Mahmud. After the delay of a number of years resulting from various causes it came before the Court for final hearing on the 28th of April 1960, Wahiduddin Ahmad, J., heard counsel partly but adjourned the hearing of the case because Mr. Muhammad Halim, counsel for Saleh Shah and Ismail Shah, defendants Nos. 3 and 4, brought to the notice of the learned Judge during the course of arguments that Mst. Khatija Bat had died in 1956 or 1957, but her legal representatives were not brought on record in this suit. Counsel, therefore, contended that the suit had abated wholly. Time was granted to Mr. Samad Khan to consider the situation.

6. On the 7th of May 1960, he made the present Application for setting aside the abatement resulting from her death and for leave to bring her legal representatives on record. Defend ant No. 3 replied to it by submitting a counter‑affidavit dated the 10th of May 1960. He has stated in it the date of the death of Mst. Khatija Bat and alleged that the plaintiffs were aware of It because of the service on the 30th of December 1957, of the notice of the application that was made by Muhammad Ibrahim In Suit No. 80 of 1950, on Mr. Samad Khan. It is further pointed out that Saheb Shah had died on the date mentioned above and that his death was also in the knowledge of the plaintiffs because of the application made by Muhammad Ibrahim in the previous suit and service of Its notice on the parties to that suit. It is contended on the basis of these allegations that the plaintiffs were negligent in not bringing legal representatives of the two dead defendants on record within the time allowed for this purpose. The plaintiffs submitted their counter‑affidavit on the 11th of May 1960, stating that they had no information of the death of Mst. Khatija upto the 28th of April 1960, when Mr. Muhammad Halim disclosed this fact in Court during the course of arguments, and that Saheb Shah had long ceased to be a defendant because he had been given up as a defendant making it unnecessary that his heirs should be brought on record and that in any case his legal representatives were already on the record of this case.

7. The last fact has not been correctly stated because certain persons claiming to be the heirs of Saheb Shah applied on the 13th of November 1952, to be impleaded as defendants in this case, and notices of that application were ordered on the 17th of February 1953, to be issued to the parties of this case but the application was struck off under rule 128 of the Sind Chief Court Rules (O. S.) on the 15th of September 1953, because charges for issuing notices were not paid by the applicants; yet Ahmed Shah, defendant No. 5 submitted a written statement on the 13th of April 1954, for himself, for Ghulamali Shah, a minor as his guardian, and for Abdullah Shah as his next friend' in the capacity of being the heirs of Saheb Shah. Moreover, Issue No. 2 recognises the representation of the heirs of Saheb Shah in the following terms:

"Have defendants Nos. 5 and 6, as heirs of Saheb Shah, any title to the land described in para. 2 of the plaint "

It appears that owing to a general recognition that the heirs of Saheb Shah were before the Court, Dr. Mahmud, who appeared for the plaintiffs on the 22nd of July 1954, made a statement giving up Saheb Shah as a defendant.

8. In these circumstances, the contention cannot be that the legal representatives of Saheb Shah have not been brought on record. What may be canvassed is that all of his legal repre sentatives have not been impleaded; therefore, the effect of the omission may be open to examination keeping in view the conduct of those who did not prosecute their application to be impleaded as such and rule 5 of Order XXII, C. P. C. This might have been the reason why Mr. Mohammad Halim did not contend before Wahiduddin Ahmad, J., that the suit had abated in relation to the death of Saheb Shah, but an indirect advant age has been sought to be taken by referring to it more or less by the way in the counter‑affidavit dated the 10th of May 1960.

9. The reel questions for consideration are

(a) Whether the suit has wholly abated' (in the language of the defendants, to be more precise, ceased to be maintainable) in relation to the death of Mst. Khatija Bal or abated against her legal representatives only ; and

(b) Whether the abatement should be set aside I shall first examine the second question for should the abatement be set aside, it will be set aside; irrespective of its extent or Impli cations.

10. An abatement should not be set aside In view of rule 9 (2) of Order XXII, C. P. C., unless it is "proved" that the plaintiffs were "prevented by any sufficient cause" from impleading the legal representatives of Khatija Bai and "continuing the suit" against them after abatement by getting it set aside within time. In other words, I cannot set aside the abatement as a matter of course or lightly, but have to be satisfied within the meaning of the word proved' as defined in section 3 of the Evidence Act that the plaintiffs did not implead the heirs within 60 days of the death and did not apply for setting aside the abatement within 90 days after it, because they were prevented from doing so by a sufficient cause. They cannot be said to have been prevented' unless there were circumstances which rendered futile the exercise of such effort as Is expected of an ordinary prudent man in this respect; nor can sufficient cause' be said to have existed to prevent them unless there was absence of neglig ence on their own part. If it is proved that they were not negligent then I should take a liberal view of "sufficient cause" because that is the connotation of the expression as pointed out by the Supreme Court of India in Dinabandhu Sahu v. Jadumoni Mangaraj and others (AIR 1954 SC 411). If there was sufficient cause that prevented the continuance of the suit" against the legal representatives, then I have to grant the benefit of section 5 of the Limitation Act, as contemplated by Order XXII, rule 9 (3), J C. P. C., itself.

11. The Secretary of the plaintiffs has stated in his affidavit that the plaintiffs were "ever vigilant" and has set out the causes which prevented them from discovering the death of Khatija Bai and applying for setting aside the abatement within time as follows:‑

"(4) That the plaintiffs have been ever vigilant, and have diligently and vigorously prosecuted this suit throughout, to the best of their ability, sparing no efforts whatsoever at any time.

(5) That the defendants have been living in clusters of huts in Sher Shah village without any sign or indication whatsoever as to the exact whereabouts of any of the residents of the huts aforesaid.

(6) That the defendants abovenamed, and at their instigation, the residents of Shershah village, have all been in league against the plaintiffs throughout, and have always used their utmost endeavours to thwart and obstruct plaintiffs in every way.

(7) That the defendants have always done everything in their power to mislead the plaintiffs, their agents, servants and representatives in every way possible.

(8) That women living in Shershah village have always taken shelter behind the plea of Pardanashin, making it impossible for the plaintiffs to discover anything from or about them."

The defendants have met the above statements in their counter -affidavit, as follows :‑

"4. Paras. (4), (5), (6), (7) and (8) of the affidavit are denied."

This is not even a denial of the allegations in terms of rules 3 to 5 of Order VIII, C. P. C., but their real reply is to be found in paragraph G of the counter‑affidavit as follows:‑

"It is contended that the present plaintiff and for that purpose his counsel was fully aware of the death as well as of the names of legal representatives of Mst. Khatija. The plaintiff has not made out any sufficient cause for the condona tion of the delay. The plaintiff has slept over the matter although the factum of the death of Mst. Khatija was definitely known to the plaintiff as early as 30th December 1957."

12. The facts stated in these paragraphs of the Secretary's affidavit clearly constitute a cause sufficient in view of the principle stated above, to have prevented the plaintiffs from continuing the suit against the heirs, and from applying within time to get the abatement set aside excepting for the information conveyed to Mr. Samad Khan by the service on him of a notice in the previous suit of the death of Khadja Bai. Mr. Lari for the defendants has, therefore, not questioned the facts stated in these paragraphs or their sufficiency, but has elaborately argued that counsel's knowledge should be taken to be the actual or constructive knowledge of his clients whose negligence is, therefore, proved by their omission itself to apply within time for impleading her legal representatives and for getting the abatement set aside.

13. The Secretary has stated in his affidavit as well as in his rejoinder to the counter‑affidavit that the information was not passed on by Mr. Samad Khan to the plaintiffs. Mr. Samad Khan has admitted at the bar that the notice was served on him, and that he did not pass on the information to the plaintiffs. Thus the only question that remains to be decided is the effect of counsel's knowledge.

14. Mr. Samad Khan has explained that the circumstances, in which he made the omission, were peculiar. Firstly, the information was received by him in the former suit and not in this suit. It was valuable in that suit to the plaintiff Muhammad Ibrahim, and the relations of Khatija Bai, but not to the Sind Industrial Estates Ltd., therefore, he did not convey it to the plaintiffs and latter it escaped his attention. Secondly, the notice was served on him on the 30th of December 1957, when that suit was pending in this Court and this suit in the District Court. This physical gulf obscured the connection between that notice and this suit, if his duty can at all be said to have been to use the know ledge gained from one proceeding in another proceeding. Strictly speaking, he would have done well in the circumstances of this case to use that knowledge for the benefit of the present plaintiffs, but his omission may be considered to be lack of extra‑vigilance but not lack of duty.

15. Thirdly, the presence of Mst. Khatija Bai, as an individ ual defendant in this suit was so insignificant that she had not even submitted her written statement. Additionally, the proceedings were ex parte against her from the 8th of February 1954, making the realization of her presence as a defendant still more feeble. Fourthly, counsel had been for a number of years a member of the Calcutta High Court, where the rule has been as follows :‑

"(4) The Court, whenever it sees fit, may exempt the plaintiff from the necessity of substituting the legal representa tives of any such defendant who has failed to file a written statement or has failed to appear and contest the suit at the hearing ; and judgment may in such case be pronounced against the said defendant notwithstanding the death of such defendant and shall have the same force and effect as if it has been pronounced before death took place."

It is not a rule of this Court, but the equity on which it is' founded deserves the consideration of this Court for taking a liberal view of his omission as well as of the omission of the plaintiffs.

16. Fifthly, an equitable view can be said further to be possible for the benefit of the plaintiffs on the ground that there is no irrebutable presumption of law that the notice was in the knowledge of the plaintiffs. Order III, rule 5, C. P. C., provides that‑

"any process served on the pleader of any party . . . shall be presumed to be duly communicated and made known to the party whom the pleader represents",

but the expression "shall presume" Is defined in section 3 of the Evidence Act, for the purposes of that Act, to mean that the Court shall regard a fact which it is directed to so presume, as proved "until it is disproved". The same meaning should be assigned to it for Order III, rule 5, C. P. C. In this case equity and justice are on the side of the plaintiffs because their fault is proved to be not their own but has been merely ascribed to them on a legal presumption which is erroneous on facts.

17. These five explanations have well impressed me on the whole. It is unnecessary to examine as to how far the omission of a lawyer can excuse the fault of his client, because firstly, the defendants are at least partly to be blamed for the fault of the plaintiffs. The facts set out in paragraphs 4 to 8 of the affidavit of the Secretary constituted a cause that was sufficient to prevent the plaintiffs from discovering the death independently. Moreover, the defendants had either themselves forgotten the death or con trived to keep it away from the mind of everybody from December 1957, upto April 1960, when Mr. Muhammad Halim for the first time raised the objection in this suit that it had abated wholly. During this time, his clients, i.e. defendants Nos. 3 and 4 submit ted their written statement (9‑11‑59), evidence of the parties was recorded and the hearing was adjourned for final arguments. Secondly, the omission which has been made by Mr. Samad Khan is not of such a nature as, in the circumstances of this case, can be said to be an error of law or default in duty ; because it was neither an erroneous advice, nor failure in the former case to communicate information of any value. He could be more far sighted, more interested in the welfare of his clients and extra -vigilant; but his omission in not displaying that virtue would have made no difference if the plaintiffs' own care and attention had not been rendered futile by the cause which prevented them from discovering the death. It would be laying the blame at the wrong door to overlook that cause and emphasise the need of extra vigilance of counsel.

18. I should not omit to mention that the written statements of the heirs of Mst. Khatija Bai are on record in pursuance of the order of Wahiduddin Ahmad, J., dated the 27th of May 1960, subject to the decision whether it is a fit case for setting aside abatement". The plaint has been amended and issues' were framed on the written statements. No additional issue on the pleas of the legal representatives was claimed by their counsel, and therefore, only one issue was framed by counsel on the question of abatement, as follows :‑

"Whether the suit has abated against defendants. If so, what is the effect"

This shows that there is no difference on the merits of the case between the interests of these legal representatives and those defendants who were already on record. These legal representa tives have not even pleaded abatement, nor has their counsel participated in the arguments on this issue.

19. In conclusion I decide the issue in favour of the plaintiffs. I hold that there was abatement consequent upon the death of Mst. Khatija Bai, and set it aside irrespective, as explained above, of the effect of that abatement on the maintainability of the suit as a whole.

20. Mr. Samad Khan requested me during his address to decide the suit on merits in view of the order of Wahiduddin Ahmed, J., dated the 27th of May 1960. At that time the question of abatement arising from the death of Saheb Shah was not before the learned Judge. I declined to hear the parties on merits, because I felt that the defendants should have the opportunity, before decision on merits, if they chose to do so, to get the views expressed above tested by going in appeal. If they succeed, deci sion on merits will be necessary. Moreover, Mr. Samad Khan also requested me to decide the plaintiffs' application dated the 26th of May 1952 under Order I, rule 8, C. P. C., which was never placed before the Registrar (Original Side) for disposal by an omission of the office. Mr. Lari rightly objected to the request on the ground that Saheb Shah and Mst. Khatija Bai being dead they could not be ordered now to defend the suit on behalf of others. It is fair that the plaintiffs should get an opportunity to consider the situation.

K. M. A.

Order accordingly.

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