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Civil Revision No. 180 of 1958, decided on 11th December 1962.
, O. XXII, r. 4(3) Relief sought against defendants joint and indivisible‑Abatement of suit or appeal in toto‑Test whether interest of deceased joint and indivisible with other defendants : There should not be two contrary decrees if suit be allowed to abate against deceased defendant only.
Allahdad and others v. Nawab and others P L D 1960 Lah. 277 ref.
, Ss. 43 & 59‑Retrospective application of S. 43 barred by S. 59(2)---‑Appeal abating before promulgation of Ordinance ---Revision against order of abatement‑O. XXII, r. 4 (3), Civil Procedure Code, 1908 as amended by S. 43 of Ordinance (XLIV of 1962) not applicable.
, O. XXII, r. 4 (3) Suit or appeal abates automatically on expiry of prescribed period‑Order of Court not necessary.
, S. 59 (2)‑Word "done"‑Includes words "omitted to have done."
, S. 59 (1)‑Suits etc. "pending"‑Do not include suits etc., already "decided", though such suits could be made subject of further proceedings before superior courts.
Pir Bakhsh Khan and Sh. Abdul Majid for Petitioner.
Malik Abdul Latif for Respondent No. 2.
Nemo for rest of Respondents (ex parte).
Date of hearing : 3rd December 1962.
Gul Rehman and Mst. Gul Sahiba plaintiffs instituted the suit, out of which the present revision petition has arisen, against Bostan and seven others in the Court of the Civil Judge, Mansehra, on the 2nd of February 1954, for declaration, to the effect that plaintiff No. 1 was owner of 15/16th share and plaintiff No. 2 of 1/16th, out of 2/3rd of land, measuring 61 kanals 17 marlas, situated in the area of Mansehra, as specified in the plaint. The plaintiffs alleged in the plaint that defendants 2 to 8 were alienees from defendant No. 1, therefore, being necessary parties, they were impleaded as defendants.
2. Defendants 1, 2 and 8 resisted the suit on a number of grounds. The suit was dismissed by the trial Court on the 21st of February 1957, on the ground that it was barred by the principle of res judicata. Gul Rehman (Plaintiff No. 1) alone appeared in the Court of the District Judge, on the 25th of March 1957. Bostan (respondent 1) raised a preliminary objection in the appeal that Yaqub Shah (defendant 7) died during the pendency of the suit in the trial Court, and up to the date of hearing of the appeal the plaintiffs had not applied for bringing his legal representatives on the record, and therefore, the suit, as well as the appeal, had abated. The parties were at issue as to the correct date of the death of Yakub Shah, and the learned District Judge, after recording the evidence which the parties produced, found that Yakub Shah (defendant 7) died on the 17th of August 1954, when the suit was still pending in the trial Court. The learned District Judge, therefore, found that the suit, as well as the appeal, bad abated in toto. In coming to that finding, he was of the view that defendant No. 1 is the real person with whom the plaintiffs had the dispute, but defendants 2 to 8 were his alienees, and as such, their interests and that of defendant No. 1 were joint and indivisible, and therefore, the suit and the appeal had, under the law, abated in toto. On these findings the learned District Judge, Hazara, dismissed the appeal, by his order, dated the 28th of April 1958.
3. The plaintiff, Gul Rehman, has now come up in revision to this Court.
4. The learned counsel for the petitioner raised the following points in his arguments :‑
(1) That Yaqub Shah acquired one‑third share out of s Khasra Nos. 777, 778 and 779, and therefore, according to the allegations of the plaintiffs themselves, he was entitled to one third of the land, and hence, the suit had abated up to the extent of the interest of respondent No. 7 (Yakub Shah), and not in toto.
(2) That the plaintiff was not aware of the death of Yakub Shah till the time he made the application for bringing his legal representatives on the record in the appeal, and therefore, the period might have been condoned under section 5 of the Limitation Act by the learned District Judge, and
(3) That by virtue of the amendment of Order XXII, rule 4, sub‑rule (3), section 59, C. P. Code, by Ordinance XLIV of 1962, the suit, or the appeal, has not abated.
Point No. 1.‑The test, if the interest of the deceased defen dant‑respondent is joint and divisible, with the other respondents or not, is, if the suit is allowed to abate with respect to the deceased‑respondent alone, there would not be two contradictory decrees in the case. This point has been fully discussed in Allahdad and others v. Nawab and others (P L D 1960 Lah. 277) and this test was found to be the essential criterion for the determination of this point. Yakub Shah (defendant 7) is an alienee from Bostan (defendant 1), and his son, Roshan (defendant 4). If the plaintiffs succeeded in the suit, then the decree would be passed against all the defendants. If the property in the name of Yakub Shah is eliminated from consideration on account of his death and his legal representatives having not been brought on the record, then the suit would be considered to have been dismissed with respect to the property which was alienated in his favour. In such a case, the decree would be passed with respect to a part of the property if the plaintiff succeeded against the defendant. As a result, two contradictory decrees would come into existence. In such a case, the policy of the law is that the suit or the appeal should abate in toto.
Point No. 2.‑As remarked by the learned District Judge in his judgment, the parties are residents of places, not far away from each other. Yakub Shah died on the 17th of August 1954, when the suit was still pending in the trial Court. He was a necessary party as admitted by the plaintiffs themselves in para. 1 of the plaint. The suit could not proceed without the necessary parties having been duly impleaded, or in the event of the death of any party, its having been duly represented. The decree in the lower Court having been passed after the death of Yakub Shah without his legal representatives having been brought on the record, is a nullity in law. It cannot be conceived that the plaintiff should not have known that Yakub Shah had died during the pendency of the suit in the trial Court. In spite of it, in appeal, Gul Rehman plaintiff had also impleaded him as a respondent. In doing so, he had impleaded a dead man as a respondent. The appeal from the very beginning was, therefore, not competent in the present form. The plaintiff, therefore, could not reasonably be considered to be not knowing that Yakub Shah had died long ago. At least he was extremely negligent in not trying to learn why Yakub Shah, whose interests were vitally involved in this litigation, was not defending his interest in the lower, as well as in the appellate Court. This should have put him on guard, and if he had taken a little care, he should have learnt about his death. It cannot be said, there fore, that the District Judge has erroneously disallowed the Prayer of the appellant. for the extension of the period of limitation under section 5 of the Limitation Act. The learned District Judge was, therefore, perfectly right in rejecting the appli cation as barred by time.
Point No. 3.‑Counsel for the petitioner referred to section 59 ' of Ordinance XLIV of 1962. This section runs as thus :‑
"Section 59.‑Application of this Ordinance to pending proceedings and savings‑
(1) Except as provided in the following subsections, the provisions of the said Code as amended by this Ordinance shall, as far as practicable, apply to all suits, appeals, and other proceedings pending before a Court immediately before the promulgation of this Ordinance.
(2) Nothing in this Ordinance shall affect anything already done before the promulgation of this Ordinance or anything which ' is inseparably connected with, dependanton, or con sequential to anything so done.
(3) No decision in any suit or proceeding taken before the promulgation of this Ordinance which would not have barred a subsequent suit or proceeding under section 11 of the said Code as it stood before the promulgation of this Ordinance, shall have the effect of barring such suit or proceeding.
(4) Every appeal from an appellate decree pending before a Court immediately before the promulgation of this Ordinance shall be deemed to be an application for revision under section 115 of the said Code as amended by this Ordinance and shall be heard and as far as practicable determined accor dingly.
(5) An application for setting aside an ex parte decree made under rule 13 of Order IX of the said Code before the promulgation of this Ordinance shall not have the effect of barring an appeal from the ex parte decree.
(6) An appeal from an ex parte decree preferred before the promulgation of this Ordinance shall not have the effect of barring an application for setting aside the ex parte decree under rule 13 of Order IX of the said Code.
(7) Rules 58 to 63 (both inclusive) of Order XXI of the said Code as they stood before the promulgation of this Ordinance shall continue to apply to all claims and objections made under the said rule 58 before such promulgation.
(8) Rule 103 of Order XXI of the said Code, as it stood before the promulgation of this Ordinance, shall continue to apply to application made under rule 97 or under rule 100 of the said Order before such promulgation.
(9) Nothing in this Ordinance shall affect any amendment made in the First Schedule to the said Code, in exercise of the powers conferred by section 122 of the said Code, or otherwise, which is not inconsistent with the provisions of the said Code as amended by this Ordinance, but any amendment incon sistent with such provisions shall be deemed to have been repealed to the extent of such inconsistency."
He has also referred to section 43 of the Ordinance, which runs as follows :‑
"43. Amendment of Order XXII, First Schedule, Act V of 1908." In the First Schedule to the said Code in Order XXII in rule 4, in sub‑rule (3), for the words "the suit shall abate as against the deceased defendant", the following shall be substituted, namely :‑
The Court shall proceed with the suit and may pass a decree against the deceased defendant, and the decree so passed shall be binding only on such of the legal representatives of the deceased defendant as were not minors or persons of unsound mind throughout the aforesaid time:
Provided that in the event of a legal representative being a minor or of unsound mind for a part of the aforesaid time the decree passed against the deceased defendant shall be binding on such legal representative but the time limited by law for making an application under the sub‑rule (1) shall be deemed to have been extended by the number of days during which he remained a minor or was of unsound mind within the aforesaid time :
Provided further that a legal representative may apply for an order to set aside
(a) the decree, if any, passed within the time limited or extended as aforesaid, or
(b) the proceedings, or such part thereof as adversely affect his interests and which have been taken after the death of the defendant, and the Court shall, if such application was made within the time limited or extended as aforesaid and may, if it was made thereafter, on being satisfied that the legal representative was prevented by any sufficient cause from making such application within such time, make an order setting aside the decree or proceedings or a part thereof, as the case may be."
The amendment affected by this section of the Ordinance to Order XXII, rule 4, sub‑rule (3) of the Civil Procedure Code was that for the words "the suit shall abate as against the deceased‑defendant", the latter part of the section has been substituted as sub‑rule (3). Counsel for the petitioner, by referring to the amendment to Order XXII rule 4, sub‑rule (3), read with section 59 C. P. Code, had urged that the penalty of abatement for not bringing the legal representatives of the deceased‑defendant on the record, provided in sub‑rule (3) of rule 4 of Order XXII of the old Civil Procedure Code would not apply to the present case.
7. In my view, subsection (2) of section 59 of the Ordinance is applicable in this case, and this subsection had saved the retrospective application of the Ordinance to the case in hand, c and therefore the suit and the appeal had abated under Order XXII rule 4 (3) of the Civil Procedure Code. Yakub Shah (defendant 7) was held to have died on the 17th of August 1954. The suit, as well as the appeal, had abated after the expiry of ninety days of his death, when no application was made within the statutory period of ninety days to bring his legal representatives on the file. The suit and the appeal had, therefore, abated in the month of November 1954. It is not necessary that there should have been an order of the Court that the appeal or the suit had abated. After the expiration of the period prescribed by law for bringing the legal representatives of the deceased‑defendant on the record, the suit and the appeal had automatically abated. In subsection (2) of section 59 of the Ordinance it has been expressly provided that "nothing in this Ordinance shall affect anything already done before the pro mulgation of this Ordinance, or anything which is inseparably connected with, dependant on, or consequential to anything so done." The appeal was dismissed by the learned District Judge on the 28th of April 1958, on the ground that it had abated, and this revision petition is inseparably connected with, dependant on, or consequential to the decision in the appeal. The amend ment, therefore, to Order XXII, rule 4, C. P. C. as made by section 43 of the Ordinance, would not apply to this case.
8. Counsel further urged that subsection (3) of section 59 would apply, and the question, whether the suit or appeal had abated in toto, or partially, would become final after the decision of these points had been given by this Court, and until the decision of the revision petition, this point cannot operate as res judicata, and therefore, the amendment to Order XXII, rule 4, sub‑rule (3) is applicable retrospectively. The interpretation by the learned counsel of subsection (3) of section 59 of the Ordinance does not appear to be correct., Subsection (3) provides that "no decision in any suit or proceeding taken before the promulgation of this Ordinance, which would not have barred a subsequent suit or proceeding under section 11 of the said Code as it stood before the promulgation of this Ordinance shall have the effect of barring such suit or proceeding. "This subsection intended to make applicable the provisions of section 11 of the Civil Procedure Code as stood before the amending Ordinance had been promulgated, and clarifies that the provisions of section 11 C. P. Code would apply in the same manner as had been applied prior to the promulgation of this Ordinance. Sub section (3), therefore, has got no bearing on the question which is under consideration, as till the matter has been decided by the High Court, the adjudication of the District Judge on this point would not be final, but the High Court, while deciding this point, is not competent to ignore subsection (2) of section 59 of the Ordinance. As the District Judge had passed the order in appeal to the effect that the appeal had abated in toto, and this revision petition is inseparably connected with, dependant on, or conse quential to, the order of the District Judge, therefore, the amend ment to Order 22, rule 4, sub‑rule (3) would not be applicable to this case. The order of the learned District Judge had only confirmed what in reality had the automatic effect of the plaintiffs having not applied for bringing the legal representatives of the deceased‑defendant on the record in 1954, when the amending Ordinance was not in existence. The matter would have been different if the said defendant had died after the enforcement of the amending Ordinance. If during the pendency of the present revision petition one of the respondents had died, then the provi sions of Order XXII, rule 4, sub‑rule (3), as amended, would be applicable. The word "done" used in subsection (2) of section 59 F also includes the words "omitted to have done". If the plaintiff had omitted to apply for bringing the legal representatives of defendant No. 7, within time, and the suit and the appeal had abated in 1954, then the amending Ordinance, being law of procedure, would not be retrospectively applicable unless specifi cally provided therein that it would so apply, but subsection (2) of section 59 clearly saves the application of amendment of Order XXII rule 4, rub‑rule (3) referred to above, in the case of the nature, which is in hand. The word "done", occurring in subsection (2) of section 59 of the Ordinance, if it has been used with reference to either the parties or to a Court, even then the District Judge, having passed the order, before the promul gation of the Ordinance, on an application of the plaintiff, not made within ninety days, the exception provided in subsection (2) of section 59 of the Ordinance, would apply with great rigour is this case. Besides subsection (2) of section 59, the words used "as far as practicable" in subsection (1) of section 59 of the Ordinance are also very significant. In the instant case, it is not practicable to apply the amendment to. Order XXII, rule 4, sub rule (3) contained in section 43 of the Ordinance when the abatement in toto of the suit and the appeal had taken place, automatically, before the promulgation of the amending Ordinance.
9. There is also another aspect of this case. The words occurring in section 59 (1) of the Ordinance "as far as practicable apply to all suits, appeals and other proceedings pending before a Court immediately before the promulgation of this Ordinance" are clear enough to show that the general applicability of this section has been limited only to suits, appeals and revisions etc. which were pending immediately before the promulgation of the G Ordinance. It does not, therefore, apply to the suits, appeals and revisions etc. decided before the promulgation of the Ordinance. In the instant case, as already mentioned, the suit and the appeal had already abated. If the legislature had the intention that the question of abatement of a suit or appeal would become final only when it was upheld by the superior Courts, then it should have specifically mentioned it in this Ordinance. On the contrary, its intention in making applicable the provisions of the Ordinance specifically to the pending cases clearly indicates that the amend ment to Order XXII, rule 4 (3) would not apply to cases already decided.
10. It is thus clear that from whatever angle the legal position on the light of Ordinance XLIV of 1962 is considered, there is no escape from the conclusion that the Ordinance is not applicable to this case.
11. The result is that the revision petition fails and is dismissed with costs.
R. B. A./A. H. Petition dismissed.
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