RABIU DAD KHAN, C J AND RAJA MOHAMMAD KHUKSBID HASSAN MN
Mtt. n*OXM JAN ami Otfcan
Civil Appeal No. If of 197S decided on 9-6-1980.
Civil Procedure Code (V*f IfOty-O. XXII.
R. 9—Abatement of suit-Application for setting aside abatement—Governed by Art. 171, Limitation Act .(1908)—Period of ninety days allowed to apply for bringing on record legal re¬presentatives of deceased party and terminus quo is date of death of party— Application not moved in time—Suit abates automatically bat abatement order can be reversed if default is doe to sufficient cause — Limitation for application to set aside abatement is sixty days from date of abatement and such application may be coached in a way to bring legal representatives on record — Discretion should be exercised in setting aside abatement If sufficient grounds are made out to explain Itches— Order in refusing to bring on record legal representatives of deceased being in fact an order refusing to set aside abatement is appealable under R. 1 (Ar), O. XXII, Civil P. C. (1908)— Held: in instant case discretion was rightly exercised by first appellate Court in accepting appeal and remanding case back to trial Court. (Paras. 5, 7, 9)
B. A. Farooql for Appellants. T. H. Tariq for Respondents Nos. 1 and 2.
Raja Mohammad Khwghid Khan, /.—During the pendency of a civil \filed by the respondents, in the Court of Additional Sub- Judge, Muzaffarabad on 24-1-1972, an application for bringing on record the legal representatives of Amanullah deceased (defendant), was moved by them. This application was opposed by the appellants (defendants) on the grounds that it was filed beyond the allowed period of ninety days ; and that Bashir Hussain and Sabir Hussain entered in the application were not the sons of the deceased. The appellants’ (defendants) case is that Amanullah deceased (defendant) had died on 24th -September 1971 and obviously the application being filed after the permissible period of ninety days, deserves no consideration. It may be stated here that the application, if it could be treated as one under Order XXII, rule 9 C.P.C. for setting aside the abatement, is well within time.
2. The learned Sub Judge, on 24-5-1975 rejected this application as being time barred and held that the suit bad abated to the extent of Amanullah deceas¬ed (defendant). On appeal before the learned District Judge by tbe respondents (plaintiffs), the learned District Judge vide order dated 27-7-1976 treated tbe application as one for setting aside the abatement under Order XXII rule 9 C.P.C. and discharging the finding of the learned Additional Sub Judge, directecl to bring tbe legal representatives of the deceased on record and then proceed with the trial of the case. Appellants (defendants) feeling aggrieved by this order, went in second appeal before the High Court but without any success. Their appeal was disallowed by the High Court on 16-1 1-1976.
3. A petition for leave to appeal by the appellants was moved before this Court to assail the said order of the High Court. Leave was granted to consi¬der : —
(a) Whether the petition moved by the plaintiffs for impleading the legal representatives could not be treated as one under Rule 9 Order 22 C.P.C. for setting aside the abatement order.
(b) In the circumstances of the present case, what legal remedy was avail¬able to the plaintiffs (appeal or revision) and if only revi¬sion was competent, what is the legal effect on the so called judgment of the District judge. ‘
(e) Whether the Court in exercise of its re visional jurisdiction, despite unauthorised proceeding before the first appellate Court, was competent to piss the impugned order.
4. To assail -the judgment of the High Court, it has been strenuously argued on behalf of the appellant : —
(1) That the application , moved by the plaintiffs (respondents) before the trial Judge for impleading the legal representatives of the deceased has. illegally, been treated by the learned District Judge as well as by the High Court as one for setting aside the abatement, under Order 22 Rule 9 C.P.C. ; and
(2) That the appeal before the learned District Judge and even before the High Court was incompetent as the abatement order, not being a decree is not appealable under the Civil Procedure Code.
5. We have given our considered thought to the arguments advanced at the bar and do not feel inclined to agree with the learned counsel for the appellant. Our reasons are :—
(a) The application, as rightly held by the learned District Judge, for bring¬ing the legal representatives of Amanullah who died before 2-10-1971, was filed beyond the period of ninety “Bays allowed to bring the legal representatives of deceased on record. Obviously, this application could only be treated as an application for setting aside the abatement order under Order 22 Rule 9 of the Code of Civil Procedure.
(b) The limitation for making an application for setting aside the abatement) under Order 22 Rule 9 C.P.C. is governed by Article 171 of the Limitation Act. It may be stand here that the period of ninety days is allowed only for making an application to bring on record the legal representatives of a deceased (defendant) and the terminus quo is the date of the death of the deceased. If the I application is not moved within time the suit of the appellant or the plaintiff. as the case may be, abates automatically. Bur even after that the plaintiff or the appellant, is given another chance to obtain reversal of the abatement order and if the Court is satisfied that sufficient cause existed which prevented the defaulter to apply in time for bringing on record the legal representatives of the deceased, the Court would set aside the abatement on such terms as to costs or otherwise at it thinks fit. Article 171 of the Limitation Act for this purpose allows sixty days from the date of the abatement and even an application, after the abatement, though coached in a way to show that it is an application to bring the! legal representatives on record, can be, rather should be treated as an application for getting aside the abatement. Dealing with the point in Firm Gabrulan v. Court of Wards, Bilaspur (AIR 1933 Nagpur 85) it is observed by Grille AJC :—
“Where a suit has abated and an application is made not as an application to set aside the abatement But for substitution of a legal representative and the application if treated as one to set aside the abatement would have been within time the application for substitution should be considered as an application under O. 22, R. 9 (2). Civil P. C. for setting aside the abatement and the trial Court when acting within its jurisdiction uses its discretion in accepting the reason given for the delay High Court cannot interfere in revision”.
Again in Bhartu v. Udmi and others (AIR 1934 Lab. 315) treating ao applica¬tion for bringing the legal representatives of deceased on record as one for set¬ting aside the abatement, it was observed by Jai Lai. Judge :—
“An application to bring on the record the legal representatives of a deceas¬ed party after the expiry of the time fixed for this purpose mtut be deemed to be an application to set aside an abatement and an order refusing to set aside an abatement is appealable under Order 43 Rule I (k)”.
(underlining is ours) (Herein ttalics) In this very case on the subject of appeal it was further observed ‘:—
“In this view the learned District Judge is wrong, because O 43, R, 1 (k). expressly gives a right of appeal to a partv against an order under R. 9, O. 22 refusing to set aside the abatement or dismissal of a suit. It has often been held by this Court that an application to bring on. the record the legal repre¬sentatives of a deceased party after the expiry of the time fixed for this purpose must be deemed to be an application to set aside the abatement.
(underlining is ours) (Herein italics)
On the side of Pakistan Jurisdiction to Jangir Khan v. Abdul Latif Khan (1973 SCMR 286) ; it was observed at page 287.
“Nevertheless, the High Court in revision did not think it necessary to in¬terfere with the order of the Additional District Judge on the ground that the application could be treated an application for setting aside the abate¬ment and substituting the legal heirs of the deceased Abdul Manan. This application for setting aside the abatement was well within time and therefore the Court could exercise discretion to set aside the abatement and bring the legal heirs on the record if it was satisfied thai the failure to implead the legal representatives within time had been due to a genuine misunderstanding as to the legal position
(Underlining is ours) (Herein italics)
In that case, it would appear, that & learned single Judge of the Peshawar High Court declined to interfere with the discretion exercised by the learned i^Ir’Ct -‘ud8e in treating an application for bringing legal representatives of Abdul Manan, defendant, as one for setting aside the abatement and substitut¬ing the heirs of the deceased, Abdul Manan. The Supreme Court io repelling’ the contention that an application for bringing legal representatives on record cannot be treated as an application for setting aside the abatement maintained the finding of the Peshawar High Court.
6 The present case is on all-fours with the facts and circumstances of the aforementioned case. In that case the application for bringing the legal repre¬sentatives of Abdul Manan deceased was. filed after the period of ninety days which was treated, as an application for setting aside the abatement under Order 22 Rule 9 C.P.C. as is done in the instant case.
7. In view of the above, it admits of no doubt that the order of the learned Additional Sub Judge in refusing to bring on record the legal representatives of [the deceased was in fact an order refusing to set aside the abatement un-ler £ule 9 Order 22 C.P.C. which is appealable under Order 43 Rule (1) (k) C P.C- The learned District Judge who had jurisdiction to treat this application as the one for setting aside the abatement, has rightly/exercised the discretion in doing so.
8. The application for bringing the legal representatives on record moved after the period of limitation when the suit had already abated should have been treated as an application for setting aside the abatement and if sufficient ground are made out to explain the laches, the discretion should be exercised in setting! aside the same. On this point, in Hassomat Hardasmal v. Pirbux and others* (AIR 1933 Sind 36) it is observed :—
“The Court bad wide powers to set aside such an abatement, and these powers should be used somewhat liberally unless there was clear proof of laches”.
9. This now brings us to see whether sufficient grounds existed in the ‘Bstant case for setting aside the abatement. The respondents, it has come in evidence, had for the last 13/14 years abandoned his native village and took residence at Abbottabad and Mst. Fcroze Jan respondent too after her marriage left for Pakistan an4 lives outside Azad Kashmir. The respondents’ conten¬tion, therefore, that they remained unaware of the death of Amanullab which came to their knowledge only when application was moved in the trial Court for bringing the legal representatives on record, is not w! bout fcrce. Their staie-ment remained unshaken even in cross-examication. The learned District Judge therefore, in our view, has exercised the discretion rightly in treating the appli¬cation as one for setting aside the abatement, and remanding the case back tc the trial Court to proceed in accordance with law and the High Court has ah rightly declined to interfere in the discretion exercised by the learned District Judge.
For the view we have taken in the matter finding no reason to interfere with the judgment of the High Court, we would dismiss this appeal with costs.