S. ANWARUL HAQ, CJ KARAM ELAHBB CHAUHAN, M. A. ZHLLAH, NASIM HASAN SHAH AND SHAFIUR REHMAN, JJ

KHUSHI MUHAMMAD
Versus
Mst. AZIZ BIBI

Civil Misc. Petition No. 333/72 in C. A. No. 284/70 and Civil Misc. Petition No. 106/72 and Civil Review Petition No. 9/72 in Civil Appeal No. 37/68, decided on 13-2-1980.

(i) Supreme Court Rules (1956)—O XVI, R.4—Rules govern procedure and practice—R. 4 makes inapplicability of Civil Procedure Code (1908) except where applicability expressly made by these Rules—Provisions of Order 22, Civil P C. (1908) not applicable to proceedings before Supreme Court—Art, ;191, Constitution (1973) (Para. 8)

(ii) Supreme Court Rules (1956)—O. XVI, R. 3 and R. 9—Duties of appellant narrated. (Para. 9)
(iii) Supreme Court—Appeal before—Failure to bring legal representatives of respondent on record within prescribed period—Appeal dismissed. (Para. 10)
(if) Civil Procedure Code (V of 1908)—O. XXII, R. 9 and Rr. 3, 4(3),6—Abate-men of suit, setting aside of—Held: proceedings to which provisions applied were bound to suffer from automatic abatement without intervention of Court and Court intervened to set aside abatement and not to order abatement. (Para. 12)
(?) Supreme Court Rules (1956)—Order XVI, R. 9—Abatement of Appeal- Doors for intervention of Court kept wide open by not providing automatic abatement in R. 9—R. 15 (4), Order XLV, Civil P. C. (1908). (Para. 13)
(ti) Civil Procedure Code (V of 1908)—O. XXI1—As amended by Law Reforms Ordinance (XII of 1972)—Effect on provisions qua abatement of suit stated. (Para. 16)
(vii) Abatement of Appeal—Appeal before Supreme Court—Substitution of legal representatives of deceased party—Subject governed by Supreme Court Rules (1956) and not by Civil P. C. (1908)—Automatic abatement not pro¬ vided—Court has to exercise judicial discretion in exercising abatement or otherwise—Enforcement of R. 9, O. XVI, Supreme Court Rules (1956) io bar- money with O. XXII, Civil P.C. (1908)—No legal infirmity in judgments so at to render them null and void hence cannot be recalled as of right—Grievance arising out of defect in record—Unawareness of appellants about death of respondent satisfactorily explained—Death before material date of hearing of appeal—Parties not at fault—Application for review of judgment allowed— Petitioner having notice of being proceeded ex parte—Ground that opposite party (appellant) died before arguments were heard in appeal hence judgment vitiated—Petitioners’ application for recall of judgment not allowed in the circumstances. (Paras. 17, 20, 21)
Qcai Shaft Mohammad with Sh. Masud Akhtar AOR for Petitioners (ia CMP. 333/72).
Mushtaq Alifoi Respondents (in CMP. 333/72).
Ghias Muhammad St. Ad. and Jariullah with Sh. Abdul Karim AOR for Petitioners (in CMP. 106/72 and CRP. 9/72).
M. Aflwar Buttar with As lam Chhatha AOR for Respondents in both petitions.
Date of hearing: 27-11-1979,
ORDER
S. Rehman, J.—This order disposes of three applications, all seeking recall of judgments given by this Court in two separate civil appeals. The common question of law raised in these petitions is whether after the death of a party; appellant in one civil appeal, and one of the respondents in the other, the judgments of this Court delivered without taking note of and giving effect to their deaths, because nullities or suffered from such legal .infirmity as to neces¬sitate their rjC$$F:8s a matter of right on petitions by parties affected by them.
2. One Afyf. Iqbal Begum was the owner of agricultural land in Chak 28/J. B. Faisatabad, She got two mutations of sale entered, one on 14-6-1946 Tor sale of 213 Kanals 18 Marias in favour of Karam Singh, the other on 13-1M946, for sale of 109 Kanals 2 Marias in favour of Sadhu Singh. The Deputy Commissioner refund her the permission to mke permanent alienation of this land in exercise of powers possessed by him under section 3, subsection (2) of the Punjab Alienation of Lands Act. The mutations were not attested. Soon thereafter Partition took place. The land so dealt with by her was treated as evacuee property and allotted to displaced “persons. On 1-9-1959 Msf. Iqbal Begum filed an application under section 22 of the Pakistan Admi¬ nistration of Evacuee Property Ordinance, 1957, seeking a declaration of her rights and avoidance of the sales. She impleaded the two evacuees and the Rehabilitation Authority as respondents. During these proceedings before the Deputy Custodian Hakim Ali son of Boora along with seven others were added as respondents on their application on the ground of their being allottees of the land concerned and informers. All these newly added respondents gave no better particulars of their identity except their parentage, claiming represen¬ tation through one Muhammad Ismail resident of Chak No. 159/R. B Faisala- bad. Mst. Iqbal Begum failed before the Deputy Custodian, the Additional Custodian and the Custodian. She died and was succeeded by her two daugh¬ ters Mn, Hamida Begum and Mat. Zubaida Begum who took up the cause by instituting a Constitutional petition challenging the decision of the Custodian. This Constitutional petition was dismissed in limine on 1-7-1964 by the Lahore High Court. Leave to appeal was granted by this Court. Service of notices on Hakim Ali s/o Boora was attempted through the aforetaid Ismail but with no success. Notices were also sent to Hakim Ali showing him resident of Chak No. 159/R. B. Faisalabad. Notices then appeared in the newspaper and on bis failure to appear ex parte proceedings were ordered against him on 26-11-1968. The appeal succeeded OB ,27-3-1972 and relief in following terms was granted to the appellants :
“We have therefore come to the conclusion that the sales in favour of the evacuees were void and the sales will take effect as usufructuary mortgages. It will also be open to the Custodisan to obtain sanction of the sales from the Deputy Commissioner so as to validate them”.
3. On the 25th of April 1972, twenty-four petitioners, of whom the first n>e are the luccetsori-in-interest of the same Hakim Ali s/o Boora, applied for review of the judgment in appeal. Their case was that Hakim Ali had died on 17-6-71, and the judgment in appeal being against a dead person was of no legal effect. They also claimed that Hakim Ali was vitally interested in the result of the appeal and that service was attempted deliberately on a wrong and incomplete address. Their other nineteea associates claimed to be either allottees of the portions of disputed land or transferees from such allottees and pleaded that they were necessary parties and the appeal could not have been finally decided without impleading and hearing them. Their prayer was that the judgment in “Civil Appeal No. 37/68 may kindly be reviewed and set aside and the judgment and order of the former High Court of West. Pakistan Lahore dated 1-7-1964 in W.P. No. 1067/67 may be restored.” This application came up for hearing on 8th May 1972 when the Court ordered that : “the petitioners are directed to file an application for setting aside ex parte decree and judgment on the ground that respondent No. 9 (sic) died and his legal representatives were not brought on record. The review appli¬cation to come up for bearing along with this application”.
, 4. In consequence on the llth May 1972 the first five petitioners who were the successors-in-interest of Hakim Ali deceased applied for setting aside ex part« order in Civil Appeal No. 37/6S afliflH H*fc’m- This application (C.M. 106/72) it expressed t« be oader Order Tu^ f*te 13 C.P.C. read witi* s*ert»t 131 G.P.C,
5. The review petition alone came up for hearing on 17-11-1972 when it vas admitted. The review application and the Civil Misc. Application (No. 106/72) came up before the Court on 22-3-1973 when on the contentions of he petitioners that “the appeal automatically abated on the expiry of 90 days ‘>om 17tJb June 1971” and that “judgment against a dead person is nullity in :he eye of law” the Court proceeded to pass the following operative order :—
“The contention raised by the parties are not free from difficulty. These are of general public importance and appear to have been raised for the first time in this Court. It is a fit case for reference to the full Court. We would, therefore, direct that this matter may be placed before the Full Court for authoritative decision”.
6. As regards the third application (C.M. 333 of 1972) it appears that Mst. Aziz Bibi, a limited estate bolder in India, got allotment of evacuee agri¬ cultural land in Chak No. 158/G.B. Tehsil TobaTek Singh District Faisalabad, in lieu of her verified claim. Khushi Muhammad claimed interest in the estate as Ghulam Rasool the deceased husband of Mst. Aziz Bibi was his brother. The Assistant Collector granted him the relief by attesting the mutation accor¬ dingly in July 1964 It was reversed in appeal and Khushi Muhammad did not succeed before the revenue authorities upto the Board of .Revenue and even
thereafter in the Constitutional petitions filed in the High Court and appeal in he Supreme Court The second round of litigation was started by him by a civil suit which failed in the trial Court. The first appeal before the District Judge and the second appeal in the High Court met with the same fate. Khushi Muhammad sought leave to appeal which was allowed on 30-7-1971. There as an order passed on 12-11-1971 to proceed ex parte against Mst. Aziz Bibi. The final hearing took place on 21-6-1972 and this appeal was allowed ex parte on the strengih of decision in Additional Settlement Commissioner (Land) Sargodha v. Muhammad Shaft and others (P.L.D. 1971 SC 791). Thereafter a civil misc. application was filed on 31st of October 1972 by Mst. Aziz Bibi. It is expressed to be under Order XLIX rule 6 of the Supreme Court Rules, She is seeking recall of the judgment given by this Court on 12-6-1972 in appeal
°° tne ground that during the pendency of the appeal the appellant Khushi Muhammad had died on 30-7-1971 and with his death there was left no appeal PKDd!«n8 at thc timc the Court passed its order of 12th June. It is mentioned that “no counsel could represent a dead man, therefore, the appeal had already abated by them”. The petition was opposed. In view of the earlier two petitions which had been referred to Full Court the Court observed that “in the circumstances the present civil misc. matter is also referred to the Full Court and should be put up for hearing along with the above mentioned
matters”. She was also given liberty subject to all just exceptions to file if so advised a proper review petition also which she has not filed.
?• What the petitioners centcnd in all these petitions is that in view of Order XVI, rule 9 of the Supreme Court Rules the provisions of which are mandatory the appeals abated on the death of the respondent in one and of the appellant in the other before the hearing in those appeals took place. This was vhe consequence of their death irrespective of the fact whether their death was reported to the Court or not and consequential steps were taken or not. In opposing the petitions the main ground taken is that unlike Order XXII Civil Procedure Code and the rules contained therein before their amendment b’v thc Law Reforms Ordjnince 1972, there was no express provistori^mljide fljat iri’case of nop-compijan^ *ith’ tfifccprovisions of Order XVI rule 9 of the Supreme Court Rules, abatement shaft’ berfhe result. The power of the Court itself to order aPatetnent in a particular case is not specifically denied. The other ground taken up is that on the strength of Order XLV rule 15 (4) CPC, notwithstanding such defects as regards service on the parties or their death and substitution the judgment and decree of the Supreme Court, unlike any other Court or Tribunal retains its prime legality, vigour and enforcibility and cannot be questioned on that score by any authority whatsoever. This provision is, it is conceded; subject to any directions or order that the Supreme Court itself may make with respect to such judgments and decrees. The learned counsel for the parties have referred us to historical background wherein the sovereign’s order, which character the Supreme Court’s decisions partake the Supreme Court being at the apex of the judicial system in the country, could not suffer from any infirmity on account of such a defect existing or creeping in the record
8. Abatement, as canvassed in the context of these proceedings, meaus termination of proceedings in an action for want of proper parties. According to the petitioners, it follows as a matter of course on failure of the concerned party, to bring on record within the prescribed time, the legal representatives of the deceased party. To understand and aporeciate this contention, it is necessary to examine the practice and procedure of this Court. The Supreme Court is empowered by Article 191 of the Constitution to “make rules regarding the practice and procedure of the Court”. Such rules have to be subject to the Constitution and the law. The Supreme Court Rules were framed in 1956 andi overn its procedure and practice. Rule 4 makes provisions of Civil Proccdure| Code inapplicable except where “exprcsvly made applicable by these rules”.k Provisions contained in Order XXII of the Civil Procedure Code have not been) made applicable to the proceedings in this Court. The provisions of the Civil Procedure Code expressly made applicable and relevant to the subject under consideration are the manner of service of summons and notices, orders or other documents (Order XLVII rule 1 of Supreme Court Rules), Commissions (Order XLVII rule 1 ibid) and grounds for review of judgments or orders (Order XXVI rule 1 ibid). In this context must also be noted the savings made in Order XL1X of the Supreme Court Rules. Its rule 1 provides as follows :
“The. Court or any Judge thereof may, for sufficient cause shown, excuse the parties from compliance with any of the requirements of these rules, and may give such directions in matters of practice and procedure as it shall consider just and expedient.”
Rule 6 thereof provides as follows :—
“Nothing in these Rules shall be deemed to limit or otherwise affect the inherent powers of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court”.
9. The duties of an appellant are indicated in Order XVI of the Supreme Court Rules, diligence in taking various steps within time prescribed by Rules (Rule 3), and to ensure that the record of the Supreme Court is free of defect “by reason of the death or change or change of status of a person who was a party to the decree or other decision of the lower Court”. Rule 9 which is more specific on the point provides as follows :-
“An application to bring on record the legal representatives of any appellant or respondent who has died or suffered a change of status shall be made within ninety days of such occurrence.
Provided that the Court may for sufficient cause extend the time”.
10. The learned conusel for the petitioners have relied on this rule and tw decisions of this Court concerning it. In the case of Elahi Dux v. Budha and provides* applied, were bound to_aaffer fr««n automatie| abatement withoat the interveatioa of the Coi aide abatement and net to order abatement.
13. By expressly soaking the provisions of the Civil Procedure Code inapplicable to proceedings in appeal in Supreme Court and by not providing for automatic abatement in rule 9 Order XVI of the Supreme Court Rules the doorl for intervention of the Court and the exercise of judicial discretion was kept wide! open, ft was so for good reasons. Historically, the highest Court in the iand.f partaking of sovereign’s authority to dispense justice at the apex, always, eajoyed such transcendence over constraints of procedure and technicalities. Section 23 of ao English Statute passed in IS83 (3 and S William S. C. 41) concerning the jurisdiction of the Privy Council provided as follows :-
“And be it enacted that ie any case where any order shall have been made on any such appeal &s last aforesaid, the same shall have full force and effect notwithstanding the death of any of the parties interested therein; but that in ail cases where any such appeal may have been withdrawn or discontinued or any compromise made in respect of the matter in dispute, before the hearing thereof then the determination of His Majesty in Council in respect of such appeal shall have no effect”.
14. Order XLV rale 15 sub-rule (4) of the C.P.C. reflected a similar immunity, legality aad enforcebility of decisions of the highest Court of the land. It was io the following terms :
“Unless His Majesty in Council is pleased otherwise to direct, no order of His Majesty in Council shall be inoperative on the ground that no notice has been served on or given to the legal representatives of any deceased opposite party or deceased respondent in a case where such opposite party or respondent did not appear either at the hearing in the Court whose decree was complained of or at any proceedings subsequent to the decree of that Court, but such order shall have the same force and effect as if it had been made before the death took place”.
Over the years, the expression “His Majesty in Council” in subrele (4) rule 15, Order XLV C.P.C. has been substituted by “Supreme Court”.
15. It would be somewhat anomalous and a contradiction to claim, or to infer, that abatement having taken place the judgment is a nulity and that, notwithstanding such nullity, the judgment shall be fully operative and enforce¬ able by Courts charged with the duty of enforcing it. f
16. The provisions of the Civil Procedure Code, after the amendments! made by the Law Reforms Ordinance, 1927, have materially altered the results,! events remaining the same. Thus where within the time allowed application isf not made to bring on record the legal representatives of the deceased plaintiff “the Court may proceed with the suit and any order made or judgment pro¬ nounced in such suit shall notwithstanding the death of such plaintiff, have the same force and effect as if it had beta made or pronounced before the death took place” (Rule 3(2) of Order XXII C.P.C.). Where defendant diet it is pro¬ vided (subruie (4) of rule 4 ibid) “It shall not be necessary to substitute the legal representatives 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 notwith¬ standing his death, and such judgment shall haw the same force and effect as if it had been pronounced before his death took place”.
•17. The upshot of the examination of the provisions of Saw having a bearing on the rubject is that the Supreme Court Rules govern, to the exclusion of the Civil Procedure Code, the question of substitution of legal representa¬tives of a deceased party. The Supreme Court Rules do not provide for automatice abatement. Therefore, in every such case the Court hat to exercise its judicial discretion in directing abatement or otherwise. In exercising such discretion the Court will certainly be not oblivious of the procedure generally applicable to such proceedings before they reach the Supreme Court, its own level of adjudication and the finality attaching to its judgment. Such a discre¬tion permits a more rigorous enforcement of rule 9 Order XVI of the Supreme Court Rules :o keep it in harmony with the provisions as earlier existing in Order XXII CPC and more HbaraHy now with the same object in view.
1
18. Applying the above principles, we find that there is no inherent legal nfirmity in the judgments in the two appeals so as to render them null and [void and no party can, as a matter of right, seek their recall. Nevertheless, one thing is plain that a defect in the records has crept in and there is a grievance of the petitioners arising out of such a defect in the record which has to be attended to. For this reason apart from the purely legal question dealt with certain factual matters deserve attention.
19. So far as the heir* of Hakim Aii are concerned, their allegation that service on Hakim A!i was purposely attempted on a wrong or incomplete address is misconceived. Hakim Aii had not himself disclosed his address, and bad at! through remained a party through Muhammad Ismail resident of Chak 159/R. B Faisalabad. The appellants adopted that very address for impleading him and for service on him. Publication of the notices had taken place and be was justifiably proceeded ex pane. His legal representatives can not on these facts successfully claim the setting aside of the order directing e£ parte
{proceedings against him. The unawareness of the appellants about the very Jfact of the death of such a respondent sn the peculiar circumstances of the case (and she nature of the controversy had been satisfactorily explained.’
20. The plea of the respondents, who were the appellants, that Hakim All was not at ail a proper or necessary party and their failure to substitute his legal representatives in appeal does not render the record of this Court defective or imperfect is untenable. On their own showing, and the relief ranted to them in appeal bears it. out, on the refusal of the Deputy Commissioner to permit the sale, the evacuees had a right to enjoy the possession of the land as usufructuary mortgagees. This right could as well and did vest in the Cus¬ todian and be allotted and the aHoftee, in that case would be a necessary party in any claim that the land bad no element of evacuee interest. Not only he was made a party in appeal, the prayer now made by the successors-in-interest of Hakim A!i has some merit. Hakim AH died before the material date of hearing of the appeal by this Court. There was a duty cast on the appellant under rule 9 Order XVI of the Supreme Court Rules to bring them on record wiihin the prescribed time. Their failure to do so can be explained satis¬ factorily in the circumstances of the case. These petitioners bad, therefore, a right in law to be notified of the hearing, to enable them not only to ensure sbat the record has been perfected but also to resist the claim of the appellants. A decision has been givec against- them without following that procedure. At
tnc relevant time when such a course was adopted, the procedure generally applicable in Courts wherefrom these proceedings had reached this Court required in more peremptory terms the appellant to implead such successors-in- |isterest, failure proving fatal to the proceedings. This Court has not as a rule, upheld decisions given without affording reasonable opportunity of hearing to fparties who are not at fault or contributory in any manner, to such a failure. The petitiooers were not such contributorics. Therefore, an eminently just and proper order in the circumstances, is to allow their application for review of judgment in Civil Appeal No. 37/68, and to redecide it after hearing it in the, presence of the petitioners. Order is made accordingly. Necessary correction] shall be made in the record. Their other application (C.M. 106/72) is also] allowed, consequentially. It is made clear that such a reopening of the hearing in this Civil Appeal is not for the benefit of the other nineteen petitioners who have joined in the review petition filed by the heirs of Hakim Ali because we find that they, or their predecessori-in-interest were fully injormed of the proceedings pending before the Custodian and its nature and took the land subject to the result of that adjudication and at no earlier stage evinced any interest in the proceedings in spite of having knowledge of it.
21. As regards the third application (Civil Misc. Petition 833/72) Mst. Aziz Bibi was related to Khushi Muhammad, the deceased appellant, being widow of his brother, whose estate was the subject-matter of litigation. She deliberately allowed the appeal to proceed ex parie against her, had the means to know and possessed even the knowiedge of the death of the appellant. She admits in her petition that “she did receive notice as regards riling of concise statement and as regards procecdingi having been ordered ex parte against her”. She moved the petition after the judgment was delivered in that civil appeal. The ground taken up’by her is not that she did not know of the death of Khushi Muhammad. Her case is that even before the arguments were heard in appeal, the appellant was dead and therefore the judgment given there¬after got vitiated. The petitioner having been proceeded ex pane in appeal, and justifiably so, and showing no grounds for interference with that order cannot now be heard in seeking recall of judgment on a defect, the rectification of which she could have sought and obtained. She was more of a contributory to such a decision being given than the successor-in-interest of the appellant who died. There is therefore no merit in her petition which is rejected. In view of the nature of law points involved, no order is made as to costs.

ajax loader