Present: Kl 1ALID PAUL KHWAJA,

J MUHAMMAD YAR etc.-
versus
Mst. BAKHAN ere.

F.A.O. Nos. 106,107,198 and 199 of 1977, decided on 11.12.1991
(approved for reporting on 26.6.1992).

Abatement–
—Declaratory suits-Evidence of parties concluded-Death of one of defendants-Whether suits had abated-Question of-Hearing is said to have been concluded in a suit when parlies’ evidence is concluded-In this case, no arguments had ever been heard and, therefore, for all intents and purposes, hearing had “concluded on 15.9.1969 before death of defendant on 7.7.1970- Held: In view of provisions of Order XXII Rule 6 of C.P.C., no abatement could take place in both suits on account of death of Muhammad Nawaz defendant-F.A.O. Nos. 198 and 199 instituted by plaintiffs treated as revisions and accepted. [P.363]A&B

PLD1961B.J. 58 ref.

Raja Muhammad Anwar and Raja Mahmood Akhtar, Advocates for Appellants (in F.A.O. Nos.106 and 107 of 1977) and for Respondents (in F.A.O. Nos.198 and 199 of 1977).

Mr. Abdul ‘Aziz Qureshi, Advocate for Respondents (in F.A.O. Nos.106 and 107 of 1977) and for Appellants (in F.A.O. Nos. 198 and 199 of 1977).

Date of hearing: 13.10.1991.

JUDGMENT

By this judgment, I propose to dispose of the following FAOs in which common questions of law and facts are involved:—
(/) FAQ No.106 of 1977 “Muhammad Yar etc. v. Mst. Bakhan”
(//) FAQ No. 107 of 1977 “Muhammad Yar etc. v. Wst. Sattan”
(Hi) FAQ No. 198 of 1977 “Msl. Bakhan v. Muhammad Yar and another”
(iv) FAQ No.199 of 1977 “Mst. Sattan v. Muhammad Yar and others”,

2. The above appeals ha\c arisen out of the following facts:-

On 4,9.1968 Mst. Sattan instituted a suit (No.95 of 1968) in the Civil Court Sargodha against Muhammad Yar, Muhammad Nawaz, Muhammad Riaz and Dost Muhammad for a declaration to the effect that she was the owner in possession of land measuring 87 kanals 5 marlas situate in village Utti Tehsil and District Sargodha which she had inherited from her father vide inheritance mutation No.157 dated 29.9.1949, that the registered sale deed dated 21.2.1967, purporting to have been executed by her in favour of Muhammad Yar, Muhammad Nawaz and Muhammad Riaz aforesaid with regard to 56 Kanals of land, was a fake and fabricated document which she had never executed, that the said sale deed being null and void was ineffective against her rights. She further sought a declaration to the effect that she had not gifted away 31 Kanals 5 Marias of her land in favour of her brother Dost Muhammad (the 4th defendant) and that mutation No. 28 dated 20.9.1967 with regard to the said gift, a mention of which had been made in the above mentioned sale deed, was also null and void. By way of consequential relief she sought the cancellation of the said sale deed. She also sought the issuance of a permanent injunction to restrain the so called vendees from interfering with her possession over the suit land. On the same day her sister Mst. Bakhan also instituted a suit (No.196 of 1968) in same Court at Sargodha against Muhammad Yar, Muhammad Nawaz and Nfuhammad Riaz aforesaid. She also sought a declaration to the effect that she was the owner in possession of 87 Kanals 5 Marias of land situate in the above mentioned illage which she had inherited from her father through inheritance mutation No.157 dated 29.9.1949, that the registered sale deed dated 23.2.1967 purporting to have been executed by her in favour of Muhammad Yar, Muhammad Nawaz and Nfuhammad Riaz with regard to the said land was a fake and fabricated document and thus being null and void was ineffective against her rights. By way of consequential relief she sought the concellation of the said sale deed. She also prayed for the issuance of a permanent injunction to restrain the ostensible vendees from interfering with her possession.
3. The vendees, hereinafter called the defendants, resisted the suits. Dost Muhammad defendant No.4 in suit No.95 of 1968, however, admitted the claim of Mst. Sattan. On the pleadings of the parties, issues were framed in each suit. Evidence was led on the said issues and the suits were fixed for arguments when on 7.7.1970 Muhammad Nawaz, one of the defendants died. On 8.10.1970, the plaintiffs moved applications in their respective suits for bringing on record the legal representatives of the said deceased defendant. They also prayed for setting aside the abatement of the suits, if any.
4. The defendants contested the said applications on the plea that the same were barred by time and the suits stood abated.
5. On the said applications, the following two issues were framed:-

(/) Whether the application is within time?
(//) Whether there is sufficient cause to set aside the abatement?The plaintiffs examined

Ghulam Farid Moharrir Head Constable, Police Station City, Sargodha, Bati and Khanjar as AWs. They also appeared as their own witnesses. In rebuttal the defendants examined Muhammad Hayat, Maula Bukhsh as RWs, while Muhammad Yar defendant appeared as RW.3. Ext AW.1/1 a copy of report No.32 dated 7.7.1970 entered in the Register Roznamcha at Police Station, Sargodha was also produced in evidence to confirm that Muhammad Nawaz deceased defendant had accidently died on 7.7.1970 due to electric shock.
6. After considering the said evidence, the learned trial Court came to the conclusion that the applications for bringing on record the legal representatives of Muhammad Nawaz deceased defendant moved by the plaintiffs were barred by time and therefore the suits had abated in toto because the transaction in each suit was ‘compact and indivisible’. Consequently vide judgments and decrees dated 10.12.1973, the suits were dismissed.
7. Feeling aggrieved, both the plaintiffs namely Mst. Sattan and Mst. Bakhan went in appeal. The learned District Judge, Sargodha, after hearing the parties’ counsel, partly accepted the said appeals vide judgments and decrees dated 16.3.1977 holding that the suits so far as they related to Muhammad Nawaz deceased defendant had abated and there was no ground for setting aside the said abatement. It was further held that the learned trial Court was wrong in holding that the transactions in question were ‘compact and indivisible’ and therefore abatement against one defendant would not bar the hearing of the suit against the other defendants. Consequently abatement against the remaining defendants was set aside and the suits were remanded to the learned trial Court for decision on merits.
8. Both the parties, plaintiffs as well as defendants, have brought under challenge the aforementioned decisions of the learned District Judge through the above mentioned FAOs. The plaintiffs pray for setting aside the abatement against the deceased while the defendants urge the dismissal of both the suits on the plea of total abatement.
9. I have heard the parties’ learned counsel and have, with their assistance, gone through the record.
10. Perusal of the record has revealed that issues in the two suits were framed on 27.11.1968, the plaintiffs had concluded their evidence on 2.6.1969 while the defendants had closed their evidence on 15.9.1969. Thereafter the suits were adjourned to various dates for the hearing of arguments. Before any arguments could be heard Muhammad Nawaz deceased died and subsequently the suits were dismissed on the ground of abatement. It is thus established that death of Muhammad Nawaz defendant had occurred after the conclusion of evidence and before the pronouncement of judgment. Order XXII, Rule 6 lays down:

6. Wo abatement by reason of death after hearing.-Notwithstanding anything contained in the foregoing rules, whether the cause of action survives or not, there shall be no abatement by reason of death of either party between the conclusion of the hearing and the pronouncing of the judgment, but judgment may in such case be pronounced notwithstanding the death and shall have the same force and effect as if it had been pronounced before the death took place”.

In view of the above provision of law no abatement could take place in both the suits on account of the death of Muhammad Nawaz defendant who had died on 7.7.1970. It goes without saying that hearing is said to have been concluded in a suit when the parties’ evidence is concluded and for the purposes of Rule 6 ibid if arguments are heard in the case then the hearing would be considered to have been concluded when arguments were heard. In the present case no arguments had ever been heard and therefore, by all intents and purposes the hearing had concluded on 15.9.1969 when the defendants closed their evidence. In support of this view Abdullah and another v. Mian Tafazzul Hussain and another (PLD 1961 B J. 58) may be referred to.
11. Surprisingly this aspect of the case was not considered either by the learned trial Court or by the learned appellate Court. It was also not urged by the plaintiffs either in their appeal before the learned District Judge or even before this court. However, when the attention of the parties’ learned counsel was invited to the above mentioned provision of law they had no hesitation in conceding that B the said provision would apply in the present case and the suits would not abate despite the death of one of the defendants. It is consequently held that the plaintiffs suits could not have abated due to the death of Muhammad Nawaz
defendant. Accordingly the appeals of the defendants (FAO Nos. 106 and 107 of 19~”7) are dismissed while the appeals instituted by the plaintiffs (FAO Nos. 198 and 199 of 1977) are treated as revisions and accepted. The impugned orders of abatement are set aside and the suits are remanded to the learned trial Court for decision on merits.
12. The parties shall bear their own costs.

(MBC) (Approved for reporting) Abatement set aside.

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