[Appellate Jurisdiction]

Present: BASHARAT AHMED SHAIKH AND MUHAMMAD YUNUS SURAKHVI, JJ.

AURANGZEB and another
versus
ARIF MEH BOOB and another

Civil, Appeal No. 4, of 1997, accepted on 22.5.1997.

(On appeal from judgment of High Court dated 14.1.1996 in Civil Revision No. 78 of 1993).

Civil Procedure Code, 1908 (V of 1908)—
—-O. 22 R. 9-Abatement of suit-Application to set aside abatement-Acceptance of-Revision against-Dismissal of-Appeal against-Sub-rule 2 of O. 22 R. 9 Gives a power to court to set aside abatement only if it is proved that concerned person was prevented by any Sufficient cause from continuing suit-Application for setting aside of abatement was opposed and plea of limitation was raised-It was not specifically stated in objections that it was incorrect that file was before High Court during period mentioned in application-View taken by High Court is that this fact has to be deemed to lie admitted-But High Court failed to notice that it still remained to be decided whether this fact constituted sufficient cause-This question had still to be resolved but was left, un-decided-If suit file was with High Court, application could still be moved before triall ^agfeWgntnVisence ol suit^ile^an application could have been moved before High Court whidi cmnJrJ have attached it with suit file In that case an appropriate order could have been passed on application by trial court as and when file was received back-Duty imposed by law was moving of an application which if performed would have absolved respondents off their responsibility but they failed to do o-Held: There was no cause which prevented respondents from moving an application-Orders of High Court as well as trial Court are not sustainable-Appeal accepted Application for setting aside of abatement dismissed. [P. 305] A to C

Ch. Muhammad Yunus Arvi, Advocate for Appellants. Raja Muhammad Siddique Khan, Advocate for Respondents.

Date of hearing: 22.5.1997.

JUDGMENT

Basharat Ahmad Shaikh, J.–Facts giving rise to the present appeal, by leave of the Court, are that a suit titled ArifMehboob and others us. Muhammad Han if and others was peliditig before thelearned Additional Sub-Judge Mii-pur. Defendant No. 1, Muhammad Hanif. was murdered on4th of February 1993. An application was moved by plaintiffs in the suit on 24th of June 1993 praying that abetment may be set aside and the legal representatives of deceased Muhammad Hanif may be brought on the record. When the application was moved plaintiff Arif Mehboob, who is respondent No. 1 in this appeal, was confined in judicial lock-up as an accused in connection with the murder of defendant Muhammad Hanif. The application was accepted. The decision was un-successfully challenged before the High Court which declined to exercise revisional powers to set aside the order passed by the trial Court. Hence this appeal by leave of the Court.
2.In the application for setting aside the abatement it was stated that the suit file had been called up by the High Court on 12th of January 1993 in connection with a criminal matter titled Aurangzeb vs. The State and has, after its return from the High Court, put up before the Presiding officer for the first time on 19th of June 1993. It, was stated in the application that apparently the application was being moved after the expiry of limitation but for the reason stated above (that, the file was in the High Court) it was in the interest of justice to set aside abatement and implead the legal representatives of the deceased defendant. The application was opposed by the surviving defendants by filing objections in which it was stated that Muhammad Hanif died on 4th February while the application had been moved on 24th of June was time-barred. It was stated that the suit had already abated and legal representatives of the deceased could not be brought on the file. The High Court, has taken a special note of the act that in the objections just mentioned the only point which was raised related to limitation and did not contain any comment on the factual ground in respect of the cause of delay. It may be noted that when arguments were addressed before the learned trial Judge it was contended that during the period when the suit, file was in the High Court the application could be moved before the High Court or before the trial Court, where it could be attached with the index.
3. While accepting the application’ the learned trial Judge expressed the view that satisfactory and logical explanation for the delay in making of the application had been furnished. The High Court has, however, taken the view that the application for bringing on record the legal representatives of the deceased defendant was filed beyond the period of ninety days but impliedly the application was moved for setting aside the abatement order for which a further period of sixty days is allowed. The High Court reached the conclusion that the application for setting aside abatement was within time. The view taken by the High Court is correct. It is so because the application moved before the trial Judge did contain a specific prayer that the abatement may be set aside and it was moved with a period of sixty day from the date of automatic abatement. However, as the relevant legal provision shows, an application for setting aside abatement cannot be accepted merely on the ground that it was moved within time.
4. The relevant legal provision on the subject is Rule 9 of Order XXII of the Civil Procedure Code which is worded as follows:-“9. (1) Whore a suit abates or is dismissed under this Order, no fresh suit shall be brought on the same cause of action. (2) The plaintiff or the person claiming to be the legal representative of a deceased plaintiff or the assignee or the receiver in the case of an insolvent plaintiff may apply for an order to. set aside the abatement or dismissal; and if it is proved that he was prevented by any sufficient cause from continuing the suit, the Court shall set aside the abatement or dismissal upon such terms as to costs or otherwise as it thinks fit.”

Sub-rule (2) reproduced above gives a power to the Court to set aside abatement only if it, is proved that, the concerned person was prevented by any sufficient cause from continuing the suit. The plea taken in the application moved for setting aside abatement was that the suit file has been called upon by the High Court even before the death of Muhammad Hanif. The learned trial Judge accepted this plea but the High Court has not expressed any opinion whether it: constituted sufficient cause within the meaning of Rule 9 reproduced above and has only observed that in the objections filed to oppose the application for setting aside abatement it was not denied that the file was before the High Court. The conclusion reached by the High Court has been expressed in these words:-

“It will not be out of place to mention here that the grounds taken by the respondents for not moving the application within the period of 90 days, were not denied by the petitioners. Under the Civil Procedure Code all questions of fact must necessarily be denied either expressly or by necessary implication. Even an evasive denial of a question of fact is ignored and such fact is deemed to have been admitted. In the present case, the defendants have not denied the grounds at all which, according to the respondents, prevented them to apply in time before the Court for bringing on record the legal representatives of deceased Muhammad Hanif.”

6. We have already noted that the application for setting aside of abatement was opposed and plea of limitation was raised. It was not specifically stated in the objections that it was incorrect that the file was before the High Court during the period mentioned in the application. The view taken by the High Court is that this fact has to be deemed to be admitted. It means that it was admitted that the suit file was with the High Court, but the High Court failed to notice that it still remained to be decided whether this fact constituted sufficient cause. The High Court has not made any observation whether (.lie admitted fact did nor did not amount to a sufficient cause within the meaning of Rule 9. The acceptance of the application was duly opposed in the objections and the facts hat the file was before the High Court was not ipan facto followed by the conclusion that it was a sufficient reason which prevented the concerned person from continuing the suit. This question had still to be resolved but was left un¬ decided.
7. After anxious consideration, I am unable to uphold the plea raised by the respondents that the fact that the file was before the High Court constituted a sufficient cause within the meaning of Rule 9. If suit file was with the High Court the application could still be moved before the trial Judge even in absence of the suit file and it was for the trial Court to pass an appropriate order; the application could have been attached with the index, if not, an application could have been moved before the High Court which could have attached it with the suit. file. In that case an appropriate order could have been passed on application by the trial Court as and when the file was received back. The duty imposed by law was moving of an application which if performed would have absolved the respondents of their responsibility but they failed to do so. In my view there was no cause which prevented the respondents from moving an application. Thus the orders of the High Court as well as the trial Court are not sustainable.
8. The appeal is, therefore, accepted and the orders passed by the High Court as well as by the trial Court are set aside. Consequently the application for setting aside of abatement stands dismissed. However there will be no order as to costs.

(MYFK) Appeal accepted.

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