FAZAL DIN Alias MUHAMMAD FAZIL AND Others vs MAZHAR IQBAL AND Other
This matter concerns a petition for leave to appeal before the Supreme Court of Pakistan regarding the abatement of an appeal in the High Court. The core legal questions involve whether an appeal can abate against certain co-appellants when another co-appellant remains on the record, whether delay in applying to set aside an abatement can be condoned if the legal representatives were misled by the belief that the appeal was saved, and whether a surviving co-appellant can represent the joint interest of the estate of deceased brothers. The Court granted leave to appeal, identifying that the High Court's decision regarding total abatement requires review in light of established precedents concerning the representation of joint interests and the powers of the appellate court under the Code of Civil Procedure. The key principle to be examined is the extent to which the presence of a surviving co-appellant prevents the total abatement of an appeal and the applicability of appellate powers to preserve the integrity of the proceedings despite the death of other parties.
- Can an appeal abate against specific co-appellants when another co-appellant remains on the record?
- Can delay in applying to set aside an abatement be condoned if legal representatives were misled regarding the status of the appeal?
- Does a surviving co-appellant have the capacity to represent the joint interest of the estate of deceased co-appellants?
- Order XLI Rule 33, Code of Civil Procedure 1908
ORDER
1. MUHAMMAD AFZAL ZULLAH, J.-After bearing the learned counsel in this petition for leave to appeal, we consider it a fit case for grant of leave, inter aria on the following grounds :-
(a) whether in the presence of Fazal Din a co-appellant, the appeal could have abated quo his two brothers Umer Hayat and Muhammad Alam;
(b) If so, whether the delay in applying for setting aside this abatement could not be condoned on the ground that the legal representatives were misled by possible saving of the abatement on ground mentioned in para. (a) above.
(c) whether Fazal Din could not represent the estate of his deceased brothers by representing their joint interest and what is the effect o Order XLI, rule 33, C.P.C, and the rule laid down in Shah Muhammad and others v. Muhammad Bakhsh PLD 1972 SC 321, in this behalf ;
(d) whether it was a case of so-called total abatement of the appeal in the High Court notwithstanding the principle laid down in Wall and others v. Manak A.I and others PLD 1965 SC 651.
2. Order accordingly.
3. Security Rs. 2,000.
4. Order for maintenance of status quo to continue.
5. Appeal to be prepared on present record with liberty to add otherne--cessary documents.