SARDAR BEGUM Versus ABDUL QADIR

ORDER

Respondent No. 1, Ch. Abdul Qadir, who is the only contesting .respondent in this appeal, died on 31-1-1973 and his legal heirs have not been brought on record so far by the appellant, though an application has now been filed on 3-7-1974, under Order XXII, rule 4 for bringing on record -the legal heirs of the deceased respondent.

C. M. 2023/C-74, has been filed on behalf of the legal representatives of the deceased respondent with the prayer that since they have not been brought on record in place of their predecessor-in-interest within the prescribed time, therefore, the appeal may be declared to have abated in toto. This prayer has been vehemently opposed by the appellants mainly on -the basis of amendment introduced in rules 3, 4, and 9 of Order XXII, C. P. C. by the Law Reforms Ordinance, 1972. The relevant amendment in :Order XXII may be reproduced below for advantage

"(a) in rule 3,-

(1) in sub-rule. (1) after the word "alone", the commas, words and figures "or on receipt of an intimation of the death of such plaintiff from the person nominated by him for that purpose under rule 26, Order VII" shall be inserted.

(2) For sub-rule (2), the following shall be substituted, namely:

'(2) Where within the time allowed by law no application is made or intimation is given under sub-rule (1), the Court may proceed with the suit, and any order made or judgment pronounced in such suit shall, notwithstanding the death of such plaintiff, have the same force and effect as if it had been made or pronounced before the death took place.'

(b) in rule 4,-

(1) in sub-rule (1), after the word "alone", the commas, words and figures, "or on receipt of an intimation of the death of such defendant from the person nominated by him for that purpose under rule 13, Order VIII" shall be inserted, and

(2) for sub-rule (3), the following shall be substituted, namely:-

(3) When within the time limited by law no application is made or intimation is given under sub-rule (1), the Court may proceed with the suit, and any order made or judgment pronounced in such suit shall, notwithstanding the death of such defendant, have the same force and effect as if it had been pronounced before the death took place,' and after sub-rule (3), as substituted aforesaid, the following new sub-rule (4), shall be added, namely:-

(4) 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 not withstanding his death, and such judgment shall have the same force and effect as if it had been pronounced before his death took place'."

(d) For rule 9, the following shall be substituted, namely :-

"(9) Effect of dismissal.-(1) When a suit is dismissed under rule 8, no fresh suit shall be brought on the same cause of action.

(2) Any person claiming to be legal representative of a deceased plaintiff or defendant or the assignee or the receiver in the case of an insolvent plaintiff may apply to the Court for setting aside any order made or judgment pronounced by it in his absence, and if it is proved that he was prevented by any sufficient cause from continuing the suit or defending the suit, as the case may be, the Court shall set aside the order or the judgment, upon such terms as to costs or otherwise as it thinks fit."

2. The amendment as introduced in sub-rule (3) of rule 4 of Order XXII, shows that if no application is made within the time limited by law for bringing on record the legal representatives of a deceased party to the suit, the Court can proceed with the suit and any order made or judgment pronounced in such suit shall, notwithstanding the death of such person, have the same force and effect as if it had been made or pronounced before the death took place.

3. It has been argued on behalf of the legal representatives, that since the appeal was filed in 1963, therefore, the provision as contained in unamended rule 4 of the Order would be applicable to the case. According to the learned counsel since respondent No. 2 was the only contesting party and after his death right to sue does not survive and since his legal representatives have not been brought on record within the time prescribed by law, therefore, the appeal has abated In toto. According to the learned Counsel since 49 amendment hap been introduced in Art, 177 of the Limitation Act, whereby a period of 90 days has been prescribed for filing an application for bringing on record the legal heirs of a deceased party to the suit, and since no such step has been taken in this regard by the appellants, therefore, the appeal has abated. It is argued that the amendment as introduced in Art. 171 of the Limitation Act as well as in rule 9 of Order XXII, C. P. C. does not make any effect in view of the fact that no amendment has been made in Art. 177 of the Limitation Act whereby it is obligatory to make application for bringing on record the legal representatives within 90 days of the death of a party. It has also been argued on the basis of an observation, as made in Sardar Noor Hussain v. Chief Settlement Commissioner etc. P L D 1973 Lah. 809, that the law of abate ment has not become obsolete and has not ceased to be applicable.

4. I am afraid none of the contentions raised above has any sub stance. The judgment as relied upon by the learned counsel does not help the legal representatives of the deceased respondents. The facts of the cited case show that respondent No. 2 in the L. P. A. died on 23-7-1969, when the appeal was pending while necessary application for bringing on record the legal representatives was filed on 11-2-1970. It was argued before the learned Judges that after the enforcement of Law Reforms Ordinance, 1972, on 14-4-1972, the previous relevant provision with regard to abatement had become obsolete and the effect of the amendment as introduced would be retrospective. This plea was repelled and in that context the observation was made that the law of abatement had not become obsolete and had not ceased to be applicable, as in that case the death had taken place prior to the enforcement of the Law Reforms Ordinance and according to law the relevant provision of law, which was in force at that time, was applicable. The delay in filing the application for bringing on record the legal representatives of the deceased respondent was not condoned and the appeal was found to have abated under rule 4 of Order XXII.

This view has also been taken by my learned brother A. R. Sheikh, J. in Ghulam Haider v. Mst. Raj Bhari and 4 others P L D 1973 Lah. 372 whereby it has been held that operation of the amended law would be prospective and not retrospective. It has been held in Nabi Ahmad and another v. Home Secretary, Government of West Pakistan, Lahore P L D 1969 S C 599 that the rights of the parties arising from facts, which come into existence before the passing of a statute, should be presumed to be unaffected, unless it is expressly or by necessary implication made retrospective. The necessary amendment as introduced by the Law Reforms Ordinance does not speak of the operation of the amended law to be retrospective and as such in the absence of any indication to that effect its operation will be prospective.

5. The argument that since Article 177 of the Limitation Act has not been amended, therefore, keeping in view the provision as contained therein if necessary application is not filed within a period of 90 days for bringing on record the legal representatives of a deceased party to suit, the suit or appeal will abate, has also no substance, so far as the effect of amended rules 4 and 9 of Order XXII and Art. 174 of the Limitation Act is concerned. A What is required by Article 177 is that such application should be filed within a period of 90 days. The question is, as to what is the effect of not filing such application within that time. The effect as provided previously in rule 4 of Order XXII has now been nullified by the amended rule, which provides that even in the absence of any application having been move for impleading the legal representatives within the prescribed time, order or judgment, as the case may be, may be pronounced in the suit or appeal and it will have the same force and effect as if it had been made or pronounced before the death took place. It is also significant to notice that the word `abatement' has been eliminated in amended rule 9 as well as in amended Article 171. According to the old law an application was to be made under rule 9 for setting aside the abatement whereas under the amended law an application by the legal representatives of a deceased plaintiff or defendant, as the case may be, has to be made for setting aside any order made or, judgment pronounced in the absence of a party. Similarly in amended Article 171 for the words for an order to set aside an abatement the words "by the legal representatives of a deceased plaintiff or defendant for setting aside an order or judgment made or pronounced in his absence" have been substituted. The effect of the amended provisions of law, as referred to above, would be that abatement after the death of a party would not take place even if his legal representatives have not been brought on record within the time limited by law. The argument of the learned counsel that vested right bad accrued to the respondent as well as his legal representatives, after his death, with regard to abatement at the time when the appeal was filed in 1963. I am afraid, this contention has no force. If there was to be any vested right in regard to abatement that was contingent upon the death of a party and in the absence of that no such right could accrue. In the present case the death admittedly took place in January 1973, and, as such, no right with regard to abatement accrued to the legal representatives thereafter, which has been taken away by the amended law as discussed above.

It is not denied that the Legislature is competent to take away any vested right accrued to a party. If the necessary amendment as discussed above had not been introduced the appeal would have abated under the old law as contained in rule 4 of Order XXII, but this cannot happen now after the enforcement of Law Reforms Ordinance.

7. For the aforesaid reasons, there ig no force in C. M. 2023/C-74, which is hereby dismissed without any order as to costs. The result is that R. S. A. 114/63 has not abated. The application submitted by the appellants on 3-7-1974 for bringing on record the legal representatives of the deceased respondent is hereby granted in the interest of justice.

The R. S. A. will now be fixed by the Office for hearing immediately after the summer vacations.

K. B. A. Petition dismissed.