MUHAMMAD SHARIF Versus AHMAD DIN
This second appeal was maintained in February, 1966 by four defendants against three plaintiffs to challenge the appellate decree dated 11‑11‑1965 whereby an Additional District Judge had only partly accepted an appeal brought by them into ordering dismissal of the suit of the plaintiffs with regard to half of the suit land measuring 36 kafals 10 marlas but he affirmed the trial Court's decree passed against them on 15‑12‑1964 for possession on the basis of title of the plaintiffs regarding the remaining land.
2. Having been admitted to regular hearing on 24‑2‑1966, this appeal was listed for 5‑5‑1980 when the Advocate appearing on the respondent side stated in the presence of the learned counsel for the appellants that Ahmad Din and Wahab Din (respondents Nos. 1 and 2) have died and, hence, he represents only the third respondent Shahab Din whereat adjournment was made until 1‑6‑1980 with the liberty granted for moving the Court for impleading their legal representatives before that date. Move for the purpose was, however, not made by the surviving respondent who himself died on 9‑10‑1983 and C.M.No. 1847/C of 1984 was maintained by the appellants for impleading Mst. Rashid Bibi, a daughter of Shahab Din, as his sole legal representative but neither were the names of the sons of his two deceased brothers mentioned therein as his collateral‑heirs nor was any application made at that time for the impleadment of the legal heirs of the said two deceased plaintiffs. This application was, however, allowed subject to all just exceptions by my learned brother Khalil‑ur‑Rehman, J. on 2‑5‑1984 despite the fact that she could not have represented the entire estate of her father.
3. It was only on 12‑9‑1987 that two applications bearing C.M.Nos. 4062/C and 4064/C of 1987 were moved by the appellants alongwith C.M.No. 4063/C of 1987 for impleadment of the legal‑representatives respectively of Ahmad Din respondent No.l, Wahab Din respondent No. 2 and Jalal Din appellant No. 2 whose deaths, as per the copies of the death‑entries accompanying therewith, had taken pace respectively on 12‑5‑1972, 10‑12‑1972 and 22‑6‑1972. Since those applications had been moved after a lapse of 15 years from the dates of their deaths and they were governed by the residuary Article 181 of the Limitation Act which prescribes a limitation of 3 years from the date that the right to apply may accrue and neither was there any explanation furnished for such an extraordinarily delayed move nor had even a prayer been made for condonation of delay, therefore, all three applications were rejected by my order dated 16‑9‑1987 as being barred by time. This order still holds the field.
4. The R. S . A . has come up for hearing and on the respondent side Ch. Abdul Hamid, Advocate has appeared for Mst. Rashid Bibi, the only one legal‑representative of Shahab Din respondent No. 3 and, being his daughter, she can represent only half of his estate. The other half thereof, like the estates of the other two plaintiff respondents, remains un-represented. The R.S.A. has thus been rendered imperfectly constituted.
5. Learned counsel for the surviving appellants, however, contends that the concept of abatement of suits and appeals has been completely abolished from 14‑4‑1972 by the Law Reforms Ordinance which has radically changed the provisions of Order XXII of the C . P. C . so that the suits and appeals are entitled to henceforth be continued without regard to the deaths taken place after the said date. Although the first limb of the contention relating to the change of law is correct, yet, the conclusion thereon reached by the learned counsel does not seem to necessarily follow therefrom as a rational deduction. No doubt, the change of law is with regard to procedure and no one may have a vested right thereabout as has been held in The State v. Maulvi Muhammad Jamil and others (P L D 1965 SC 681) and Nabi Ahmad and another v. Home Secretary, Government of West Pakistan, Lahore and 4 others (P L D 1969 SC 599) and as such, it normally operates retrospectively (see Ch. Safdar Ali v. Malik Ikram Elahi and another 1969 S C M R 166) to govern even the pending cases. But the position of such amendments becomes slightly different where it becomes difficult to apply the changed procedure to pending cases. In such a position the rule which becomes applicable is stated in Gopeshwar Pal v. Jiban Chandra (I L H 41 Calcutta 1125) at page 1141 of the report, as under:‑---
The taw as amended may regulate the procedure in suits in which the plaintiff could comply with its provisions but cannot (in our opinion) govern suits where such compliance was from the first impossible.‑‑‑‑‑‑."
6. In the present suit brought on 19‑10‑1962 and also in this second appeal relating to the year 1966, insurmountable difficulties come in the way of applying the amended procedural provisions of Order XXII of the C.P.C. due to the absence of the lists of the legal heirs of the parties, in the suit and also in the appeal therefore the requirements of the Provisions of Rule 26 of Order VII and. Rule 13 of Order VII of the C.P.C. are left uncomplied and it does not remain practicable to give effect to the amended provisions of Order XXII. Hence, this appeal has to continue to be governed by the unamended provisions of Order XXII of the C.P.C.
7. The original provisions relating to abatement were excepted under Rule 1 of Order XXII of the C.P.C. from being attracted only to cases wherein right to sue could be said to have survived to or against the surviving parties. It was their own case of the appellants in the District Court (see ground No. 3 of the memo of their appeal filed there) that their rights are joint and undivided. A different view cannot be reached out even from the decrees passed by the two Courts below and hence the right of appeal cannot be held to have either survived to the three remaining defendants alone or even against only one of the legal heirs of one only of the three plaintiff -respondents. It is inevitable that inconsistent decrees may come into existence in the event of this appeal being accepted qua the survivors alone. Absence of representation of the remaining estates of the plaintiff‑respondents, which comprise also of the decree herein impugned renders this appeal as a whole imperfectly constituted because of decree secured by them is not capable of being reversed without hearing all those who can be interested in defending it.
8. Result of the above discussion is that, upon either view, this appeal has been rendered incapable of succeeding and the same is accordingly dismissed. The parties are, however, left to bear their own costs.
A . A . /M‑914 /L: Appeal dismissed.