HALIMAN Versus MUHAMMAD DIN

1. MUHAMMAD GUL, J.‑ This appeal by special leave is against the order dated 5‑4‑1966 of a Division Bench of the former High Court of West Pakistan in Regular Second Appeal No. 168 of 1966, arming the orders to the similar effect of the two Courts below.

2. The material facts are that the land in dispute belonged to one Hassan who was governed by Custom in the matters of succession. He died sonless before the Punjab Mualim Law (Shariat) Application Act, 1948 came into force, leaving him surviving Mat. Umran who succeeded him on the usua widow's estate under Custom. On the death of Mst. Umran in 1959, that is to say, after the coming into force of the said Act, the land was mutated in favour of Muhammad Din and Muhammad Ali nephews (sons of a brother) of Mst. Umran and distant kindred collaterals of Hassan the last male holder, under Muslim Law to the exclusion of Ghulam Muhammad, a son of Mst. Rehmo, an alleged daughter of Hassan by his second wife Mst. Karam Bhari alias Kammo and certain others, who also claimed to be resi4uaries of Hassan. During the pendency of the suit, Muhammad Ali, one of the defendants and a nephew of Mst. Umran died, and a time‑barred application was made under Order XXII, rule 4, C. P. C: for bringing his legal representatives on the record. The trial Court did not find any sufficient ground for condoning the delay and declared the suit to have abated toto. On appeal, the learned District Judge decided that the application for setting aside the abatement was within time. He therefore, accepted the appeal and remanded the case for fresh decision by the trial Court s n merits. A revision against the above order was accepted by the learned Single Judge of the High Court who remitted the case for a decision to the learned District Judge to decide whether the plaintiffs had sufficient cause for, condonation of delay in making the application under Order XXII, rule 4, C . P. C.?

3. After remand by the High Court, the learned Additional District Judge by of dated 8‑3‑1965 found that the appellants herein, had failed to scow sufficient cause for not impleading the legal representatives of the deceased respondent and, therefore, the abatement of the suit could not be set aside. The above order was maintained in what was treated tin Regular Second Apps a by the following short order :‑‑‑

4. " Since the deceased was a necessary party to the suit, the fact that his legal representatives were not on the record is fatal for it. Dismissed."

5. Leave was granted to consider whether the Courts below were right in hold a that the appellants' suit had abated in toto, as a result of the non‑substitution of heirs of the deceased‑defendant Muhammad Ali ?

6. Mr. D. W Awan, the respondent's learned counsel frankly conceded and rigidly so, at the outset that he could not support the order of the learned Judges of the High Court in so far as it declared that because of the appellants' failure to implead the legal representatives of Muhammad Ali, the deceased‑defendant, the suit abated as a whole. It cannot be controverted that heirs of a deceased Muslim, succeed as tenants-in-common and not is joint tenant, so that, failure to implead the legal representative of one of the heirs cannot result in the abatement of a suit or as the case gray be era appeal, against all of them. Learned counsel, however, partially supported the impugned judgment and urged that qua Muhammad Ali, the suit had abated. In other words, the position taken on behalf of the respondents was that the plaintiff's should be non‑suited so far as the share of Muhammad Ali was concerned though the suit could proceed qua the hare of the remaining respondents in the case.

7. Learned counsel for the appellants on the other hand, submitted that Muhammad Din respondent and a brother of Muhammad Ali deceased being already on the record, sufficiently represented the estate of the deceased defendant and therefore the suit could proceed as a whole. In support of his argument learned counsel relied on a judgment of the Court in Wali and others v. Manak Ali and others (P L D 1965 S C 651) and Abdullah Shaib v. Vaqeer Beevi Ammal and others (A I R 1928 Mad. 1199 ). In the former case it was observed by this Court inter alia that the law favours adjudication on merits for a failure to so adjudicate means a refusal to the parties of their rights and an adjudication will not be refused unless there exists some insuperable practical obstacle preventing it. In the second case it was held that where the some legal representatives are brought on the record, there could be no abatement ‑even though others are omitted.

8. In the instant case it is not controverted that Muhammad Din being a full brother of the deceased defendant, substantially represented the estate of the deceased. It may be taken as fairly well‑settled that where the legal representatives of the deceased‑defendant are already on the record of a suit though in another capacity, no application is necessary under rule 4 of Order XXII, C. P. C. to implead them a: legal representatives and a suit will not abate by reason of the absence of such an application. In the instant case, on behalf of the respondents, the representative capacity of Muhammad Din qua his deceased brother is not questioned. That being so, the suit it our opinion could have proceeded.

9. For the foregoing reasons, we accept the appeal, set aside the orders of the Courts below and remand the case for its decision on merits.

10. The costs shall abide the event. Appeal accepted.