FAZAL DIN ALIAS MUHAMMAD FAZIL Versus MAZHAR IQBAL

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 P L D 1972 S C 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 Ali and others P L D 1965 S C 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 other ne cessary documents.

6. M.A.K. Leave granted.