ABDUL RAHIM Versus SETTLEMENT COMMISSIONER
This appeal by leave of the Court is directed against an order of the High Court refusing to set aside the abatement of a constitutional petition and dismissing the same as time-barred upon the death of the contesting respondent. The core legal question examined was whether the penal provisions of Order XXII of the Code of Civil Procedure apply to proceedings in the constitutional jurisdiction of the High Court. The Supreme Court held that the provisions regarding abatement and the necessity of bringing legal representatives on record within time do apply to constitutional petitions, as effective orders cannot be passed in the absence of necessary parties. Finding no reason to interfere with the High Court's exercise of discretion on questions of fact regarding the date of knowledge of the death, the Supreme Court dismissed the appeal, affirming that proceedings abate if legal representatives are not impleaded within the prescribed time.
- Whether the penal provisions of Order XXII of the Civil Procedure Code apply to proceedings in the constitutional jurisdiction of the High Court?
- Can an effective order of quashment be made in a constitutional petition in the absence of necessary parties who have passed away?
- Whether the Supreme Court will interfere with the discretion of the High Court refusing to set aside an abatement based on findings of fact?
- Article 98, Constitution of 1962
1. SHAFIUR RAHMAN, J.‑‑ Leave to appeal was granted to examines whether in a petition filed in the constitutional jurisdiction of the High, Court, the penal provisions of Order XXII apply as much as the enabling" provisions of the Civil Procedure Code as held in Hussain Bakhsh v. Settlement Commissioner, Rawalpindi P L D 1970 S C 1.
2. The appellant had filed a constitutional petition challenging the order passed by the delegate of the Chief Settlement Commissioner depriving him of a portion of the property bearing No. P. 134, Ward No. 7, Street No. 4, Montgomery Bazar, Lyallpur. Ghulam Hussain the main respondent and the contesting party died on 19th of July, 1967 and the application for bringing his legal representatives was filed on 15th of September, 1971 disclosing that as the aforesaid respondent was residing at Rabwah and had died there he could come to know of his death only on 9th of September, 1971 and not earlier and had forthwith after ascertaining his legal representatives made application for bringing them on record. He also sought condonation of the delay in making the application and prayed for setting aside the abatement. This application was contested and issue was framed and the learned Judge recorded the finding that the death of Ghulam Hussain had taken place away from the ordinary place of residence of the appellant and he could not possibly know of it immediately. Nevertheless, the date of knowledge as disclosed by the appellant for claiming condonation of delay and for getting abatement set aside was not believed and the application was held to be hopelessly time‑barred and on that account the abatement of the appeal was not set aside.
3. The question whether the penal provisions of the Civil Procedure Code govern the procedure in constitutional petitions as well stands finally decided by this Court in numerous cases. For example, in Abdul Ghani v. Settlement Commissioner and 2 others 1971 S C M R 98 it was held that in the absence of the persons to be adversely affected by, the quashment of an order in the proceedings under Article 98 of the' Constitution of 1962 no effective order of quashment can be made and on that principle it was held necessary to implead, and that too within, time, the heirs of a deceased respondent. The same view was taken in Amanullah Khan etc. v. Member, Board of Revenue (Consolidation) Punjab 1981 S C M R 777, and Sardar Noor Hussain v. Chief Settlement. Commissioner, etc. P L D 1983 S C 62.
4. On the findings of fact recorded by the learned Judge in the High Court, the proceedings had clearly abated and we would not like to interfere in the discretion of the learned Judge, based on such finding of fact giving effect to the abatement as such and not setting it aside on the request of the appellant. This appeal fails and is dismissed with no order as to costs.
5. M.Y.H Appeal dismissed