ALLAH DITTA vs BARKAT ALI and 3 others

' ABDUL SHAKURUL SALAM, J.---This appeal by leave arises in the following circumstances.

1. Relevant facts are that the appellant filed a suit for a declaration and permanent injunction on 30-10-1953 against Ahmoo (predecessor-in-interest of the respondents Nos.1--3) and Madarsa Taleemul Quran Anjuman-e-Khuddam-ul-Sufian, Gujrat through its President the respondent No,4 to the effect that he was the owner in possession of land measuring 51 'Canals 19 Marlas and that Ahmoo in collusion with revenue staff had got a mutation of sale sanctioned in his favour. He produced copy of Jamabandi for the year 1960-61. The defendants contested the suit. It was further asserted that Ahmoo had transferred the land to the respondent No,4. Various issues were framed including the following:--

(1) Whether the suit land was sold by the plaintiff to defendant No,1? OPD.

(2) Whether the suit is bad for non-joinder of all the members of the Anjuman? O.D.

2. Both the issues were decided against the defendants and the suit of the plaintiff/appellant decreed vide judgment and decree of the learned Civil Judge, Gujrat, dated 11-1-1966. Both the defendants appealed. Without deciding the appeal on merit the learned Additional District Judge allowed the same on the ground that all the members of the Anjuman should have been made a party, as it was apparently unregistered, not realizing that decision on the issue by the learned trial Court had not been questioned in the appeal. The suit of the plaintiff/appellant was dismissed. This is vide judgment and decree, dated 31-5-1966. The plaintiff filed a R.SA. No,596 of 1966 in the Lahore High Court. It remained pending in the High Court for the next twenty-two years. Meanwhile Ahmoo had died. Before hearing of the appeal sometime in February, 1988 the appellant filed an application for bringing on record the legal representatives of Ahmoo. He produced a certified copy of the death entry of Ahmoo showing the death to have occurred on 26-12-1974. The Anjuman produced certified copy of the death entry showing that death had happened on 22-10-1970 i.e, before the Law Reforms Ordinance of 1972 which avoided abatement for non-impleading legal representatives in time. The learned Judge in the High Court called Secretary, Union Council with relevant registers and after perusal thereof accepted the certified copy produced by the Anjuman and dismissed the appeal as having abated. This is vide order, dated 20-12-1987.

3. At the leave stage it was contended that "after having transferred the land to respondent No,4, Ahmoo had been left with no interest therein. Consequently the failure of the petitioner to implead his legal representative in his place could not result in the abatement of the appeal". Leave to appeal was granted on 6-3-1990.

4. Learned counsel for the appellant contended that the contesting respondent who claimed to be the transferee of the land from Ahmoo was present before the learned High Court. The appeal should have been decided on merits. It is not always necessary to implead the predecessor-in- interest of a contesting defendant/respondent, otherwise impleadment may go on till Adam. He next contended that the learned Judge in the High Court should not have himself decided the question of the date of the death of Ahmoo, rather should have remanded the. Question to the learned trial Court to take evidence on the point and then decide that.

5... Learned counsel for the respondent No,4 on the other hand vehemently contended that in the absence of the legal representative of the deceased transferor of the answering respondent No,4 the appeal was rightly dismissed as having abated.

6. As long as 1963 it was laid down by this Court in the classic statement of law in Imtiaz Ahmad v.

Ghulam All etc. PLD 1963 SC 382 at 340 as follows:-- "...The proper place of procedure in any system of administration of justice is to help and not to thwart the grant to the people of their rights. All technicalities have to be avoided unless it be essential to comply with them on grounds of public policy. Any system which by giving effect to the form and not to the substance defeats substantive rights is defective to that extent. The ideal must always be a system that gives to every person what is his."

7. In this case what has happened is that the appellant who is shown as an owner in the Record-of- Rights Jamabandi 1960-61 and in whose favour there is decree on merits granted by the trial Court has been deprived thereof on technical or procedural polemics. To avoid abatement in such circumstances law was amended by Law Reforms Ordinance, 1912 whereby sub-rule (3) was substituted by the new rule in Rule 4, Order XXII, C.P.C. The new rule reads as follows: "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 it had been pronounced before the death took place."

8. The whole Order is applicable to appeals, vide Rule 11, C.P.C.

9. The contesting respondent who claimed to be the transferee of the land in dispute being present before the learned High Court non-impleadment of his predecessor was not fatal to hearing the appeal and determining the real controversy in whom the land vested.

10. In view of what has been stated above, the appeal is allowed and case remanded to the learned High Court for fresh decision. In the circumstances the parties are left to bear their own costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.