Syed MUHAMMAD ZAKI vs MAQSOOD ALI KHAN (DECEASED) AND 2 OTHERS
This matter arises from an application seeking reconsideration of a previous order dismissing the petitioner's application to implead the legal representatives of a deceased principal respondent in a civil appeal, which had resulted in the appeal abating against the petitioner due to a delay of 286 days. The core legal question was whether sufficient cause was shown for condoning the long delay in bringing the legal representatives on record, given the petitioner's plea of lack of knowledge regarding the death. The Supreme Court found the petitioner's plea of ignorance to be incredible, noting that the petitioner and the deceased lived in the same building and the petitioner had visited Lahore during the relevant period. However, considering that delay had already been condoned with respect to a co-appellant, the Court held that it was proper to condone the delay for the petitioner as well, allowing the appeal to proceed as a whole rather than partially. The key principle laid down is that while unexplained and inexcusable delays in bringing legal representatives on record will normally result in abatement, the court may exercise discretion to condone delay to ensure an appeal proceeds as a whole when co-appellants are similarly situated.
- Can an order dismissing an application to bring legal representatives on record due to prolonged delay be reconsidered?
- Whether failure to implead legal representatives within the prescribed period results in the abatement of an appeal?
- Is a party's plea of unawareness of a respondent's death credible when residing in the same building?
- Can delay in impleading legal representatives be condoned to allow an appeal to proceed as a whole when it was previously condoned for a co-appellant?
- Order V Rule 2, Supreme Court Rules 1956
- Order XVI Rule 9, Supreme Court Rules 1956
- Order XVI Rule 7, Supreme Court Rules 1956
ORDER
1. ' MUHAMMAD GUL, J.-This is an application under Order V, rule 2 of the Supreme Court Rules, 1956, by Syed Muhammad Zaki, one of the two appellants in Civil Appeal No, 3 of 1968, praying for a re- consideration of the order dated 24-5-1973, by one of us, dismissing the petitioner's application under Order XVI, rule 9, for impleading the legal representatives of Maqsood Ali deceased the principal respondent in the appeal. The application was dismissed on the ground that it was beyond time by 286 days and no cause was shown for condoning this long delay, and, therefore, qua the petitioner, the appeal had abated. By the same order, however, delay was condoned as respects the other appellant, namely, Syed Shafqat All (respondent 3 herein) so that the said appeal proceeds on merits so far he is concerned, ' From the evidence produced in the proceedings, in the application for impleading the legal representatives, it stands clearly established that Maqsood All Khan, respondent, died on 15-4-1970, at 47, Montgomery Road, Lahore, which incidentally is the subject-matter of the dispute in appeal between the parties. The petitioner's family lives on the first floor of the same house, while that of the deceased on its ground floor. The prescribed period of ninety days for application for the relevant purpose expired on 14-7-1970, but the petitioner and his co-appellant did not apply until 26.4-1971 for bringing the legal representatives on the record and for condonation of delay. During the pendency of the proceedings in that application, another application was moved on 1-5-1971 for setting aside the abatement.
2. ' The petitioner's case is that since his retirement in 1967, he himself took up his residence in Vehari in Multan District, where he has built a house and manages his land, and all these years, he never visited Lahore or his family until towards the end of March 1971, when he was admitted in the Mayo Hospital, Lahore, as indoor patient for being operated upon for cataract. He was discharged from the hospital on 6-4-1971, and stayed with his family in the house in dispute when on 25-4-1971 Mauzoor All Shah visited him to inquire about his health and in the course of conversation he casually mentioned about the death of Maqsood All Khan. On the basis of that information, the petitioner filed an application on 26-4-1971, for bringing the legal representatives of the deceased respondent on record. This incidentally was the date on which the appeal was posted for hearing.
3. ' It is in evidence that the petitioner used to receive his pension every month from Lahore Treasury, though he has tried to explain that his son Ahmad Shah used to draw the pension on his behalf. On the other hand, evidence was produced to show that the petitioner personally received his pension from Lahore Teasury on 16-4-1970 and 16-7-1970. It is not the petitioner's case that while on visit to Lahore, he would be staying elsewhere than with his family in the house in dispute, in which the deceased-respondent also lived on the ground floor.
4. ' The fact of the matter appears to be that when the appeal was posted for hearing during the week commencing on 26-4-1971, and the petitioner's Advocate-on-Record informed him of the same, at his Lahore address, he realized his omission to implead the legal representatives of the deceased, and to avoid the consequences of his failure, he could not invent a better excuse than lack of knowledge. But in the above circumstance, it would be straining one's credulity to a breaking point to ask him to believe that the petitioner was not aware of the death of the respondent before 25-4-1971.
5. ' It was argued by the petitioner's learned Counsel that rule 9 of Order XVI merely prescribes limitation for the relevant purpose. The rule does not expressly provide for abatement proceedings.
6. According to learned counsel, the petitioner's failure to implead the legal representatives of the deceased respondent has only created a defect in record of the appeal within the meaning of rule 7 ibid which inter alia reserves wide discretion to the Court to permit a party to remove the defect.
7. In Elahi Bakhsh v. Budha (i) and Nawab Karim v. The Chief Settlement Commissioner (2), appeals were dismissed owing to the appellant's gross failure to comply with the requirement of Order XVI, rule 9, despite the discretion in rule 7.
8. However, as pointed out in the beginning, delay has already been condoned so far Syed Shafqat Ali is concerned, and, therefore, qua him, the appeal will proceed on merits. In these circumstances, it would, in my 4 opinion, be proper to condone the delay in the case of the petitioner, also, so that the appeal proceeds as a whole and not partially. I would leave the parties to bear their own costs in these proceedings.