SAIFUDDIN vs ZAINUDDIN and another

ORDER

1. This application has been moved under Order XIX, Rule 2, C.P.C. With the prayer that deponent/Perokar Suleman son of Tahir Ali be called for the purpose of cross-examination as there is a dispute over the gender of the two legal heirs namely Huzama and Juzer as mentioned in the list of legal heirs filed with the plaint in the suit and in the list of legal heirs filed alongwith CMA No, 225/1995. However, it is not disputed that these two persons are the legal heirs of the deceased. In these circumstances, there is no need to call the dependent for cross-examination. The application stands dismissed.

2. This application has been moved by the counsel for the appellant with the prayer for joining LRs of the deceased appellant in the present appeal. Objections to this application have been filed by the respondents. One of the grounds taken by the respondent is that this application is barred by limitation under Article 176 of the Limitation Act as the same has been moved after lapse of 90 days from the date of death of the appellant. The appellant has died on 1-6-1994 whereas this, application has been moved on 14-9-1994 which is about 16 days beyond the permissible period of 90 days. Article 176 of the Limitation Act lays down that such application for joining the LRs of deceased appellant will be made within 90 days from the date of death of the appellant. In these circumstances, we are of the view that the provision of subsection (2) of Rule 3 of Order XXII, C.P.C.

Will be attracted. One of the legal heirs Muhammad is mentioned in the list of LRs filed alongwith the plaint, to be the person to inform the Court in case of death of appellant, who was plaintiff in A the suit and he having failed to do so within 90 days as above, the said legal representatives cannot be brought on record as it is barred under law of limitation. Sub-rule (2) of Rule 3, Order XXII, C.P.C. Provides as under:-- "(2) Where within the time allowed 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 plaintiff, have the same force and effect as if it had been made or pronounced before the death took place."

Rule 11 of Order XXII further provides that the procedure provided for the suit would also apply to the appeal. In the case of Ibrahim v. The Settlement Commissioner (PLD 1987 Karachi 493) a DB of this Court has also held that in such circumstances the suit/appeal does not stand abated. In the case of Bibi Khudeja v. Pir Sarwaruddin Shah (1992 MLD 490) a DB of this Court has held as under:-- "Period prescribed for making such application, which was made either by the plaintiff or by the legal representatives of deceased defendant was ninety days, which period would be computed from the date of the death of the defendant -- where no application was made either by the plaintiff or by legal representatives of deceased defendant within time prescribed by law, Court would be obliged to continue the proceedings notwithstanding the death of deceased and any judgment or order pronounced thereby, would have the same effect and force as if it had been pronounced before the death of defendant. Article 177, Limitation Act has prescribed period of ninety days for bringing legal representatives of deceased defendant on record either on the application of plaintiffs or on the application of legal representatives -- such period has to be computed from the date of death of deceased defendant -- where no application was made either by the plaintiff or by the legal representatives of deceased defendant within the time prescribed by law, Court would be obliged to continue the proceedings notwithstanding the death of the defendant any judgment or order pronounced thereby would have the same force and effect as if it had been pronounced before the death of defendant took place."

' The same Bench has further held that failure of legal representative of deceased to apply within the period prescribed by law would debar them from taking part in the proceedings and the suit would continue in name of the dead party.

From the above discussion we are of the view that the application is liable to be dismissed.

Accordingly, we dismiss the application but hold that present appeal shall continue to proceed in the name of the deceased appellant.