CHINAR GUL vs CANTONMENT BOARD OF PESHAWAR THROUGH ITS EXECUTIVE
This civil appeal before the Supreme Court of Pakistan arose from a judgment of the Peshawar High Court. During the pendency of the appeal, the appellant died, and his legal representatives failed to file an application to be brought on record within the ninety-day period prescribed by the Supreme Court Rules, 1956. Subsequently, an application for substitution along with a request for condonation of delay was filed, which was opposed by the respondents. The core legal question was whether sufficient cause had been shown for condoning the delay in substituting the legal representatives of the deceased appellant. The Supreme Court held that the legal representatives failed to provide any explanation for their failure to timely notify their Advocate-on-Record or file the substitution application within the limitation period. Consequently, the Court ruled that the appeal had become defective and incompetent due to the absence of a timely substitution application, dismissing the appeal without an order as to costs.
- Whether the provisions of the Code of Civil Procedure are applicable to proceedings in the Supreme Court under its rules?
- What is the prescribed time limitation for filing an application to bring on record the legal representatives of a deceased party in the Supreme Court?
- Does failure to provide an explanation for delay in filing a substitution application constitute sufficient cause for extending time?
- Rule 5 of Order I, Supreme Court Rules 1956
- Rule 7 of Order XVI, Supreme Court Rules 1956
- Rule 9 of Order XVI, Supreme Court Rules 1956
ORDER
1. MUHAMMAD AKRAM, J.-On the 20th of June 1973, this Court allowed the necessary leave to appeal to Chinar Gul appellant from the judgment and decree passed by a learned Judge of the Peshawar High Court at Peshawar, reversing the decision by the trial Court and dismissed his suit with costs throughout. However, during the pendency of thisappeal in this Court the appellant died on the 25th of October 1976 but no application was made within time to bring his legal representatives on the record. On the 28th of April 1977 the learned Advocate-on-Record brought this fact also to the notice of the Court. It was only on the 1st of June 1977, that the learned Advocate-on-Record of tae deceased appellant moved an application on behalf of his legal representatives to be brought on the record. It was also accompanied by a separate application for the condonation of the delay in this behalf. But before us the learned counsel for the respondents has opposed these two applications and vehemently contended that the appeal bad already abated and should be dismissed as such.
2. After hearing the learned counsel for the appellant we find that allegations in the two applications do not disclose any sufficient cause for the condonation of the delay in applying to this Court for substituting the representatives of the deceased appellant on the record. All that has been alleged is that the intimation about the death of Chinar Gul appellant was given to the learned Advocate- on-Record after the period of limitation for the application had already elapsed. But there is no explanation whatever forthcoming on the record from the legal representatives of the deceased for their failure to apprise their Advocate-on-Record about it and thus move the necessary application within the time allowed by law.
3. In this connection as laid down in rule 5 of Order I of Supreme Court Rules, 1956, the provisions of the Coda of Civil Procedure are not applicable to the proceedings in this Court. However, in this behalf rule 7 of Order XVI of the Rules expressly lays down that where at any time after, the grant of special learned to appeal the record is found to be or becomes defective by reason of the death of a parson who was a party to the decree by the lower Court, it shall be the duty of the appellant to make a statement In that behalf, and the Court may, on such application, or on application by any other person Interested, grant a certificate showing who in the opinion of the Court, is the proper person to be substituted or entered on the records in place of the party on the record. In this connection rule 9 further provides that an application to bring on record the legal representatives of any appellant or respondent who has died shall be made within ninety days of such occurrence.
4. But the Court may for sufficient cause extend the time.
5. From a combined reading of these provisions it is evident that by the death of Chinar Gul appellant and in the absence of any application made within time by his legal representative for substitution of their name the record of the appeal has become defective and no decree for or against the dead man could be passed. The legal representative of the deceased have altogether failed to tender any explanation for not making the application within the time allowed by law. There is therefore no sufficient cause for following extension of time to them in support of their application.
6. We are therefore constrained to dismiss this appeal as having been rendered incompetent. But there shall be no order as to costs in the circumstances of the case.