' TASSADUQ HUSSAIN JILLANI, J.--- Leave is sought against the judgment, dated 9-3-2005 passed by a learned Judge of Lahore High Court vide which petitioners' application for the review of the order, dated 13-1-2005 was dismissed.
2. Facts in brief are that the predecessor-in-interest of the petitioners namely Ghulam Shabbir was a Clerk in the Allied Bank of Pakistan. He was proceeded against departmentally on ground of misconduct which ultimately culminated in the passage of the order of his dismissal from service passed by the competent authority. This order was challenged before the Punjab Labour Court No,4 which vide judgment dated 15-5-1999 having considered the evidence led by the parties set aside the order of his dismissal. This order was challenged in appeal by the respondent-Bank and the learned Appellate Tribunal vide judgment, dated 2-5-2002 set aside the trial Court's judgment and restored the order of dismissal from service. The judgment of the Appellate Tribunal was challenged in constitutional petition which was dismissed on 13-1-2005 shortly on the ground that since the predecessor-in-interest of the petitioners namely Ghulam Shabbir had died, the latter's constitutional petition had abated. With regard to petitioners' claim that they being legal heirs of the deceased were competent to pursue the petition, it was held that they could avail the remedy of civil Court.
3. Learned counsel for the petitioners seeks leave on the ground that the predecessor-in-interest of the petitioners was dismissed on flimsy grounds; that he had an unblemished record; that petitioners had a right to have the lis decided on merit as not only they wanted to have the stigma on the name of their predecessor-in-interest removed but also if the order of dismissal is set aside, the wife could avail of the pensionary benefits.
4. The petition has been opposed by respondents' learned counsel on the ground that the petitioners have a remedy to file a civil suit and that the writ petition could not proceed any further after the death of the predecessor-in-interest of the petitioners.
5. The submissions made have been considered.
6. The question whether after the death of the plaintiff or the petitioner proceedings would abate would primarily depend on the nature of cause of action. An "action" may abate on the death of a party but the cause of action may survive his death. "Death" in this context does not mean a civil death. Referring to the case of Fix v. Philadelphia Barge Co. 290 US 530, 78 L ed 481, 54 S Ct 270, in American Jurisprudence Second Edition at page 82, it has been observed as under:-- "In considering the matter of the abatement of an action by the death of a party, as well as the survival and revival of the action, it must be kept in mind that there is a clear difference between the action and the cause of action; a cause of action may survive although an action based thereon is abated by the death of a party.
' At common law every pending action abated as a matter of procedure by the death of a sole plaintiff or defendant, and it could not be revived thereafter whether the cause of action survived or not. But if the cause of action did survive, a new action might be brought by or against the representative, or the heirs or successors, of the decedani. However, if the cause of action did not survive no action could be brought thereafter based on the same cause ... Courts in the various States are apparently agreed that the death of a plaintiff does not abate an action in ejectment, or that it may be revived -by the personal representative as a matter of course; but in case of the death of defendant the action has been held to abate so as to require a new action in case the successors or heirs of the decedent take possession of the property or to require a revival of the action against the heirs."
7. It is a matter of common knowledge that all States have made necessary amendments in the relevant Statutes and rules to ensure that there is no arbitrary cessation of a proceeding where the cause of action survives as also to provide for substitution of legal representative in case of death so that the case proceeds and the lis is decided on merits. In our own jurisdiction, Civil Procedure Code was amended and Order XXII, rules 1 and 2 specifically laid down the effect and consequences of death of a plaintiff or defendant. These rules read as under;-- "1. No abatement by party's death if right to sue survives.--- The death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives. (emphasis is supplied).
2. Procedure where one of several plaintiffs or defendants dies and right to sue survives.--- Where there are more plaintiffs or defendants than one, and any of them dies, and where the right to sue survives to the surviving plaintiff or plaintiffs alone, or against the surviving defendant or defendants 'alone, the Court shall cause an entry to that effect to be made on the record and the suit shall proceed to be made on the record and the suit shall proceed at the instance of the surviving plaintiff or plaintiffs, or against the surviving defendant or defendants."
8. But what is the "right to sue" which survives the death? The survivability of a right to sue or a cause of action has been a subject of comment among the jurists. In American Jurisprudence Second Edition survivable actions have been explained as follows:-- "At common law the basic principle of survivability is that survivable actions are those in which the wrong complained of affects principally property and property rights, and in which any injury to the person is incidental, whereas non-survivable actions are those in which the injury complained of is to the person and any effect on property or property rights is incidental. Underlying the distinction is the thought that the reason for redressing purely personal wrongs ceases to exist either when the person injured cannot be benefited by a recovery or when the person inflicting the injury cannot be punished, whereas, since the property or estate of the injured person passes to his personal representatives, a cause of action for injury done to the property or estate can achieve its purpose as well after the death of the owner as before. The common law principle expressed in the maxim, "action personal is mortar cum persona", has never been a favorite with the Courts, and exceptions were engrafted on it even before the statutory changes. Nevertheless, the common law relating to survival of causes still prevails, except as it has been changed or modified by statute or constitutional provision, although survival statutes have progressively, in varying degrees, enlarged the area in which causes of action survive the death of a party. In many jurisdictions there remain varying areas in which the restrictive precepts of the common law are still applicable, by reason of the limited scope of the statutory expansion of survivability, or by reason of exceptions engrafted on comprehensive statutes. But by statute or Court decision it has become the generally, if not the universally, accepted doctrine that in addition to the choses ex contract recognized at common law, causes of action arising from torts to real and personal property survive and pass to the personal representative as assets in his hands, while torts purely personal do not survive in the absence of statutory provision."
9. Thus, irrespective of the nature of proceedings whether criminal or civil, it is the nature of cause of action which determines its survivability. In Said Dass v. Devi Dass and others AIR 1973 Jammu and Kashmir 70, it was ruled that the death of plaintiff one day before the judgment at the appellate stage when the trial Court had passed an ejectment order in his favor would not abate the suit. In Bondada Gajapathi Rao v. State of Andhra Pradesh AIR 1964 SC 1645, the Court drew a distinction between appeal against the sentence of fine and appeal against the sentence of imprisonment if the appellant dies and came to the conclusion as follows:-- "But where the appeal is against sentence of fine, the appeal may be permitted to be continued by the legal representatives of the deceased appellant accused. There is no provision making such appeals abate. If they can be continued when arising under the Code, there is no reason why they should not be continued when arising under the Constitution. If revision petitions may be allowed so should appeals, for between them no distinction in principle is possible for the purpose of continuance. The principle on which the hearing of a proceeding may be continued after the death of an accused would appear to be the effect of the sentence on his property in the hands of his legal representatives. If the sentence affects that property, the legal representatives can be said to be interested in the proceeding and allowed to continue it.
' But where the sentence is not one of fine but of imprisonment, which on the death of the accused becomes infructuous, the sentence does not affect the property of the deceased-accused in the hands of his legal representatives, and therefore, the appeal, in such a case, would abate, upon the death of the accused."
10. Coming to the facts of the instant case, we note that the predecessor-in-interest of the petitioners was seeking enforcement of his service/civil rights. The Punjab Labour Court No,IV having considered the entire evidence led during the departmental proceedings set aside the order of dismissal from service and reinstated him. It was the Appellate Court which set aside the judgment of the Labour Court vide order, dated 2-5-2002 and the same had been challenged through the constitutional petition. If the constitutional petition had been allowed, the order of the Punjab Labour Tribunal would have been set aside and that of the Punjab Labour Court No,IV reinstating petitioners' predecessorin-interest would have been restored and in that eventuality even after his death, the legal heirs would have inherited the pensioner benefits. In these circumstances, the writ petition could not have abated and the legal heirs had a right to be impleaded as a party and to pray for a decision on merit.
11. For what has been discussed above, this petition is converted into appeal and allowed. The impugned judgment, dated 9-3-2005 passed by the learned Lahore High Court is set aside. The constitutional petition shall be deemed to be pending and decided on merit after impleading the legal heirs as party.