MUHAMMAD Au SAYEED, J.--This appeal under clause 10 of the High Court of West Pakistan Letters Patent is directed against an order dated 25th of April 1966 passed by a learned Single Judge of this Court dismissing a petition under Article 98 of the Constitution of Pakistan, 1962, brought by the present appellant to question the orders passed, by the Settlement Authorities depriving the appellant of an 'annexe' to a residential building which had been transferred to him by the Deputy Settlement Commissioner. This appeal was admitted to regular hearing on the 1st of July 1966.
During the pendency of the appeal, respondent No, 3, Sufaid Khan, died on 10th July 1968. No action was taken by the appellant to bring the legal representatives of deceased Sufaid Khan on record until 17th of January 1969 on which date the appellant presented an application, under Order XXII, rule 4 read with section 151, C. P. C. praying that the persons shown by him in the application as legal representatives of Sufaid Khan be joined in place of the deceased. An affidavit filed in support of the aforesaid application merely recited that Sufaid Khan, respondent No, 3 had died on 10th July 1968 and had left behind the heirs and legal representatives disclosed in the affidavit. If the provisions of Article 171 of the Limitation Act were to apply, the aforesaid application, filed as it was 201 days after the death of the respondent, was obviously barred by time. However, on the 3rd of February 1969 an order was passed allowing the appellant to implead the legal representatives subject to all just exceptions.
2. On the 14th of November 1969 respondent No, 2, Munir Khan, a co-transferee of the disputed property, presented an application under section 151 read with Order XXII, rule 4(3) of the C. P. C. stating that the appellant was residing in the same property as was deceased Sufaid Khan at the time of the latter's death, that the appellant had actually participated in the funeral ceremonies of the deceased and despite his knowledge of Sufaid Khan's death the appellant had not moved the application under Order XXII, rule 4(1) within the prescribed time. In these circumstances, it was contended, the appeal had abated. An order from this Court was sought on this preliminary point.
Respondent Munir Khan supported his application by an affidavit which swore the contents of the application. The appeal thus came up before us for disposal of Munir Khan's application after due notice of it to the appellant.
3. The fact that the application to join the legal representatives of Sufaid Khan was filed 201 days after his death is not in contest. There is, however, not even an attempt on the part of the appellant to explain this extraordinary delay. The application that was filed on his behalf on 17th of January 1969 to bring the legal representatives on record merely stated the fact of Sufaid Khan's death on 10th July 1968 and set out the names of the legal representatives with a prayer that they may be impleaded as respondents in the place of the deceased. The affidavit filed by the appellant in support of this application was even more terse and no explanation was offered for the obvious delay in making the application. The appellant also failed to apply for an order setting aside the abatement and for condonation of the delay in moving the Court for the purpose. What is more significant is that the appellant has not even felt it nccessary to counter the statement on oath of respondent Munir Khan that the appellant had gained knowledge of the death of Sufaid Khan on the very day Sufaid Khan had died and had participated in the funeral ceremonies of the deceased. When questioned in Court, learned counsel for the appellant gave an extremely vague and unsatisfactory explanation for the delay by stating that the appellant was not in Lahore during the relevant period. The period during which the appellant was alleged to have been away could not, however, be conveyed to us with any degree of precision by the learned counsel. On these facts we would hold that the appellant had failed to offer any explanation, much less a plausible explanation, for the delay in making his application to bring the legal representatives of Sufaid Khan on record.
4. Counsel, however, contended that failure of the appellant to take the necessary steps under Order XXII, rule 4, C. P. C. within the period prescribed therefor by Articles 176, 177 and 171 of the Limitation Act did not operate to bring about an abatement of an appeal brought under clause 10 of the High Court of West Pakistan Letters Patent. This argument, more expressly stated, was :
(i) That the present appeal being an appeal against an order passed in the exercise of the Constitutional Jurisdiction under .Article 98 of the Constitution, to which jurisdiction the provisions of the Civil Procedure Code had no application, the powers of this Court are no more than those possessed by the Single Judge.
(ii)That even on the strength of section 141, C. P. C. only those provisions of Order XXII of the Civil Procedure Code could be made applicable which did not spell out penal consequences, but were purely procedural in nature.
(iii)That the provisions of the Civil Procedure Code had no application to this Court in the exercise of its jurisdiction conferred by the Letters Patent.
5. The first two contentions can conveniently be dealt with together. The argument that the provisions of the Civil Procedure Code had no application to the exercise of Constitutional Jurisdiction of the High Court proceeded on the premises that the High Court was not acting as a Court of Civil Jurisdiction while dealing with petitions under Article 98 of the Constitution. If indeed this was the sole criterion which would attract the provisions of the Civil Procedure Code we would perhaps have had no hesitation in agreeing with counsel. But this question has now been set at rest by the decision of the Supreme Court in Hussain Bakhsh v. Settlement Commissioner. This was a case in which the power of the High Court to review an order passed under Article 98 of the Constitution had come up for consideration. It was contended in the case that the Code of Civil1 Procedure did not envisage any jurisdiction of the High Court other than its Original Civil and Civil Appellate Jurisdiction and the Writ Jurisdiction being wholly a new one conferred by the Constitution, was to be regulated not by the provisions of the Code but by the rules of procedure which the High Court was empowered to frame under Article 101 of the Constitution. This argument was repelled by their Lordships by observing that the Civil Procedure Code regulated civil proceedings and the nature of a proceeding did not necessarily depend on the nature of the jurisdiction of the Court that was invoked. In other words, if a proceeding was a civil proceeding in a Court then the provisions of the Code, unless excepted, will apply regardless of the nature of jurisdiction exercised by the Court. Their Lordships went on to hold that a petition under Article 98 of the Constitution for enforcement of a civil right was pre-eminently a civil proceeding and so attracted the provi-sions of the Code of Civil Procedure. On these premises the High Court was held to be possessed of the power under section 114, C. P. C. to review its own decisions made on petitions under Article 98 of the Constitution. It should be observed that the conclusion reached by their Lordships of the Supreme Court in the case cited above had no express reference to section 141 of the Code which lays down that the procedure provided in the Code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction.
6. The point of interest which emerges from the foregoing decision of the Supreme Court is that a provision of the Code which confers a substantive right, like the right to a review of a decision, has been held to be available by reason of the provisions of the Code applying to all civil proceedings.
It is here that we come now to consider the second limb of the appellant's three-fold contentions. It will be recalled that appellant's second contention was that even on the strength of section 141, C. P.
C. only those provisions of the Code will apply which were purely procedural and did not spell out penal consequences. Reliance was placed on a Division Bench decision of this Court in the case of Chand v. Abdul Ghaffar. This was a case in which a question similar to the one presently involved had come up for consideration and the argument presented was that by virtue of section 141 of the Civil Procedure Code, all the provisions of Order XXII of the Code had become applicable to writ petitions. However, their Lordships approach to the construction of section 141, C. P. C. was that at best the enabling provisions of the Code were applicable to the trial of writ petitions but not those which lay down penalties for failure to comply with those provisions. A principle which appears to have influenced their Lordships in reaching the above conclusion was that substantive provisions of the Code, as for instance, the right of appeal under sections 96 and 100, C. P. C., and the power to review under Order XLVII, rule 1 were not within the contemplation of section 141, C. P. C. In so far as the power to review is concerned we have already observed that this power has been held by the Supreme Court to be available to the High Court in relation to orders passed in the exercise of its constitutional jurisdiction under Article 98. But it seems to us that the problem is yet not free from difficulty. A right of appeal is not the same thing as a power of review. The language of section 96 as well as of section 100 of the Code which provide for First and Second Appeals respectively leaves no manner of doubt that whilst appeals are as of right, the provision with regard to 'review' is in the nature of a 'power' given to the Court to alter or to correct its orders or judgments, under certain circumstances. Both, section 96 and section 100 of the Code, while providing for an appeal state that "an appeal shall lie . . .." while section 114 of the Code merely enables the Court to entertain applications for review in stated circumstances and empowers the Court to make such orders thereon as it thinks fit. Strictly speaking, the power of review is more in the nature of an enabling provision although in its juxta position with the right of appeal it may, in a sense, be considered as a substantive right.
7. The question, however, which arises for consideration is whether penal provisions of the Code also have application to all civil proceedings to which the provisions of the Code may be applied?
In order to be able to answer this question it seems necessary to address ourselves briefly to the2 context in which the penal provisions have been set out in the Code. Rule 2 of Order IX, for example, empowers the Court to make an order dismissing the suit where it is found that the summons had not been served on the defendant in consequence of the failure of the plaintiff to pay the court-fee or postal charges (if any) chargeable for such service. A similar power to dismiss the suit arises where, after a summons has been issued to the defendant and returned unserved the plaintiff fails for a period of three months to apply for issue of a fresh summons. There are other provisions in Order IX of the Code which confer plenary powers on the Court to shut out a defaulting party from prosecuting or defending an action. Rule 2 of Order XIII excludes a party from producing documentary evidence in its possession which should hive been but has not been produced at the first hearing of the suit. The provisions of Order XXII of the Code make it incumbent on a party interested in prosecuting a suit or an appeal to apply for an order impleading the legal representatives of a deceased party where certain conditions with regard to the right to sue are satisfied. As in the case of other provisions of the Code, a time limit has been set down for applying for an order to join the legal representatives of a deceased party. Under Articles 176 and 177 of the Limitation Act such an application has to be made within 90 days of the date of death of the deceased party. The consequence of failure to make the requisite application within the time limited by law is that if the deceased is the plaintiff the suit will abate in so far as the deceased plaintiff is concerned. If, however, the deceased is a single defendant and the right to sue survives, the suit will abate as against the deceased defendant.
8. It will be noticed that in the statutory provisions of the Code cited above a default or delay in the performance of certain acts and in the taking of certain steps is attended with penal consequences, which tend to foreclose the right of the defaulting party to prosecute or to defend that action as the case may be. The object of incorporating the above penal provisions is fairly obvious. These provisions, it would seem, are primarily designed to ensure that all steps essential for a speedy disposal of a case and effective dispensation of justice are promptly taken with due diligence and dispatch. One means of ensuring this result is to visit levity in respect thereto with penal consequences. It is, however, true that any law embodying punitive provisions must be clear in its application to attract the penalties. It was wholly in recognition of this principle that a Division Bench of this Court in the case of Chand v. Abdul Ghaffar held that section 141 of the Civil Procedure Code cannot be construed as warranting the application of the penal provisions of the Code to proceedings not directly regulated by the Code. This opinion of the learned Bench was expressed in relation to the application of the provisions of Order XXII to Writ Petitions. We have, however, seen that the Supreme Court has now held, in the case of Hussain Bakhsh v. Settlement Commissioner, that the substantive provisions of the Code would apply to proceedings under Article 98 of the Constitution of 1962 by virtue of the said proceedings being in the nature of civil proceedings for the recovery of civil rights. Nonetheless this finding of the Supreme Court can hardly furnish a warrant for deducing that the penal provisions of the Code also have application to each and every civil proceeding. The juristic concept of penalties and forfeitures is vastly different from that of substantive rights. While the latter enure to the benefit of the subject the former operate to his detriment. There are few rules more firmly established than the rule that a law which operates to the detriment of a subject should be clear in its application. The penalties spelt out by c it cannot be left to deductions or to a process of extended application upon vague principles or analogies.
There seems to be no doubt that whilst the purely procedural provisions of the Code and, in appropriate cases, the substantive provisions may be applied to all civil proceedings in Courts of law, the penal provisions thereof will only be applied to proceedings to which the Code is clearly applicable.
9. This then brings us to the question whether the Civil Procedure Code and more particularly the provisions of Order XXII thereof are applicable to appeals filed under the High Court's Letters Patent.
The contention of the learned counsel for the appellant firstly was that a Letters Patent Appeal was not an appeal under the Code and hence its provisions had no application to such appeals. It was, secondly, contended that an appeal under the Letters Patent was not an appeal strictu sensu but a proceeding akin to the exercise of review jurisdiction by a larger bench of the same Court.
10.As regards the first contention the answer obviously is that the Civil Procedure Code seeks to regulate the procedure in relation to civil proceedings brought before the Court. It lays down the procedure that the Court will follow in the exercise of its civil jurisdiction. The law under which that jurisdiction is conferred is of no relevance in determining its application unless its exclusion is express or by necessary implication. To quote Viscount Haldane L. C. in the case of National Telephone Co. Ltd. v. Postmaster-General: "When a question is stated to be referred to an established Court without more, it, in my opinion, imports that the ordinary incidents of the procedure of that Court are to attach. Moreover the issue in question was clinched as early back as 1921 by the Privy Council in the case of Sabitri Thakurain v. Sari and another when their Lordships observed that there was no reason why there should be any difference between the procedure of the High Court in matters coming under the Letters Patent and its procedure in other matters. The Code, according to their Lordships, was framed on the scheme of providing generally for the mode in which the High Court is to exercise its jurisdiction, whatever it may be. On this analysis the provisions of Order XLI of the Code were held by the Privy Council to be applicable to appeals under the Letters Patent.
11.The second contention of the learned counsel for the appellant was that Letters Patent appeals were not appeals in the strict sense of the term and therefore the provisions of Order XXII of the Code could not, by virtue of Rule 11, be held to apply to such appeals. Reliance was placed on a Division Bench case of this Court, Abdul Haq v. Saifur Rehman and others for the proposition that a Letters Patent appeal was merely an internal arrangement of the High Court to review its own decisions and that clause 10 of the Letters Patent could not construed as giving a litigant a substantive right of appeal. This judgment approved the view taken in an earlier judgment of this Court in Sheikh Muzaffar Din v. Mst. Allah Vasai and others. We, however, do not see how the above view can be relied upon as lending support to the applicant's case. The ratio of the two cases mentioned above simply is that clause 10 of the High Court of West Pakistan Letters Patent does not vest in the litigant a substantive right of appeal. But once the appeal is entertained, surely there must be some procedure to regulate its disposal. Our attention has not been directed to any provision which would, even by implication, exclude the application of the provision of the Code to such an appeal. On the other hand, a Letters Patent appeal has all along been considered as a normal appeal for the purposes of the Limitation Act--See Mckenzie & Co. Ltd. v. Ah Win.
Furthermore, we have already seen that the pro visions of Order XLI, rule 10 of the Code have been held by the Privy Council to be applicable to appeals under Letters Patent. Now Order XLI of the Code relates exclusively to appeals and had Letters Patent appeals not been appeals in the normal sense for the purpose of applying thereto the provisions of the C. P. C. the Privy Council would not have declared so in terms which admit of no vagueness. What is more significant is that rule 10 of Order XLI empowers the Court to require the appellant to furnish security for respondents costs and upon the failure of the appellant to do so within the directed time the Court is under a mandatory obligation to reject the appeal. A provisions so clear cut in its penal consequences has been held to be applicable to Letters Patent appeals. There must therefore be an extraordinary reason to exclude yet the provisions of Order XXII of the Code from their application to such appeals and none has been shown to us to exist. We are thus clearly of the view that the word `appeals' appearing in Rule 11 of Order XXII of the Code is intended to include within its scope appeals entertained under' clause 10 of the High Court of West Pakistan Letters Patent.
12, A further argument which the learned counsel for the appellant attempted to develop was that3 4 5 6 7 Letters Patent appeals would at best be governed only by Chapter I-C of Volume V of the Rules and Orders of the High Court of West Pakistan and that these rules do not provide for abatement of appeals. This argument, we must say, is fallacious to the extent of being absurd. Rules 1 to 4 of Chapter I-C, it seems to us, provide for the procedure to be followed in cases where a party has died after the passing of the decree or order of the lower Court and before the appeal is instituted -- a situation not specifically provided for in Order XXII of the Code. Rules 5 to 15 of the said Chapter I-C of the Rules and Orders lay down the formal procedure to be followed in bringing the legal representatives on record and in applications for setting aside abatements. Rule 16 provides that the foregoing rules shall apply to all proceedings of a civil nature, other than suits or appeals, to which Order XXII of the Code is applicable. In other words, the application of the provisions of Order XXII of the Code to appeals is sought to be protected by Rule 16 of Chapter I-C of the Rules and Orders.
13.In the end we would like to observe that the High Court is possessed of all necessary powers to ensure that an action brought before it is prosecuted with due diligence, that all steps essential for an effective disposal of a case are promptly taken and every matter that the court is seized of is and continues to remain to be properly constituted so that complete justice is possible to be done as between the parties. These precisely are the results that the so-called penal provisions of the Code are designed to achieve.
14.In the light of the foregoing discussion and in view of our finding that the provisions of Order XXII of the Code are applicable to appeals preferred under clause 10 of the High Court of West Pakistan, Letters Patent, we see no justification to overlook the extraordinary delay of 201 days in making the requisite application for bringing the legal representatives as respondent No, 3 on record, particularly so when the appellant did not even attempt to explain the delay or to apply for its condonation. In the result the appeal, in so far as the right to continue it against the surviving respondents alone does not survive, is held to have abated after the death of respondent No, 3 and struck off as such. There will, however in the circumstances of the case, be no order as to costs. PLD 1970 SC 1 PLD 1965 Lah. 596 (1913) A C 546 AIR 1921 P C 80 PLD 1968 Lab. 478 PLD 1953 Lah. 284 (1934) 12 Rang. 525