1. Heard the learned counsel appearing for the parties. Respondent filed Suit No. 558/1997 in this Court wherein the predecessor-in-interest of the appellants was cited as a defendant. The said defendant expired on '10.7.2001, during pendency of the said suit, whereafter his learned counsel moved an application bearing C.M.A. No. 685/2004, under Order XXII, Rule 4, C.P.C., on 9.2.2004, with a prayer that legal representatives of the said defendant be impleaded as defendants; such an application was accompanied with C.M.A. No. 3873/2004 praying therein to condone the delay in filing of the said application under Order XXII, Rule, 4, C.P.C.
2. A learned Single Judge heard both the applications and vide order dated 13.3.2006 dismissed the same. The relevant observations, as recorded in the said order, read as under:- "As to the reasons contained in the application for condonation of delay, learned counsel for the plaintiff Mr. Mamnoon Hassan, Advocate has stated that no reasonable ground has been shown.
3. He relied upon Messrs Ahan Saz Contractors v. Pak. Chromical Limited (1999 M LD 1781). In the said case, it was held that party seeking condonation of delay in filing suit for application was required to explain satisfactorily the delay of each and every day. In the present case the application was moved on 9.2.2004 whereas death took place on 10.7.2001 i.e. After an inordinate delay of about 29 months whereas Article 177 of the Limitation Act provides a period of only 90 days for moving such application. The only reason disclosed for seeking condonation of delay is unawareness of the pendency of this suit, which is not a plausible reason. Ignorance of the pendency of suit cannot be made ground for condonation of delay. It may be so that the legal heirs were not aware of the pendency of the suit but the law has made it mandatory for a party to a suit to file a list of his or her presumptive legal heirs so that in the event of death of a party, the Court can on its on motion send notice to the legal heirs at the address mentioned in the list. This would have taken care of situation where the legal heirs were not aware of the proceedings. Having not complied with the requirements of law, the legal heirs have to suffer the consequences provided under the law for the omission committed by their predecessor. Had there been a list of legal heirs filed with the written statement. I would have still condoned the delay in moving the application, as the names of the legal heirs in any case were already on the case file.
4. In such a situation it would have been just a mere formality to make them a party. This being not the case in the present case, the facts of the case reported in 1992 M LD 490 by learned counsel for the plaintiff are fully attracted to the present case and there is no other alternative left with this Court but to dismiss the listed applications.
5. Hence the legal representatives of the said deceased defendant have filed present High Court Appeal against the said order with a prayer to set aside the same and they may be afforded due opportunity to defend themselves in the above -stated suit by impleading them as defendants therein.
6. Learned counsel for the respondent has cited a number of precedents and has argued that the dictum laid down by the Hon'ble Supreme Court of Pakistan is to the effect that where a defendant of a suit expires during pendency of a suit and the concerned party fails to apply for impleading of his legal heirs as defendants within time limit of 90 days, and on expiry of such time limit if such a party fails to satisfactorily explain the delay so occurring in filing of such an application then he shall not be allowed to be impleaded as a defendant therein. Learned counsel has further argued that the appellants filed the applications after a very very long delay and no satisfactory explanation was put forward by them for such a long delay and that by stating that they were unaware of pendency of the said suit during lifetime of their (deceased) predecessor-in-interest and also after his death, would not suffice to say that satisfactory explanation, has come to the record of the suit so as to condone such a long delay of two years and eight months.
7. No doubt, it is a settled principle of law that in each every relevant case a party seeking condonation of the delay in pursuing the proceedings of a case has to satisfactorily explain delay of each and every day occurring against his pursuing of such proceedings. Yet, it is also a settled principle of law that wherever a prejudice is likely to cause to a party who is not afforded due opportunity to defend himself in the facts and circumstances of a peculiar case, and further that wherever the same essentially demand that the technicalities should not be allowed to serve as a obstacle in doing the full and complete/substantial justice, delay in pursuing the proceedings alone would not defeat the right of such a party in such a case.
8. The reliance has been placed on Muhammad Sadiq v. Muhammad Sakhi (PLD 1989 SC 755), WAPDA v. Muhammad Khalid (1991 SCM R 1765), Mst. Arshan BI and another v. Maula Bakhsh and others (2003 SCM R 318) and lmtiaz Ahmed v. Ghulam Ali and others (PLD 1963 SC 382) by learned counsel for the appellants.
9. We feel inclined to condone the delay in filing of the above-stated applications under Order XXII, Rule 4, C.P.C., with a view that the complete and full justice may be provided to the party who is ultimately found to have the same.
10. Under the circumstances, this High Court Appeal is hereby allowed. Impugned order passed by learned Single Judge is set aside, resulting both applications viz. One under Order XXII, Rule 4, C.P.C.
11. And the other under Section 5 of the Limitation Act are allowed, the order/judgment/decree which may have been passed by learned Single Judge in the above-stated suit against the appellants stand set aside with directions to the plaintiff/respondent to file amended memo. Of plaint in the suit, impleading the appellants as defendants therein for further to law. However, the appellants are hereby directed to pay cost amount of Rs. 50,000/- (Rupees Fifty. Thousand Only) to the plaintiff/respondent within a period of 90 days from this date.
12. H.C.A. Allowed.