1. ' This is an applicantion under Order XXII, rule 3 and section 151,, C. P. C. Made by Advocate for L. Rs, of the petitioner for the L. Rs, being brought on the record. One of the L. Rs, namely, Abdul Ha'mid son of the late Chaudhry Abdul Rehman has filed affidavit in support of the application. .From the aforesaid affidavit and from the Memo of the main petition it is apparent that the interest of the petitioner in the subject matter continues as interest of the L. Rs, The application is being contested on behalf of the respondents 3 to 7 and in the counter affidavit filed on behalf of the aforesaid respondents it has been alleged that the deceased petitioner has married daughters in India whose names have been suppressed. It is further alleged that the material date of death of petitioner was not disclosed in the original application and it has been disclosed now that the petitioner died on 21st March, 1980 before the petition was admitted by order of this Court B on 22nd March, 1980. It is therefore argued that the provisions of Order XXII, rule 3, C. P. C. Do not apply as at the time there were no pending proceedings which could be continued by the L. Rs, of the petitioner.
2. ' It may at the outset be stated that in the affidavit in rejoinder the allegation about the petitioner having married daughters in India has been totally denied, and the allegation has been stated to be a "blatant lie". In any case, if some of the L. Rs, have not been mentioned in the list it is for the contesting respondents to state their names giving C particulars and details, and there appears to be no reason as to why the affidavit in support of the application mentioning the list of L. Rs, should not be believed.
3. ' The only other point to be considered at this stage is whether on the date of the death of the petitioner, namely, on 21st March, 1980 there were no proceedings pending which could be continued by the L. Rs, ' The learned Advocate for the applicants-L. Rs, has relied upon the decision of the Lahore High Court in Fajar Ali and others v. Mst. Jamila and others (1) on the point with regard to interpretation of the word 'pending'. It was observed in that decision as under :- "It is needless to point out that 'pending' means nothing more than `undecided' or 'waiting decision'."
4. It is apparent from a perusal of the record that the petitioner was alive at the time that the petition was presented in the Court, and further had filed an affidavit in support of the petition. It is true that at the time the order of admission of the petition was passed there was no intimation given or application made by his Advocate for the L Rs,, and it is quite conceivable that even the learned Advocate for the petitioner D did not know about the death of his client. On the principle stated in sub-rule (2) of rule 3 of Order XXII, C. P. C. No objection could be raised to the Court having preceded with the hearing of the petition by admitting it, notvyithstanding the death of the petitioner, as the petitioner was represented by his counsel before the Court. It is argued by Mr. Ismail Munshi, the learned counsel for the contesting respondents that in cases of writ petition the provisions of C. P.
5. C. As given in Order XXII, are not applicable. However, the application is not only purporting to be one under Order XXII, rule 3, C. P. C., but there is section 151, C.P.C. Also mentioned. The learned Counsel for the applicants has also relied on the decision of Lahore High Court in Chand and others v. Abdul Ghaffar and others
(2) in which the question of applicability of Order XXII to writ petitions was considered, and it was; however, held that omission to implead legal representatives of the deceased respondent did not result in abatement of the writ petition. It was further held that proceedings in writ, though in pari materia with suits under. Section 9 were more akin to section 115, C. P. C. Reference has also been made to the Lahore High Court decision in Rashid Ahmed and 8 others v. Muhammad Arshad (3) reported in which, although it was held that the {{FOOT NOTE}}
(1) PLD 1969 Lab. 545 (2) PLD 1965 Lah. 596
(3) PLD 1975 Lah. 1195 {{FOOT NOTE}} ' provisions of Order XXII, C. P. C. We're not applicable to cases of eviction of tenants under the Rent Restriction Ordinance, the proceedings did not abate on the death of petitioner or respondent, and that the Rent Controller's order dismissing ejectment petition on petitioner's death was not warranted by law. The principles of Order XXII, C. P. C., it was held, could be invoked as adoption of any procedure was permissible unless expressly prohibited. In the Supreme Court decision reported in 1981 SCMR 1169 it was observed that the law favours adjudication merits and not on technicalities.
6. ' The delay, if any, under the circumstances stated in the affidavit in support of the application, is understandable and is condoned. The L. Rs be brought on record and amended memo to be filed within two weeks of the announcement of this order.
7. ' In view of the orders having been reserved on application for joining L. Rs, no orders were passed on Miscellaneous No, 109 of 1980 which will be heard on the date to be fixed hereafter.