1. NASIM HASAN SHAH, J. This petition for leave to appeal is directed against the judgment dated 28- 4-1976 passed by a learned Single Judge of the Lahore High Court in Regular Second Appeal No, 307 of 1974.
2. The facts of the case have been given in full detail in the judgment of the High Court. The only question which calls for determination by this Court is whether the High Court was right in holding that the suit of the petitioner had abated and that there was no sufficient cause for setting aside the abatement. The facts relevant to this issue are briefly as follows; The petitioner Lai Din had brought a suit for declaration on 21-3-1968 and permanent injunction in the Court of Civil Judge, Muzaffargarh.
3. During the pendency of the suit, sometime in December, 1978, two defendants (Ghulam Rasul and hlst. Fatima) died. An application under Order XXII, rule 4, C. P. C. For bringing the Legal Representatives of the two deceased persons on the record was instituted on 2-5-1969. Alongwith this application the plaintiff'/petitioner also submitted an application under section 5 of the Limitation Act for condonation of delay in filing the application to bring the Legal Representatives of the deceased on record. This application was contested by the opposite-party which led to the framing of inter alia the following issue :----
(1) Whether the plaintiff is entitled to extension of period of limitation for bringing the Legal Representatives of the deceased defendants Nos. 5 and 6 on record, if so, who are the Legal Representatives ?
4. The application for appointment of the Legal Representatives of the deceased was dismissed by the learned Civil Judge by his order dated 7-2-1972. This order was not challenged by the petitioner in appeal or revision. The contesting defendant, therefore, raised the objection that the suit had abated. The following issue was framed with respect to this issue :----- Whether the suit has abated, if so, to what extent ?
5. An interim order was passed on 8-4-1972 to the effect that this issue be kept pending and would be taken up with the other issues, framed on the merits. However, no finding was given on the issue regarding abatement of the suit. The other defendant (respondent herein), therefore, challenged the judgment and decree of the trial Court before the District Judge, who accepted the appeal vile his judgment dated 21-6-1974 and dismissed the suit as having abated in toto. A second appeal was therefore, filed by the petitioner in the Lahore High Court (R. S. A. 307/74) to challenge the above order. The learned Judge in the High Court held that the deceased defendants were necessary parties ; and should have been brought on the record. It was further noted that the interim order of the trial Court dated 7-2-1972 refusing to allow the Legal Representatives of defendants Nos. 5-6 to be brought on record as the application in that respect was time-barred was not challenged by the plaintiff by any appeal or revision and had, therefore, become final. To overcome this obstacle, the contention raised before the learned District Judge was that Ghulam Rasul and Mst. Fatima, defendants, were neither necessary nor proper parties and, therefore, the question of abatement did not arise, but the learned District Judge keeping in view the material on the record negatived this plea, holding that these two defendants were necessary parties. The learned Judge in the High Court fully agreed with this finding and was accordingly of the view that these two defendants should have been brought on record.
6. The learned counsel, to meet this situation, submitted that the application filed on 2-5-1969 by the petitioner to bring Legal Representatives of the defendants on the record, which was accompanied by an application under section 5 of the Limitation Act should have been treated as application for setting aside the abatement. The learned Judge observed that it is well---settled that after the expiry of period of 90 days of the death of the deceased the abatement is automatic. The application for setting aside the abatement can be made within 60 days and that this period can be extended under sections of the Limitation Act if sufficient cause exceeds for extension of time.
7. However the onus to establish such sufficient cause is on the petitioner but he has miserably failed to establish the same. The reason given for the delay, namely :----- was not found satisfactory. It was observed that the plea urged that he did not know whether the said Ghulam Rasul and Mst. Fatima deceased were also parties in this case was unbelievable. The further plea that although the (petitioner), lives in the same Chak where the deceased persons were living but he had no connection with them and that it was their counsel who used to appear in Court and they did not appear personally, therefore, he could not know about their death was also not accepted. It was observed that keeping in view the village life if a person dies in a village, the news of that death generally spreads in the whole village community like wild fire and is known practically to every one. If the petitioner and the deceased were living in the same Chak (namely, Chak No. 520) then it was not understandable how the petitioner did not come to know of the death of the deceased persons. The reasons given by the petitioner for setting aside of the abatement did not establish "sufficient cause" for condonation of delay. Hence the application for this purpose was rejected.
8. Sh. Abdul Rashid, learned Advocate for the petitioner, in support of this petition for leave to appeal, has again reiterated the contention that the deceased were not necessary parties and, therefore, the failure to implead them did not entail the abatement of the suit that in any case the application for abatement having been made within the period of 60 days after the expiry of 90 days of the death of the defendant which was duly accompanied by an application under section 5 of the Limitation Act, the suit was not liable to abatement.
9. The law is now well-settled that abatement is automatic after 90 days and the appeal or suit is dead unless the abatement is set aside within 60 day or any further period extended by aid of section 5 of the Limitation Act. In this case also the application for setting aside the abatement could, no doubt, to made within the period of 60 days of the abatement of the suit but this did not imply that the abatement was liable to be set aside automatically if the application was made within this time. At best, the application for setting aside the abatement could be deemed to be within time but the requirement to establish sufficient cause for not impleading Legal Representatives within the prescribed time of 90 days, was still to be established. The period of 60 days could even be extended if sufficient cause existed, by virtue of section 5 of the Limitation Act.
10. In the circumstances of this case it has been held after a survey of all the relevant facts that there was no reason why the application which was submitted on 2-5-1969 could not have been submitted within the time limited by law. We feel no compulsion in interfering with this finding. We also feel that this was not a fit case for setting aide the abatement.
11. The upshot is that this petition must fail and is dismissed hereby.