' The writ petition had been admitted to a full hearing on 14th January, 1965. On 5th May, 1969, it was found that J. Kingson, petitioner No, 9, Haji Abdur Rehman respondent No, 5 and Ch. Ahmad Bakhsh, respondent No, 9, had died and as such a direction had been issued to the petitioner's counsel to bring the legal representative of the deceased persons on record within a month. A letter was accordingly issued by the office to the petitioner's counsel on 19th May, 1969, but no compliance was made with the result that on 20th April, 1970, when the case came up before the Court, it directed that the names of the said deceased persons shall be deleted and the writ petition shall proceed between the remaining petitioners and respondents, if it is still maintainable" Ali Muhammad respondent No, 2, Muhammad Aslam and Muhammad Akram respondents at No, 4, and Yasin Khan petitioner No, 2 also died since. The following applications have now been moved :- ' C. M. No, 1241/71 has been filed on 29th March, 1971 under section 151, C. P. C. For inclusion of the name of J. Kingston petitioner No, 9, who is stated to be alive, and for impleading the legal representatives of Abdul Rehman respondent No, 5 and of Ch. Ahmad Bakhsh respondent No, 9.
' C. M. No, 1240/71 has been filed under section 5 of the Limitation Act for condonation of delay in moving the above application.
' C. M. No, 2131/72 has been filed on 23rd May, 1972 under Order XXII, rule 3. C. P. C. For impleading some of the legal representatives of Yasin Khan petitioner No, 2 who died on 25th February. 1972, ' C. M. No, 2202/73 has been filed on 4th June, 1973 under section 151 read with Order XXII, rule 3, C. P.
C. For impleading other legal representatives of Yasin Khan, petitioner No 2.
' C. M. No, 2133/72 has been filed on 23rd May, 1972 under Order XXII, rule 9 read with section 151. C. P.
C. For setting aside the abatement and for impleading the legal representatives of Ali Muhammad respondent No, 2 who died on 25th May, 1971.
' C. M. No, 2132/72 has been filed under section 3 of the Limitation Act for condonation of delay in moving the above application.
' C. M. No, 1860/73 has been filed on 11th May, 1973 under Order XXII, rule 4, C. P. C. For impleading the legal representatives of Muhammad Aslam and Muhammad Akram respondents at No, 4 who died on 8th May, 1969 and 20th September, 1970, respectively.
' C. M. No, 1853/73 has been filed under section 5 of the Limitation Act for condonation of delay in the above application.
' C. M. No, 2146/73 has been filed under section 151, P. C. For dismissing the writ petition as having abated in toto.
' Before proceeding to dispose of the applications individually, I may deal with a number of common points raised during the hearing of the arguments-
2. It was contended by Mr. Ejaz Hussain that no question of abatement could arise in view of the Law Reforms Ordinance (No, XII of 1972). New provisions were substituted by this Ordinance for sub- rule (2) of rule 3 and sub-rule (3) of rule 4 and rule 9 of Order XXII, C. P. C. The effect of the amendment is that even if no application is made for impleading the legal representatives of a deceased plaintiff or defendant, the Court may proceed with the suit and make order or pronounce judgment which will have the same force and effect as if it had been made or pronounced before the death took place, and that the legal representative may apply to the Court for setting aside the order made or judgment pronounced in his absence if it is proved that he was prevented by any sufficient cause from continuing or defending the suit and the Court shall set aside the order or the judgment upon such terms as to costs or otherwise as it thinks fit. There is nothing in the relevant provision of the Ordinance to give the same a retrospective effect.
Nevertheless, an alteration in the form of procedure alone is meant to operate retrospectively unless it touches upon some right already vested. Here the matter is not of a formal procedure.
Abatement gives rise to valuable rights. Where rights are involved no statute is to be construed so as to have a retrospective operation unless such a construction appears very clearly in the terms of the Act or arises by necessary implication. A right vested in a law is not affected by repeal of that law. The decisions in the case of The Colonial Sugar Refining Company, Limited v. Irving, (1905) Ltd. v. Income-tax Commissioner, Delhi and another may be referred to. According to Maxwell in his Interpretation of Statutes 4th Ed., p. 219, a new procedure would be presumable where its application would prejudice rights established under the old, or would involve a breach of faith between the parties. The same view has been consistently adopted by our Supreme Court as reflected in the decisions reported in States v. Maulvi Muhammad Jamil and others and Adnan Afzal v. Sher Afzal A similar contention that the provisions of the Ordinance was to operate retrospectively notwithstanding the abatement of the matter had been rejected by me in an earlier case in Writ Petition No, 592-R of 1965. The same view had been taken by my learned brother A. R.
Sheikh, J. In Ghulam Haider v. Rajbhari, R. S. A. No, 325 of 1966, decided on 22nd November, 1972. I see no reason to make a departure. The provision of the Ordinance cannot apply in case the writ petition had abated on or before 14th April, 1972 when the Ordinance had come into force.
3. The next contention, raised by Mr. Yunus Khan was that although the subject-matter of the present writ petition was of a civil nature, but it being a constitutional petition, the provision of the Civil Procedure was not applicable, and that consequently the provision of Order XXII could not be invoked. This contention is easily repelled by a reference to the rulings in Hussain Bakhsh v.
Settlement Commissioner etc., Mumtaz Ali v. Pakistan. Mukha etc. v. Rifat Pasha Sheikh etc. and1 2 3 4 5 6 Haji Abdul Karim v. Chief Settlement Commissioner. The latter two cited authorities are also to the effect that the provision of Order XXII applies to writ petitions.
4. It was then strenuously argued by both Mr. Ejaz Hussain and Mr. Younas Ali Khan that for the purposes of limitation. Article 181 of the Limitation Act. And not Articles 176 and 177, was applicable to a writ petition. Article 176 prescribes the time for impleading the legal representative of a deceased plaintiff for a deceased appellant. Article 177 likewise prescribes the time for bringing on record the legal representatives of a deceased defendant or of a deceased respondent. It was argued that the term "plaintiff" or "defendant" could be used only in respect of a suit and the term "appellant" or "respondent" in respect of an appeal arising from such suit and that the provision of these Articles does not cover a petitioner or a respondent in a writ petition. It was submitted that a writ petition not being a suit nor appeal from a suit. An application filed in writ proceeding for impleading legal representatives of a deceased petitioner or respondent would not be governed by Article 176 or 177 but by Article 181 which provided and which allows a period of three years from the time when a right to apply accrues. Unfortunately, the recent authorities do not support the contention. In Mukha's case a respondent, namely, Allah Ditta had died on 19th October, 1969 and the application for impleading his legal representatives had been filed on 9th March, 1972 which was within three years. Similarly, Hasan petitioner therein had died on 20th June, 1971 and the application for bringing his legal representatives had been filed in 1972. These applications alongwith others had been rejected by the High Court, and the writ petition had been dismissed as having abated. This decision of the High Court had been duly upheld by the Supreme Court. In another case Muhammad Khan v. Muhammad Ali Khan their Lordships of the Supreme Court had similarly upheld the decision of the High Court in writ proceedings, rejecting an application filed after two years from the death of the respondent and had held that "the application for impleading the legal representatives of Muhammad Ali was, therefore, clearly barred by time and rightly dismissed. In holding so, their Lordships had also observed : "Even otherwise, the time prescribed by law started to run from the death of Muhammad Ali and not from the knowledge of the petitioner". This observation is relevant only to Articles 176, 177 and not to Article 181 where time commences, from "when the, right to apply accrues." In the case of Haji Abdul Karim the Division Bench had been specific on this point when it held :- "This being the law declared, a writ petition or Letters Patent Appeal arising from a writ petition will abate under Order XXII, C. P. C. If an application of substitution of the legal representatives is not made within 90 days under Article 177 of the Limitation Act."
In view of these valid and binding authorities, the points raised are no longer open to a decision by this Court, therefore, I hold that the applications where the abatement had taken place before the 14th of April, 1972 i. e. Before the coming into force of Ordinance XII o D 1972, are to be decided in the light of the old provision of Order XXII, C. P. C. And of Articles .176 and 177 for impleading ,the legal representatives and Article 171 of the Limitation Act for setting aside the abatement. I will now take up the applications individually.
[C. M. No, 1241/71 with C. M. No, 1240/71 for condonation' of delay.]
5. This application was filed by the writ petitioner on 29th March, 1971 under section 151 of the Civil Procedure Code "for the inclusion of the name of petitioner No, 9 and the names of the legal represen tatives of respondents Nos. 5 and 9 on record." The dates of thei death have not been given in the application. Respondent No, 5 Abdul Rehman had admittedly died on 12th January, 1966. The date of the death of Ch. Ahmad Bakhsh respondent No,
9. Has not been furnished even subsequently. The application in the case of respondent No, 5 has been filed five years after the writ petition had abated qua him. As the factum of the death of respondent No,9 had been noted in the proceeding sheet of 5th May, 1969, it has to be presumed that he had died before that date with the result that the writ petition had also7 8 abated as against respondent No 9. It is strange that no application for setting aside the abatement has been filed nor has any such prayer been included in the present application. The application itself is under section 151 of the Civil Procedure Code although there is express provision under Order XXII, rule 4, C. P. C., for the purpose. It was held F by a Division Bench in Karamatullah v.
Government of West Pakistan.
"There is abundant authority for the propositions that section 151 does not apply where there is express provision in the Code dealing with the particular matter."
' There is also no application or prayer for setting aside the abatement. The application is simply for impleading the legal representatives of respondents Nos. 5 and 9. There being no prayer for setting aside the abatement, the filing of the application under section 5 of the Limitation Act is of no help because that section is not applicable to an application for impleading legal representatives of a deceased respondent vide Haji Dad Shah etc. v. Muhammad Fazal etc. It was held in Janakinath Singha Ray v. Nirodbaran Ray and others: "That inasmuch as in application for substitution filed in December, 1920, no dates were given of the death of the defendant, nor when the plaintiff came to know of it, nor were any grounds given entitling the plaintiff to an extension of the period of limitation the application for substitution could not be treated as an application for setting aside the abatement under Order XXII, rule 9. Hence the application for setting aside the abatement was barred by time."
' In the case of Haji Abdul Karim it has been observed.
"An application for impleading the representatives can be made only before the appeal abates.
The application of the appellant (C. M. 4122 of 1967) was moved when the appeal had already abated and consequently the order of the Court in this application permitting to implead the legal representatives was a nullity and did not exist in the eye of law."
' The present application also suffers from similar infirmities. The dates of death of deceased respondents have not been given, nor has sufficient cause been shown for condoning the delay. It is admitted that counsel for the applicants had received direction of the Court on 19th May, 1969 for taking immediate steps to have the legal representatives of the deceased respondents brought on record. All that has been said is that the applicants could not succeed in time in ascertaining the addresses of the legal representatives. The applications therefore fail. The writ petition stands abated against respondents Nos. 5 and 9.
[C. M. No, 2133/72 with C. M. 2132/72 for condonation of delay
6. This application was filed on 23rd May, 1972 under Order XXII rule 4 read with section 151, C. P. C.
For setting aside the abatement and for impleading the legal representatives of All Muhammad respondent No, 2, who died on 25th January, 1971. The application is accompanied with an application for condoning the delay. The abatement had taken place on or about 25th April, 1971.
The application should have been filed within 60 days. There is thus a delay of nearly eleven months in filing the application. The plea taken is that the applicants had no knowledge of the death of All Muhammad, respondent No,
2. This plea is not tenable because the death of respondent No, 2 had been noted by the Court in the proceeding-sheet of 25th March, 1971 and Mr. M. Younas Khan learned counsel for the applicants, had appeared on the next date, i. e., the 30th of March, 1971, and again on 31st March, 1971. It has to be presumed on the basis of the record that the death had come to the knowledge of the applicants through their counsel. There is thus no sufficient cause for condoning the delay. The applications fail and are accordingly rejected. The result is that the writ petition as against respondent No, 2. stands abated.
[C. M. No, 1860/73 with C. M. No, 1853/73 for condonation of delay]
7. The application was filed on 11th May, 1973 under Order XXII, rule 4 of the Civil Procedure Code for substitution of legal representatives of Muhammad Aslam and Muhammad Akram respondents at9 10 11 No, 4 deceased Muhammad Aslam had died on 8th May, 1968 and Muhammad Akram on 20th September, 1970. The application was, therefore, filed long after the abatement of the matter. The plea taken in the application for condonation of delay is that the applicants had come to know of the deaths of the two respondents on 9th May, 1973 for the first time. This assertion is contradicted by the record because the deaths of the two respondents had been duly noted in the proceeding sheet of 25th March, 1971 and 31st March, 1971. On the letter date. Mr. M. Younas Khan, counsel for the applicants, had himself appeared in Court. There is also no application or prayer for setting aside the abatement. In these circumstances, the application for impleading the legal representatives only, is thus rejected. The writ petition. Thus stands abated as against these deceased respondents also.
(C. M. No, 2146/73)
8. In view of the above, I may now advert 'to the application (C. M. No, 2146/73) wherein it has been prayed that the writ petition be dismissed as having abated in toto. It appears that the disputed..
Property bearing No, S. 19-R-61 and S. 19-R-65 known as Chopra Building, 54, The Mall, Lahore, had been disposed of in three portions i,e,, (1) S-19-R-61, (ii) S-19-R-65 from Hopson & Co. To S. Rollo Photographers and (iii) S. 19-R-65 from London House to Kashmir House (vide Annexures `C', `C-1' and `C-2'). The successful bidders had bid jointly in the auction of the property. The deceased respondents All Muhammad, Abdur Rehman, Aslam and Akram had been among the successful bidders in all those three bids. Since they had jointly bid with the other bidders and since the auction has been challenged in the present writ petition, the writ petition having abated against the said deceased respondents cannot proceed now against the other respondents. This is thus a case of total abatement. The application (C. M. No, 2146/73) is therefore allowed and the writ petition is held to have totally abated. There will be no order as to costs. AIR 1927 P. 6 242 ? PLD 1965 SC 187 PLD 1969 SC 681 PLD 1970 SC I PLD 1971 Lah. 395 1972 SCMR 514 PLD 1973 Lah. 325 1970 SC MR 50 PLD 1973 Lab. 325 PLD 1967 Lah. 171 PLD 1971 Quetta 69 AIR 1930 cal.