1. ' Mr. Abdul Fetch Memon for Interveners/Applicants Liaquat Ali and Muhammad Aslam in Misc.
2. No,231 of 1979, Mr. Kamaluddin appearing for legal representatives of the petitioner S.M.Askari deceased.
3. ' These are two applications filed by the Interveners/Applicants for review of my order, dated 20th January, 1979 in which I had allowed the Petition. The other Misc. Application 232 of 1979 is for stay.
4. ' I had allowed this Petition on 20th January, 1979. This Petition had been filed by late S.M.Askari on 21st December, 1972. Mr.Askari died on 21-5-1979 but the factum of his death was not brought to the notice of this Court and, therefore the impugned judgment was passed by me after hearing the counsel of the petitioner The applicants Liaquat and Aslam filed a review application on 7-5-1979 to the effect that the impugned judgment 20th January, 1979 may be reviewed after joining the applicants and then the Petition be reheard. The contention of the applicants was that they had purchased the property in dispute from respondent No,2 namely Syed Anis Hussain by a registered sale-deed dated 29th February, 1972 and that he had no knowledge of the pendency of this Petition. Notice of this application was sent in the name of the deceased petitioner but it was received by one of the L.Rs, and there after the L.Rs appeared.
5. ' After admitting the application for review I had been transferred to Federal Shariat Court and during my absence a Division Bench of this Court issued notice to Mr.Ali Ahmed Fazeel as amicus curiae for consideration of the question whether the main petition had abated in view of the fact that the sole petitioner in the case had died on 21-5-1978 and the Petition had been decided on 20th January, 1979 and during all this time no one had applied for being impleaded as L.Rs, of the petitioner within time of three months as prescribed under Article 176 of the Limitation Act.
6. ' Mr.Ali Ahmed Fazeel has submitted that there are two points that arise in this matter. One is extent of the application of the provisions of C.P.C. to Writ Petitions. In this respect he has submitted that the proceedings in this case were of a civil nature and, therefore, in the process of hearing of Petition in civil matters before the High Court the provisions of C.P.0 should be followed. He submitted that first ruling in this respect is PLD 1970 SC 1 Hussain Bux v. Settlement Commissioner where it was held that the proceedings under Article 98 (of the then Constitution) relating to a civil matter is a civil proceeding and that a civil proceeding in the Court of Civil Jurisdiction is covered by C.P.C. He also referred to 1971 SCMR 98 the case of Abdul Ghani v. Settlement Commissioner where the judgment of the High Court which had held that C.P.C. is applicable to writ proceedings was not interfered with and it was held that Order XXII of C.P.C. was applicable to writ proceedings and that the application for substitution was to be made within time prescribed. Mr.Fazeel also referred to PLD 1973 Lah. 809, 1981 SCMR 777, 1983 CLC 2565 and PLD 1983 SC 63 which are all to the effect that provisions of Order XXII are applicable to the writ proceedings. Consequently there is no doubt left at all that the provisions' of C.P.C. and particularly the provisions of Order, XXII of C.P.C. are applicable to the proceedings in the extraordinary jurisdiction of the High Court provided the matter is of a civil nature.
7. ' Mr.Fazeel then argued that the amendment made in 1972 in Order, XXII by addition of sub-rule (2) in rule 3 entitles the Court to proceed with the hearing of a suit and pass any Order, and pronounce judgment notwithstanding the death of plaintiff in that suit and that any such Order, or judgment will have the same force and effect as if it had been pronounced before the death took place. The provisions introduced in this sub-rule are quite clear in their effect and they have thus changed entire previous law on the subject. Previous to this if an application for substitution of the L.Rs, in place of the deceased/plaintiff had not been made within prescribed time of 90 days then the suit abated. But this amendment has now made the death of the plaintiff as of no consequence and therefore, a judgment and decree can be passed in spite of death of plaintiff. In this respect Mr.Fazeel referred PLD 1975 Lah. 79 where the amendments introduced in 1972 in rule 3 were considered and it was held that the effect of the amended provisions of Order XXII, rule 3(2) was that the abatement after the death of a party would not take place even if his L.Rs, have not been brought on record within the time prescribed. In PLD 1977 Lah 381 it was held that in view of the amendments made in Order XXII, rule 3(2) the L.Rs, of a deceased plaintiff can be brought on record even at any stage. In 1980 CLC 1036 it was held that the effect of amendment in Order XX11, rule 3(2) was that the suit could now be proceeded with as if the plaintiff had not died. In NLR (1980) 292 it was held that since no penalty has been prescribed for non-filing of the list of L.Rs, as provided in Order VII, rule 26, therefore it may be treated as a rule of convenience and, therefore, the petition would not abate in case the Petitioner had died and the L.Rs had not been brought on record within time.
8. ' In the High Court of Sind there is a penalty prescribed for the failure to file address for service by the plaintiff in Order VII, rule 21 and the suit is liable to be dismissed on that account but even in the High Court of Sind there is no penalty prescribed for non-filing of the list of L.Rs, of the plaintiff as required in Order VII, rule 26 of C.P.C., and, therefore, this is a directory provision and a convenient provision but it does not mean that in case where the list of L.Rs, is not filed then the effect should be that either the suit could be dismissed or that in case of death of the plaintiff the failure of the L.Rs, to get them impleaded within time would mean abatement of the suit.
9. The policy of the law clearly shown in Order XXII, rule 3(2) is that the death of a plaintiff during pendency of the suit is not of any consequence and the suit can be proceeded with and judgment or Order pronounced notwithstanding the death of such plaintiff. The law-makers have made it further clear that the Order or judgment pronounced in such case will have the same force or effect as if it had been made or pronounced before the death took place. Therefore, the Order or B judgment made after the death of the plaintiff has the same force of law as if it had been made in his life. Rule 3 of Order XXII, however, makes a clear provision that the L.Rs, can be made parties to the suit on an application made in that behalf or on receipt of intimation of death of such plaintiff.
10. ' The net result is that the death of the Petitioner in this Petition on 21-5-1978 was of no consequence as far as the maintainability of the Petition was concerned and the same had not abated and, therefore, Order could be made by me on 20th January, 1979.
11. ' The next point for consideration is whether the applicants Liaquat and Aslam's applications for review should be entertained or not. These two applicants had purchased the disputed property from respondent S.Anis Hussain before this Petition had been filed by the Petitioner and, therefore evidently these applicants had some rights in the property and hence they had right to be heard before petition was granted. Since the respondent Anis had not cared to defend the Petition therefore, it was never brought to the notice of this Court that Liaquat and Aslam had any interest in the property, had hence the Petition was decided against the respondent Anis and in the absence of Liaquat and Aslam. The decision in the Petition has affected the right of Liaquat and Aslam without their case having been heard and, therefore, the decision in this Petition made on 20th January, 1979 cannot bind Liaquat and Aslam as they were not heard. Mr.Kamaluddin has not been able to contend that this is not the correct position. In fact in 1971 SCNIR 98 in the case of Abdul Ghani v. Settlement Commissioner the Supreme Court had observed that the transferees of evacuee properties are necessary party to those proceeding in respect of the properties trans - ferred to them. Similarly the applicants Liaquat and Astern being the transferees of the disputed properties from respondent Anis before filing of this Petition, were a necessary party and, therefore, my judgment dated 20th January, 1979 cannot be binding upon them as they were never a party in this Petition. I therefore, recall my Order passed on 20-1-1979 and allow the applicants Liaquat and Aslam to be impleaded as respondents in this Petition. Liaquat and Aslam claim to be in possession of the property in dispute and, therefore,' direct that the possession of Liaquat and Aslam in respect of this property will not be interfered with till the decision in this Petiton. Petition would be amended by the L.R.s of the deceased petitioner.
12. ' Mr.Kamlauddin is representing the L.Rs, of the deceased. He had filed an application on 4-11-1979 for impleading the L.Rs, as a party to the review application filed by Mr. Abdul Fateh Memon but the same was dismissed in default. However, it would be necessary to have the L.Rs, at S.M.Askari before us for hearing of the main Petition and, therefore, with the consent of Mr.Abdul Fetch Memon, counsel for Liaquat and Aslam I would allow the oral request of Mr.Kamaluddin to implead all the L.Rs, of the Petitioner in this Petition. Mr.Kamaluddin will file the amended Petition giving all the names of the L. Rs, of the deceased including the names mentioned by Mr.Abdul Fateh Memon in his objections within two weeks from this date. He will supply a copy of the amended Petition to Mr.Abdul Fateh Memon and Mr.Abdul Fetch Memon will file counter-affidavit. If any within two weeks thereafter. Notice of the amended Petition will also be issued to the present two respondents in the petition. Mr.Abdul Fateh Memon waives notice on behalf of Liaquat and Aslam. Miscellaneous Applications 231/79 and 232/79 are thus disposed of.
13. ' I express my gratitude to Mr.A.A.Fazeel Advocate for providing valuable assistance to this Court, as amicus curiae.
14. Petitioner accepted.