' This apeal is directed against the judgment and decree of the District Judge, Muzaffarabad dated 17-2-1985 whereby he dismissed the appeal of the appellant against the judgment and decree of the Sub-Judge, Authmuqam dated 26-6-1982 on account of the same having abated.
2. The brief facts giving rise to this appeal are that Feroze Khan, whose legal representatives are respondents Nos.1 to 7, brought a suit for declaration and permanent injunction against the appellant in the Court of Sub-Judge, Authmuqam on 31-12-1980 in which it was prayed that a decree for declaration to the effect that their adverse possession on the suit land had matured into ownership, be passed and as a consequential relief the respondent-appellant be restrained from interfering in their possession over the same. The trial Court granted the decree as prayed for vide its judgment and decree dated 26-6-1982.
3. The appellant filed an appeal against the above judgment and decree of the trial Court before the District Judge, Muzaffarabad, during the pendency of which, Feroze Khan, respondent died. The appellant through her counsel made an application on 16-12-1982 for bringing the legal representatives of the said deceased-responclient on record but the same was resisted by one of the legal representatives of the deceased on the ground of its being time-barred as the said respondent had died on 10-9-1982. The learned District Judge, Muzaffarabad framed the following issues on 16-8-1983:-
(1) Whether Feroze Khan, respondent died on 10-9-1982; O.P.R.
(2) In case issue No.1 is proved in affirmative, whether the application for bringing legal heirs on record is liable to dismissal? O.P.D.
(3) In case the issue No.1 is proved in affirmative, whether the application for bringing legal heirs on record was within limitation. If so, How? O.P.P.
4. On the above issues the respondents adduced their evidence but the appellant did not lead any evidence despite the opportunity having been given to her and consequently the application for bringing the legal representatives on record was fixed for arguments on 30-4-1984. However, the arguments could not be heard for one reason or the other and on 17-10-1984, Mr.Nazir Ahmad, Advocate, counsel for the appellant made an application before the District Judge, Muzaffarabad for condonation of delay caused in filing the application for impleading the legal representatives of the deceased respondent on the ground that the appellant on 7-11-1982 had informed her previous counsel Mr. B.A. Farooqi, about the death of the said respondent and had also furnished him the particulars of his legal representatives but the said counsel due to his illness and that of his daughter, could not make an application for impleading legal representatives of the deceased- respondent on record with the period of limitation prescribed for the purpose.
5. The learned District Judge, after hearing the learned counsel for the parties, came to the conclusion that Feroze Khan, deceased had died on 10-9-1982 and the application of the appellant for bringing his legal representatives on record was filed beyond the period of limitation and that there was no sufficient cause for condonation of delay caused in filing the same and consequently vide its judgment and decree, dismissed the appeal as having abated on account of the legal representatives of the deceased-respondent having not been impleaded within the period of limitation prescribed for the purpose.
6. Feeling aggrieved by the above judgment and decree of the District Judge, Muzaffarabad, the appellant had filed this apppeal.
7. I have heard the learned counsel for the parties and have also gone through the record of the case. It has been contended by the learned counsel for the appellant that the appellant had in time furnished the necessary particulars of the legal representatives of Feroze Khan, deceased- respondent to his counsel Mr. B.A. Farooqi, for making an application for bringing the legal representatives of the said deceased-respondent on record but he (counsel) could not do so within the period of limitation due to his as well as his daughter's illness during that period and that the application for bringing the legal representatives of the deceased-respondent was filed by him only six days after the expiry of the period of limitation. It is, thus contended by him that in view of the above circumstances, the learned District Judge ought to have condoned the delay of only few days in filing the application for bringing the legal representatives of Feroze Khan, deceased- respondent on record and decided the appeal on merits after impleading the legal representatives of the said deceased-respondent and should not have dismissed it on the ground of its having abated.
8. On the other hand, it has been contended by the learned counsel for the respondents that firstly the application for condonation of delay was made about two years after the filing of the application for bringing the legal representatives of the deceased-respondent on record when the evidence of the parties on the issues framed on the aforesaid application was closed and it was fixed for arguments and secondly there is no evidence on the record to show that either the appellant had asked her counsel within the period of limitation to file an application for bringing legal representatives of the deceased-respondent on record or the counsel had failed to do so due to his as well as his daughter's illness. It is, thus contended by the learned counsel for the respondents that the Court below has rightly dismissed the appeal of the appellant as having abated due to non-impleading the legal representatives of the deceased-respondent.
9. After giving my due consideration to the above arguments of the learned counsel for the parties, I have come to the conclusion that there is no merit in this appeal which needs dismissal. There is no doubt and rather it is undisputed that Feroze Khan, respondent had died on 10-9-1982 and an application to bring his legal representatives was made beyond the period of limitation prescribed for the purpose on 16-12-1982. The entries in the copy of the Register of death maintained at Police Station, Authmuqam which is Exh.P.A., produced before the District Judge, go to prove that the said respondent had expired on 10-9-1982. Even the appellant had, in his application made for the condonation of delay caused in filing the application for bringing, legal representatives of Feroze Khan, deceased-respondent, on record, admitted that the delay of six days had occurred in filing the said application for bringing the legal representatives on record due to the illness of her counsel, Mr. B.A. Farooqi. The learned counsel for the appellant has also made similar submission before me that delay of six days in making the application for bringing the legal representatives of the deceased-respondent should have been excused by the learned District Judge in `view of the circumstances of the case. Thus, legally speaking, the appeal of the appellant had automatically abated on her failure to bring the legal representative of the deceased-respondent, Feroze Khan, on record within the period of 90 days from the date of the death of the said respondent and no formal order to that effect was needed to be made by the lower appellate Court. The application made by the appellant for the condonation of delay caused in filing the application for bringing legal representatives of the deceased-respondent did not lay under the law. Section 5 of the Limitation Act is not made applicable to an application for bringing legal representatives of the respondent and under Rule 4 of Order XXII of the Civil Procedure Code, where no application is made for the said purpose within the time limited by law, the appeal abates against the deceased-respondent.
10. In view of the above legal position, the appellant could file application for impleading legal representatives of the deceased-respondent only within 90 days from the date of death of the said respondent which had occurred on 10-9-1982 and since he had failed to do so. His appeal had already abated. His appeal having abated. The only remedy available to him was to have applied for setting aside the abatement under Rule 9, Order XXII of the Civil Procedure Code but instead of doing so he made an application for substituting legal representatives of the deceased- respondent alleging therein that he had recently come to know about the death of Feroze Khan, respondent without mentioning in it the date of his death, the fact of its being time-barred and reasons for not moving the same in time. It also did not contain any prayer for the condonation of delay in filing the same.
11. On the contrary, the appellant contested the objection of the respondents raised in their written objections filed in response to the above application that Feroze Khan, respondent had died on 10- 9-1982 and as such his application was barred by limitation and it was only after the lapse of period of about two years that he moved an application before the District Judge for condonation of six days delay caused in filing the application for impleading the legal representatives of the deceased-respondent on the ground that he had in time furnished the particulars of the legal representatives of the deceased-respondent to his counsel Mr. B.A. Farooqi, who could not file the necessary application due to his as well as his daughter's illness within the prescribed period.
12. Thus, in the above-mentioned circumstances, his application for impleading the legal representatives of the deceased-respondent cannot be treated as an application for setting aside the abatement although in proper cases such an application can be treated an application for setting aside the abatement. Even if, for the sake of arguments, the above application of the appellant for substituting legal representatives of the deceased-respondent, is treated as an application for setting aside the abatement still there exists no sufficient cause for setting aside the same. In the above application, as said earlier, the appellant simply prayed for adding on record the legal representatives of the deceased-respondent and there was nothing in it which may indicate that the same was being made beyond the period of limitation fix for the purpose under the law and that there was any cause for its not filing in time. The appellant even did not admit the objection of the respondents regarding the said application having been moved beyond the period of limitation and rather contested it and it was only after a pretty long time of two years after the close of the evidence of the parties on the issues framed in the application for impleading legal representatives of the deceased-respondent that he moved an application for condonation of delay in filing the said application when he was probably sure that his application would be declared time-barred by the District Judge in view of unrebutted oral as well as documentary evidence produced by the respondents in support of the date of death of the deceased- respondent as alleged by them.
13. The contention of the appellant that he had in time informed his counsel about the death of the deceased-respondent and had also furnished him with the particulars of the heirs of the deceased--respondent but he (counsel) had been prevented from making the neceassary application within time on account of his illness, appears to me a lame excuse and an afterthought having no truth in it. Had his above plea been true, then there was no reason why the same had not been specifically taken in his application for bringing on record the legal representatives of the deceased-respondent, especially when it was moved through his previous counsel Mr. B.A. Farooqi.
If the appellant had in fact informed his above counsel about the date of death of the deceased- respondent and the necessary particulars of his heirs in time and the counsel was prevented by his or his daughter's illness from moving the application for bringing legal representatives of the deceased-respondent within the period of limitation then there appears to be no reason why the above grounds would not have been incorporated in the said application by the counsel of the appellant who being a senior lawyer was expected to be fully aware of the consequences of not impleading the legal representatives of the deceased-respondent within the time allowed by law.
14. Similarly the appellant would not have waited for about two years for filing an application for condonation of delay caused in filing the application for substituting legal representatives of the deceased-respondent on the grounds mentioned therein and referred to above after an objection about his latter application being time-barred was taken by the respondents, if the above grounds for condonation of said delay were true and genuine. The above application for condonation of delay was not filed by Mr. B.A. Farooqi but by the other counsel engaged by the appellant. For the above reasons, it cannot be said that sufficient cause has been made out by the appellant for condonation of delay in filing the application for bringing on record the legal representatives of the deceased-respondent or for setting aside the abatement of his appeal which had taken place for non-impleading the legal representatives of the deceased-respondent within the time limited by law.
15. For the foregoing reasons, the judgment and decree of the lower appellate Court, dismissing the appeal of the appellant, as having abated, needs no interference by this Court in appeal.
Accordingly, this appeal is dismissed. In the circumstances of the case, the parties shall bear their own costs.