ZAFFAR HUSSAIN MIRZA, J.--This appeal is directed against the order passed by a learned Single Judge of the Lahore High Court, Lahore, whereby the second appeal filed by the appellants was held to have abated.
2. Briefly the facts are that Kh. Muhammad Sharif, Kh. Abdul Latif and Kh. A.I Bakhsh filed a suit on 25th October, 1957, against the present appellants in the Court of Civil Judge, IV Class, Sargodha, for the dissolution of partnership and rendition of accounts and for passing a money decree in their favour in respect of the amount payable to them after taking accounts of the partnership business. The appellants contested the suit and while admitting the partnership, the investment made by the plaintiffs, they, however, denied their liability to render accounts as according to them the plaintiffs were the accounting party. Their further plea was that the partnership business came to an end on 3rd November, 1956, long before the institution of the suit. It is pertinent to mention at this stage that during the pendency of the suit Kh. A.I Bakhsh, plaintiff No. 3 died and his legal representatives, namely, Mst. Jannat (widow) and Mst. Mariam (sister) were substituted and brought on record. The trial Court held that the partnership was subsisting and had not been dissolved and that the appellants were liable to render accounts. As a result the trial Court passed a preliminary decree directing the rendition of accounts from 31st March, 1956 to 15th May, 1961, the date on which the preliminary decree was passed Being aggrieved the appellants challenged the preliminary decree in an appeal which was partially accepted by the Senior Civil Judge, Sargodha.
The appellate Court modified the decree in that it was held that the firm being a partnership at will, stood dissolved from the date of the suit and, therefore, accounts were to be taken from 1st April, 1956 till the date of the institution of the suit.
3. Still being aggrieved the appellants went up in revision before the High Court, which was later on converted into a regular second appeal. It is material to state that the appellate decree was passed on 14th May, 1962, and the appeal was filed in the High Court on 28th September, 1962. This second appeal came up for hearing before the learned Single Judge on 20th May, 1974, when he passed the following order:-- "Mr. F.M. Anwari, Advocate for respondents Nos. 1, 2 and 4.
The case has been called and no one has appeared for the appellant. There is a report which shows that respondent No. 3 died in 1962 and his legal representatives have not been brought on the record. No application for setting aside the abatement has been given either.
The appeal has, therefore, abated and no further order is called for on it."
4. Being dissatisfied with the aforesaid order of "the learned Single Judge the appellants came before this Court for leave to appeal and it was pointed out that Mst. Jannat who was the party/ respondent in the second appeal before the High Court in fact died on 19th October, 1961 and another respondent, namely Kh. Abdul Latif on 6th January, 1967. Their legal representatives were on the record. On the basis of these facts and on hearing the petition leave was granted to consider the following contentions:-- (i)That the High Court was wrong in taking the view that the appeal had abated in toto in that in a suit for dissolution of partnership every partner is in the position of the plaintiff as well as defendant and upon the dissolution of the partnership the share of each partner in the assets of the partnership automatically passes to his heirs.
(ii) That where a party is entitled to a definite and ascertained share then there is no question of abatement in toto. In the present case, it having been found that the partnership stood dissolved, the share of parties having been ascertained and a preliminary decree actually passed for rendition of accounts, the appeal did not abate in toto.
5.We have heard the learned counsel appearing for the parties. Prima facie we find that the assertion of the appellants that Mst. Janat died on 19th October, 1961 seems to be uncontroverted and was not denied by the learned counsel for the respondent. As the appeal by the first appellate Court was decided on 14th May, 1962, it is clear that Mst. Janat died during the pendency of the first appeal and her impleadment in the second appeal filed on 28th September, 1962 as a party, whatever the circumstances, was improper as at the relevant time no proceedings could be filed or continued against a dead person. This is so because before the amendments made in Order XXII by the Ordinance XII of 1972, subject to the conditions laid down in Order XXII, rule 4, C.P. C. On the death of respondent, failure to substitute his legal representatives on the record would result in the abatement of appeal qua such a respondent. Consequently, since Mst. Janat was already dead and was in fact not a party to the second appeal, there was no question of that appeal having abated for failure to implead her legal representatives. In other words the death of Mst. Janat having taken place before the filing of the second appeal in the High Court, the question of the abatement of the second appeal did not arise and it appears that the attention of the learned Judge in the High Court was not drawn to this aspect of the case. The order in appeal, therefore, in view of the facts discovered, is unsustainable inasmuch as the appeal could not be disposed of as having abated.
6. The question which could perhaps have arisen for the consideration of the Court was whether the appeal as filed in the High Court was properly constituted for non joinder of the legal representatives of Mst. Janat if any or whether it could proceed to be decided on its own merits between the parties before the Court. It goes without saying that the question whether the death of Mst. Janat resulted in the abatement of the first appeal and if so to what extent is not the subject- matter of controversy before us. The situation in the present case is somewhat similar to the one in the case of Ghulam Muhammad and others v. Mehtab Beg and others 1983 SCMR 849. The following passage from the reported judgment may with advantage be reproduced:---- "In support of his argument learned counsel for the appellants placed reliance on the cases of Ghafur A.I and others v . Mst. Kaman AIR 1930 Lah. 352 and Shah Muhammad v. Muhammad Bakhsh PLD 1972 SC 321. Both these cases related to the non-substitution of the legal representatives of a deceased party during the pendency of the proceedings, to which situation the provisions of Order XXII of the Code of Civil Procedure are attracted. The question before us is not of the abatement of the appeal before the High Court on the failure of the appellants to substitute and bring on record the legal representatives of a deceased respondent. The essential question is whether the appeal was bad in form and not properly constituted when some of the defendants were not arrayed as respondents in appeal. In other words it has to be shown that the non-impleaded parties were necessary parties in whose absence no effective decree could be passed for, as held by this Court in Sarshar A.I v. Roberts Cotton Association Ltd. PLD 1963 SC 244, a party who is not a necessary party or against whom no relief is asked for, his non-joinder does not render the appeal incompetent. In the present case the High Court passed a decree holding that the respondents were entitled to inherit the right of occupancy tenancy to the extent of 5/6th share, excluding the share of deceased Chiragh A.I. Since the deceased had a defined share the failure to implead his legal representatives, as already held by the High Court, has resulted in the right of occupancy tenancy having come to an end in regard to his share. However we have not been shown how he was a necessary party in the appeal.
7. In view of what has been stated above we feel that the questions of law on which leave was granted do not arise for decision in this appeal. However, for reasons already mentioned, the impugned order is liable to be set aside. In the result this appeal is allowed and the order of the High Court, dated 20th May, 1974, is set aside. The case shall be remanded to the High Court to decide the second appeal in accordance with the law. In the circumstances of this case there will be no order as to costs.