1. ' USMAN ALI SHAH, J.--Leave to appeal has been sought by the petitioner in a pre-emption matter, against the acceptance of the regular second appeal of the respondent by the learned High Court.
2. ' The suit land measuring 11 kanals 7 marlas was owned by Muhammad alias Mandu and Muhammad Hussain. They sold the same to Muhammad Sadiq petitioner for an ostensible sale consideration of Rs,12,000 vide mutations dated 28-10-1967 and 28-5-1968, although according to Sakhi Muhammad plaintiff, Rs,6,000 was actually fixed and paid to the vendors. The plaintiff/respondent pre-empted the sale claiming his superior right on the ground of collateral of the vendors. The defendant-petitioner contested the suit. The learned trial Judge framed contesting issues on the pleadings of the parties and after recording evidence decreed the suit of Muhammad Sakhi plaintiff in his favour on payment of Rs,7,434. Muhammad Sadiq defendant filed appeal before the District Judge Jhelum who, vide his judgment dated 21-10-1970, accepted his appeal, set aside the judgment and decree of the trial Court and dismissed the suit of Muhammad Sakhi respondent herein. Being aggrieved he went in regular second appeal before the High Court.
3. A learned Single Judge, vide his judgment dated 30-4-1989, accepted the second appeal, reversed the judgment dated 21-10-1970 of the District Judge and restored that of the trial Judge, dated 21- 7-1969.
4. ' The learned counsel for the petitioner urged that the plaintiff died issueless on 23-7-1978 during the pendency of the appeal before the High Court and no application by any one claiming to be his Legal heir was submitted, therefore, the proceedings in this case before the High Court became void and of no legal force.
5. ' In order to appreciate, the point raised by the learned counsel, we may make reference to the amendment introduced in Order XXII of C.P.C. By Ordinance XII of 1972. Sub-rule (2) of Rule 3 of Order XXII, C.P.C. Before and after amendment may be reproduced:- ' Previous sub-rule (2).-- Where within the time limited by law no application is made under sub- rule (1), the suit shall abate so far as the deceased plaintiff is concerned, and, on the application of the defendant, the Court may award to him the costs which he may have incurred in defending the suit, to be recovered from the estate of the deceased plaintiff, ' Present sub-rule (2).-- Where within the time allowed by law no application is made or intimation given under sub-rule (1), the Court may proceed with the suit, and any order made or judgment pronounced in such suit shall, notwithstanding the death of such plaintiff, have the same force and effect as if it had been made or pronounced before the death took place.
6. ' A look at the unamended sub-rule (2) will show that if no application is made under sub-rule (1) the suit shall abate so far as the deceased plaintiff is concerned. But this condition is not enunciated in the amending sub-rule (2). Now as appeal in the present case was pending in the High Court when Order XXII, C.P.C. Was amended and as the plaintiff had already died, it cannot be argued that the appeal of the plaintiff abated in view of the fact that no application was made under sub-rule (1) for the impleadment of his heirs within the period of limitation. Lnus in view of the amending sub-rule (2) of Rule 3 of Order XXII, C.P.C., the question is whether the appeal of the deceased plaintiff in the present case was rendered infructuous because his legal heirs failed to apply for their impleadment in place of the plaintiff.
7. ' We have given our earnest consideration to this question, but we have not been able to subscribe the contention of the learned counsel for the petitioner that the proceedings in the case were rendered void and of no legal force as the legal heirs of the plaintiff did not apply for their impleadment within the period of limitation after the death of the plaintiff. Correct that according to the amending sub-rule (2) of Rule 3 of Order XXII, C.P.C. An application for the impleadment of the heirs of the deceased is to be made within the period of limitation, but unless the legal heirs are aware that their deceased predecessor has brought action in a particular Court, we do not understand as to how they should be made to suffer and the Court straightaway give decision against them. Now when the L. Rs, of the plaintiff were not impleaded within time allowed by the law i.e, 90 days, the suit will not be dismissed as abated and the Court may proceed with the suit notwithstanding the failure to implead the Legal Representatives of the plaintiff. To similar effect is the case of death of defendant as laid down in Order XXII, Rule 4, sub-rule (2). The amending rule provides that even in the absence of application having been made for impleading the L. Rs, withint the prescribed time, order or judgment in the case may be pronounced in the suit or appeal and it will have the same force and effect as it has been pronounced before the death.
8. ' It is to be seen that when there is no intimation or application made as required under sub-rule (1) of Rule 3, the Court shall continue with the adjudication of suit and the decree so passed will be valid and shall have the same effect as if the death has not taken place. However, if it is brought to the notice of the Court that the plaintiff died and nobody made application under sub-rule (1), the Court can implead Legal Representatives of the plaintiff suo motu according to the list given under Order VII, Rule 26 of the plaintiff accompanied with the plaint and similarly under Order VIII, Rule 13 the list of the Legal Representatives of the defendant attached with the written statement. The order is to be made or the decree is to be passed which will be binding on them unless set aside under sub-rule (9). Hence no question of abatement could arise in view of the Law Reforms Ordinance (XII of 1972). The amending rules also apply to appeals and the word plaintiff shall be held to include the appellant and the word defendant to apply to respondent and the word suit to appeal. Prior to the 1972 Amendment when the sole appellant or respondent died, the appeal abated unless substitution was effected and decree so obtained was a nullity.
9. ' In the Limitation Act Article 171 is also amended by Ordinance XII of 1972 which is as follows:-- Article 171 ' By the legal representative of a Sixty days The date deceased plaintiff or defendant for of the setting aside an order or judgment order or made or pronounced in his absence. Judgment.
10. ' When the death has taken place before 14th April, 1972 i.e, coming into force of Ordinance XII of 1972, the application in the case is to be decided in the light of the old provision of Order XXII. Article 176-177 of the Limitation Act for impleading the Legal Representatives shall apply.
11. ' There is nothing on the record to show that the legal heirs of the deceased plaintiff in this case were aware that the appeal of the latter was pending in the High Court. By going through the judgment of the High Court, there is nothing to show that an objection Was raised on behalf of the petitioner that the legal heirs of the deceased plaintiff despite the fact that they had the knowledge that the appeal of their deceased predecessor plaintiff was pending in the High Court, they did not care to apply for their impleadment as his legal heirs in the proceedings and on that score the proceedings before the High Court were rendered void and of no legal effect. The petitioner was bound to establish this fact. For that purpose he was to apply before the High Court. The High Court was to issue notice to the heirs. The heirs were to rebut the stand of the petitioner and after hearing both the sides, the High Court was to give decision one way or the other. In the absence of such thing available on the record the question of bar of limitation agitated by the learned counsel before us will not arise. The moreso as this question was not raised even before the High Court. The High Court, therefore, proceeded with the hearing of the appeal on merit, and notwithstanding the death of the plaintiff/appellant the judgment made and pronounced will have the same force and effect as if it had been made or pronounced before the death of the plaintiff/appellant took place.
12. ' No other point was seriously urged. Leave to appeal therefore, refused and this petition is accordingly dismissed.