1. BASHARAT AHMAD SHAIKH, J.--On 25th July, 1967, one Afriq Khan transferred a piece of land to Abdul Karim, Sain Muhammad Ali and Sher Ahmad through a registered sale-deed. The sale was sought to be pre-empted by Muhammad Ashraf and Mst. Babu Jan in two separate suits which were instituted in the Court of Sub-Judge Bagh, respectively, on 2nd July 1968 and 2nd August 1968.
2. As required by section 27 of the Right of Prior Purchase Act, both the plaintiffs were joined in the cross suits as defendants. The two suits were also consolidated for hearing by order passed on 30th of April 1969. It appears from the record that after the order of consolidation on 30th of April 1969 the proceedings in the consolidated cases were taken in the suit filed by Muhammad Ashraf.
3. The common issues, which were framed on 2-6-1969, were recorded in this file and the order for production of evidence was also recorded in the same file. In the other file relating to the suit filed by Mst. Babu Jan the learned Sub-Judge only recorded the interim orders that the rile would come up on the nex date along with the other file.
4. On 20th of January, 1969, one of vendees, Sain Muhammad Ali, passed away and Mst. Babu Jan plaintiff filed an application that the legal heirs of the deceased defendant may be brought on the record. This application was moved on 27th of March, 1969, in the suit filed by Mst. Babu Jan and was, after having been kept pending for some time, accepted on 18th of March, 1970. It may be noted here that Sain Muhammad Ali died before consolidation of the suits and the application for bringing on record his legal representatives was also moved on a date prior to the date on which the two suits were consolidated.
5. An application having been moved on 12-2-1970 in the other suit the learned Sub-Judge ordered on 18th of march 1970 that the suit filed by Muhammad Ashraf had abated to the extent of Muhammad Ali. When the order was announced on 18th of March an application was moved on the same day on behalf of the other vendees that since the transaction was indivisible the whole suit should be dismissed. While this application was awaiting decision, Muhammad Ashraf applied on 28th of May, 1970 for setting aside of the abatement order and for bringing on record the legal representatives of Muhammad Ali. He listed many reasons in support of the application including the fact that he had all along been living in Karachi and also the protracted illness of his counsel at Bagh. The application was accepted on 21st of December and the abatement was set aside.
6. However, the name of one of the heirs, Mst. Anari Begum daughter of Muhammad Ali, was left out and was not included among the heirs of the deceased. A revision was taken against this order to the High Court which was accepted by a Division Bench on 8th June, 1975. It was held that the suit had abated to the extent of Muhammad Ali. A certificated appeal initially filed in the Judicial Board was decided by this Court on 15th January, 1984, and it was held that the suit filed by Muhammad Ashraf had abated in so far as it related to Muhammad Ali vendee.
7. While the aforementioned appeal was pending in this Court Muhammad Ashraf died. An application was made for bringing on record his legal representatives. The application was accepted on 30th December, 1982. When the file went back to the learned Sub-Judge at Dhirkot an application was made in the suit bled by Mst. Babu Jan that Muhammad Ashraf had died but Mst.
8. Babu Jan had not applied for impleading the legal representatives of Muhammad Ashraf, therefore, her suit had abated. It was prayed that the suit may be dismissed. The learned Sub- Judge dismissed the application on 29th July, 1986 on the ground that legal representatives of Muhammad Ashraf had already been validly brought on record when the matter was before the Supreme Court; as such the question of abatement did not arise. A revision petition was filed in the High Court by Abdul Aziz son of Muhammad Ali in which he challenged the order of the learned Sub-Judge. It was contended that the legal representatives of Muhammad Ashraf had been brought on the record in the suit filed by Muhammad Ashraf and not in the suit filed by Mst. Babu Jan and it was necessary for Mst. Babu Jan to formally move an application for the purpose of impleading the legal representatives of Muhammad Ashraf in the suit filed by her and she could not take advantage of the order to that effect passed in the Supreme Court because that order was confined to the suit filed by Muhammad Ashraf. The revision application was dismissed by a learned Judge in chambers on 22nd of October, 1987 which gave rise to the present appeal filed with the leave of the Court.
9. Kh. Shahad Ahmad, the learned counsel for the appellant, vehemently contended that the reasoning adopted by the learned Judge in chambers was not legally sustainable. He submitted the view taken by the learned Judge in the High Court that the requirement of Order 22, rule 4 of the Civil Procedure Code had been complied with by impleading the legal representatives of Muhammad Ashraf in the Supreme Court was not correct. Kh. Shahad Ahmad submitted that the application for bringing on record the legal representatives of Muhammad Ashraf had not been made by Mst. Babu Jan and she, therefore, could not take advantage of the proceedings taken on the application moved by the heirs of Muhammad Ashraf because they were confined to the suit filed by Muhammad Ashraf. He submitted that the dispute which had been brought to this Court arose out of the suit filed by Muhammad Ashraf and not in the suit filed by Mst. Babu Jan. The suit filed by Mst. Babu Jan was, therefore, not before the Supreme Court and there is no justification for applying the principle that if a person is brought on record in the superior Court he will be deemed to have been impleaded in the trial Court file. Kh. Shahad Ahmad also pointed out that in the previous order of this Court abatement was ordered to the extent of Muhammad Ali in spite of the fact that in the cross suit all the legal representatives of Muhammad Ali had been impleaded by Mst. Babu Jan. His argument was that if it was the correct principle of law that legal representatives impleaded in one case would be deemed to have been impleaded in the other case then there should have been no abatement in the previous round of litigation which ended with the judgment of this Court passed on 15th of January, 1984.
10. Raja Sher Muhammad on the other hand submitted that it was now well settled that if in the superior forum legal representatives of the deceased person are brought on record that dispenses with the necessity of filing an application for that purpose in the suit pending before the trial Court.
11. He also contended that in the light of this principle where there are two suits which have been consolidated for hearing and both are before the superior forum only one application moved in the superior forum shall be sufficient and the legal representatives thus brought on record would be deemed to have been impleaded in both the files. He placed reliance on Zakira Begum v. Aziz Ahmad 1986 CLC 2410 (2), Haq Nawaz v. Mst. Nur Bhari [1970 SCMR 5541 and Inam Nabi Pardesi v.
12. Dr. Maj. Syed Ahmad Hassan [PLD 1975 Kar. 530].
13. The proposition that impleadment of legal representatives of a deceased party in the superior Court is sufficient and enures in the suit as well is well settled. The learned counsel for the appellant, Kh. Shahad Ahmad, also does not dispute this proposition seriously. The question which arises for determination is whether impleadment of legal representatives in the appeal previously disposed of by this Court would be sufficient to bring the legal representatives of Muhammad Ashraf on the record of both the suits.
14. As already noted the two suits had been consolidated for hearing and in view of the consolidation the two files had become interlinked and inseparable. The File relating to the suit filed by Mst. Babu Jan had also been sent to this Court when the previous appeal arising out of the suit filed by Muhammad Ashraf was decided and the file shows that it was received back by the trial Court on 15th of April 1984. Although it is correct that the dispute which was the subject-matter of the previous round of litigation arose out of the suit filed by Muhammad Ashraf but the fact remains that the file relating to the suit filed by Mst. Babu Jan was also in the Supreme Court when Muhammad Ashraf died and his legal representatives were brought on the record. It is, therefore, clear that Mst. Babu Jan's case was also a part of the record before this Court when the legal representatives of Muhammad Ashraf were brought on record. It, therefore, follows that the requirement of rules 3 and 4 of Order XXII of the C.P.C. Was complied with, namely, that the legal represeqtatives were brought on the record. Following the settled principle that legal representatives impleaded in the superior Court will be deemed to have been impic aded in the suit file, the position that emerges is that when the legal representatives of Muhammad Ashraf were impleaded in the Supreme Court they shall be deemed to have become part of the whole record. We have already noted that the proceedings in the trial Court were being taken in Muhammad Ashraf case and all orders which were passed in Muhammad Ashra case were also being treated to have been passed in Mst. Babu Jan's case. In Mst. Babu Jan's case the only order which was passed from time to time was that file would come up for hearing with the other file, namely, the file of the suit filed by Muhammad Ashraf. When the suits were consolidated for hearing the same had become inseparable from the very fact that the legal representatives of Muhammad Ashraf were brought on the record while the record was in the Supreme Court it would follow that the legal representatives would automatically be brought on the record of the other file also.
15. 1970 SCMR 554] cited by Raja Sher Muhammad Khan it was held by the Supreme Court of Pakistan that there was no necessity of fresh application if in a connected proceeding legal representatives of a party are brought on record. In this case although there was only one suit but there were two different proceedings emanating out of the same suit which were pending in different Courts when a party died. One proceeding was in the High Court while the other was in the Court of District Judge. An application was made in the High Court for bringing the legal representatives of deceased party on the record and the prayer was allowed. The objection that the suit file was at that time pending before the District Judge, therefore, an application should have been made before the District Judge was repelled and it was held that if a party is brought on the record in the High Court he shall be deemed to have been properly impleaded for all future stages of the case. This judgment has been followed in Inam Nabi Pardesi's case [PLD 1975 Kar.
16. 530], which has also been relied upon by the learned counsel for the respondents.
17. The argument of the learned counsel for the appellant that in the previous judgment of this Court abatement had been ordered in the suit filed by Muhammad Ashraf against Muhammad Ali deceased although his legal representatives had been duly brought on record in the suit filed by Mst. Babu Jan, has no force. The argument fails to take note of the fact that when Muhammad Ali died and an application was moved for bringing his legal representatives on record the two suits had not been consolidated till then. The suits were consolidated by the order passed on 30th April 1969. When Muhammad Ali died there were two separate suits and Muhammad Ashraf was not a party in Mst. Babu Jan's case nor was Mst. Babu Jan a party in Muhammad Ashraf s case. Both the suits had independent entity at that time and had not been consolidated. Therefore, the legal representatives brought on record in one case could not be treated to have been brought on the record ipso facto in the other file. We also note that this argument was not raised when the previous appeal was heard.
18. As a result of the above analysis the appeal stands dismissed with no order as to costs. The suit files shall be sent back to the learned Sub-Judge Dhirkot who would now proceed to decide the suits on merits. As more or less 23 years have elapsed since the suits were filed we hope that the learned Sub-Judge would give priority to these cases so that their disposal may now be expedited.