This judgment will also dispose of R. S. A. No. 1071 of 1970, as both the cases involve the same points and more or less relate to the same property.
2. Before the arguments in both the appeals could be made on merits, the learned counsel for the respondents raised preliminary objections to the effect that they had abated as the legal representatives of Sh. Mahboob Elahi one of the respondents, had not been brought on record within time. The said respondent died on 23rd of September 1970 and the certified copy of the death entry was delivered to the appellants on 25th of November 1970. An application under Order XXII, rule 4, C. P. C. Read with section 151, C. P. C. Was submitted by the appellants through their counsel on 2nd of January 1971. This application was accompanied by an affidavit but not by any application under section 5 of the Limitation Act for condonation of delay in submitting the same.
The date of death of the respondent was mentioned in the application but, the date as to when the appellants came to know about his death was not mentioned. It was prayed that it was in the interest of justice to substitute the names of the legal representatives for the deceased respondent. Another application under Order XXII, rule 9, C. P. C. Was submitted by the appellants on 5th of May 1972 for setting aside the abatement of the appeals on the ground that the previous applications under Order XXII, rule 4, C. P. C. Had been inadvertently filed and the necessary permission may be granted to amend the same so as to read it as an application under Order XXII, rule 9, C. P. C. The only ground for setting aside the abatement as given in the applications was that it was in the interest of justice to do so.
3. Both the applications have been vehemently opposed by the learned counsel for the respondents on the ground that they are barred by time and there is no sufficient cause shown therein for setting aside the abatement. The first application dated 1st of January 1971, submitted under Order XXII, rule 4, C. P. C. Can be treated to be within time, if it is believed that the appellants came to know about the death of the respondent on 25th of November 1970 when they submitted an application for the supply of the certified copy of the death entry, which was supplied to them on the same date It is not denied that the appellants reside in Chak No. 120JB Tehsil and District Lyallpur, which is situated at quite a good distance from the residence of the deceased respondent at Jaranwala Road, Lyallpur. However, they have not mentioned in their first as well as subsequent application that as to when they came to know about the death of the respondent and as to why they were prevented from making necessary application within time.
4. According to law if an application is submitted under Order XXII, rule 4, C. P. C. After the expiry of the period limited by law for bringing the legal representatives of a deceased party on record then the same can be treated to be an application under Order XXII, rule 9, C. P. C. For the purpose of setting aside the abatement irrespective of the fact whether an A prayer is made therein for setting aside the abatement or not. It is so because the abatement is automatic after the expiry of the due period prescribed for bringing on record the legal representatives and any applica--petition filed therefore would be treated as one for setting aside the abatement, provided sufficient cause is shown under section 5 of the Limitation Act for condoning the delay. Reliance in this respect can be placed upon Badlu v. Mt. Naraini (AIR 1924 Lah. 424), Kirparam v. Bhagat Chand and others (AIR 1928 Lah. 746), Ata-ur---Rehman and others v. Mashkur-un-Nisa and others (AIR 1926 Lah. 474), Janakinath Singha Ray v. Nirodbaran Ray and others (AIR 1930 Cal. 322), Kirpa Ram v. Bhagat Chand and others ((1928) 112 1 C 5), Diwan Chand Nirmal Singh and another v. Bhagwan Chand etc. (AIR 1937 Lah. 455), Dina Nath v. Syed Habib etc. (AIR 1929 Lah. 129), Bhartu v. Udmi and others (AIR 1934 Lah. 315), Lachmi Narain v. Muhammad Yusuf and others (AIR 1920 All. 284), Lakshamibai Jagan Nath Noshi v. Yeshwant Vithal Baghar (AIR 1922 Bom. 449), Firm Gabrulal v. Court of Wards, Bilaspur (AIR 1933 Nag. 85), Hassomal Hardasmal v. Pirbux and others (AIR 1933 Sind 36), Ramjatan Bhagat and others v. Babu Net Lal Sah and others (AIR 1950 Pat. 281), Kondiba Ganoji and others v. Moti Ram Ganoji and others (AIR 1953 Hyd. 167), Babaji Pathan v. Gurubara Padhani and others (AIR 1962 Orissa 94), Muhammad Bakhsh and 23 others v. Jamal and 6 others (PLD 1969 Lah. 642) and Sh. Ghulam Muhammad and another v. The Bank of Bahawalpur Ltd. And 21 others (1971 3 C M R 148).
5. In the circumstances of the case it may be believed that the appellants came to know about the death of the respondent on 25th of November 1970, when they submitted their application for the supply of the certified copy of the death certificate. As such their first application dated 1st of January 1971 would be within time and the same can be treated to be an application under Order XXII, rule 9, C. P. C. Provided sufficient cause is shown for condoning the delay as well as setting aside the abatement. In the present case Sh. Mahboob Elahi, respondent died on 23rd of September 1970, and his legal representatives were to be brought on record within a period of 90 days by 22nd of December 1970, whereas first application under Order XXII, rule 4, C. P. C. Was filed on 2nd of Janu--ary 1971, after a lapse of 10 days. It is significant to notice that the High Court was closed for the winter vacations on 24th of December 1970 and opened on 2nd of January 1971, but since the necessary application was not filed on 22nd of December 1970 therefore, there would be delay of 10 days in submitting the said application.
6. The question which arises for consideration is as to whether any sufficient cause has been shown by the appellants for condoning 'the delay in submitting the application and for setting aside the abatement of the appeals. Mere prayers for condoning the delay and setting aside the B abatement in the interest of justice would not be a sufficient cause under rule 9, Order XXII, C. P. C.
In the first application submitted on 2nd of January 1971, the only cause shown therein was that it was in the interest of justice to bring the legal representatives on record while in the second application submitted on 5th of May 1972, the only cause shown was that the first application under Order XXII, rule 4, C. P. C. Was filed in advertently and it was in the interest of justice to set aside the abatement and to bring the legal representatives of the deceased respondent on record. In their application, under section 5 of the Limitation Act, submitted on 5th of May 1972, against it was asserted that the delay in filing the application was not intentional. It has nowhere been shown as to when the appellants came to know about the death of the respondent and what were the circumstances under which they could not file the necessary application within time. It is not denied that they applied for the supply of the certified copy of the death certificate on 25th of November 1970 and the same was delivered to them on the same date. As such they came to know on the said date that the death had taken place on 23rd of September 1970 but in spite of that they did not file the necessary application within a period of 90 days from the date of death to bring the legal representatives on record. According to law both the appeals abated after a period of 90 days from the date of death of the respondent when the legal representatives were not brought on record. It was their duty to show as to why they could not file the said application within time and what were the circumstances beyond their control under which they could not move the Court to bring the legal representatives on record before 23rd of December 1972, in spite of the fact that they had come to know about the date of death at least on 25th of November 1970 when they were supplied the certified copy of the death certificate. This having not been shown, the contention of the learned counsel for the respondents that the appellants have been guilty of gross-negligence, appears to be correct.
7. It was held in AIR 1922 Lah. 61(1) that where the appellant delayed in moving the Court to bring on record legal representatives of the respondent on the ground that he was ignorant of his death, the mere ignorance of the factum of death was not a sufficient cause under rule 9, Order XXII, C. P.
C. In that case the death of the respondent had taken place on 23rd of August 1921, while the application was moved on 29th of November 1921, and the only ground taken therein was that the factum of death of the respondent was not known to the appellant. It was not explained as to how the appellant could not come to know about the same and under what circumstances he could not file his application within time. The appeal filed for setting aside the abatement was, therefore, dismissed by the High Court. According to 1926 Lahore, an application which purports to be under Order XXII, rule 4, C. P. C. Can be treated as one in substance under Order XXII, rule 9, but where there is no assertion in the application that the delay in filing the same is due to reasonable cause then such application cannot be treated under rule 9 of Order XXII. In that case, it was asserted that there had been no delay in bringing the legal representatives of the deceased respondent on record whereas necessary application had been filed after a lapse of 90 days and no explanation had been shown as to why it was delayed. In the circumstances the High Court refused to treat the application under Order XXII, rule 4, C. P. C as one under Order XXII, rule 9, C. P. C. In Tirath Ram and others v Muhammad Abdul Rahim Shah and others ((1923) 73 1 C 616) it was held that it cannot be said that an appellant's ignorance of the death of a respondent can in no case be a sufficient cause for setting aside the abatement A question of this nature cannot be decided in generality and dependent of the circumstances of each particular case before the Court. In that case the appellants submitted their application under Order XXII, rules 4 and 9 praying that the minor son of the deceased respondent be made a respondent in his father's place and pleading that the application had not been made earlier because the appellants were unaware of respondent's death. The application was supported by an affidavit to the effect that the appellants had been living out of Multan as student one at Lahore and the other at Lyallpur and for that reason they had no knowledge of the death of Rahim Dad, respondent. This application was granted by the High Court mainly on the ground that since the appellants were absent from Multan for a considerable time being students in other cities therefore, they could not come to know about the death of the respondent and as such could not move the application within time. In the present case, however, no such plea has been taken in any of the applications, It has not been shown at all as to how and under what circumstances the appellants could not come to know within time about the death of the respondent. The same point was involved in Kirparam v. Bhagat Chand and others ((1928) 1121 C 5), wherein it was held that an application to bring on record the legal representatives of a deceased respondent after the time limited by law should ordinarily be treated as an application under Order XXI, rule 9, C. P. C. For setting aside the abatement and should be granted on proof of a sufficient cause for the delay. In Diwan Chad Nirmal Singh and another v. Bhagwan Chand etc. (AIR 1937 Lah. 455), an application to bring the legal representatives of the deceased respondent on record was filed after limita--petition. The said application was made under rule 9 of Order XXII for setting aside the abatement. Since the deceased respondent had no fixed residence, therefore, the other party could not know about his death, immediately. This was considered as a sufficient cause for the delay in making the application and for setting aside the abatement. It was held in Muhammad Bakhsh and 23 others v. Jamal and 6 others (PLD 1969 Lab. 642) that the ignorance about the death of defendant on account of his residence being in a Tehsil different from that of the plaintiff who had no communication with the deceased, was a sufficient cause for condonation of delay. The explanation as furnished by the respondent before the Supreme Court in Sh. Ghulam Mohammad and another v. The Bank of Bahawalpur Ltd. And 21 others for condonation of delay and setting aside the abatement was that there was large number of legal representatives of the deceased and it was with difficulty that their names could be ascertained. Further the facts of that case show that the heirs of the deceased had made attempt to conceal the factum of death of their predecessor-in-interest. All this was con--sidered as a sufficient cause by their Lordships of the Supreme Court for condonation of delay and setting aside the abatement. The following observation, made by Mr. Justice Kaikaus in his judgment in Atta Ullah Malik v. The Custodian, Evacuee Property, West Pakistan, Karachi etc. (PLD 1964 3 C 236), on the point under discussion would be quite relevant: ---.. ---------------Under section 5 of the Limitation Act there has to a finding of sufficient cause. In pre-Partition India sufficient cause had been defined as circumstances beyond the control of the party and I do not know of any case wherein this definition of sufficient cause had been rejected.
However, at least in determining sufficient cause while dealing with the same expression in Order IX, rule 8,C. P. C. And Order IX, rule 3, C. P. C. The Courts had been lenient and had been condoning some negligence i.e., negligence to the extent to which it is regarded as human though they never condoned gross negligence. At the same time the Courts had always been strict in demanding proof of sufficient cause for every day which had expired after the ordinary period of limitation."
7. Since the legal representatives of the deceased respondent were not brought on record within time, therefore, both the appeals qua him stood automatically abated after the expiry of 90 days from the date of his death. The learned counsel for the respondents has argued that the appeals have abated in toto. I am afraid this contention has no force. The civil suit was filed by the appellants and Iqbal Muhammad Khan, predecessor-in-interest of respondents Nos.4 to 7 jointly against Master A.I Ahmad Khan and Sh. Mahboob Elahi. This suit was in respect of the land situated in Square No. 41 of Chak No. 120/JB., Tehsil and District Lyallpur. This being evacuee property Killa Nos. 11/1, 12/1, 13/1, 11/2, 12/2 and 13/2 were allotted and confirmed in the names of both the appellant and Iqbal Muhammad Khan deceased, respondent No. 3. Killa Nos. 7 to 10 were allotted and confirmed in the name of respondent No. 1, Master A.I Ahmad Khan and Killa Nos. 19 to 21 were allotted and confirmed in favour of Sh. Mahboob Elahi, respondent, who has since died. On the North-Western side of the said land runs the main Sargodha-- Lyallpur Road. Both the appellants and respondent No. 3, Iqbal Muhammad Khan, filed, their suit for perpetual injunction restraining respondent No. 1, Master A.I Ahmad Khan from preventing them from using the passage shown in red in the said plan, Exh. P/1 and restraining Sh. Mahboob Elahi deceased, respondent No. 2, from preventing the appellants from using the way shown as in red. The learned trial Court decreed the suit of the appellants against the respondent, Master A.I Ahmad Khan, while dismissed the same against the deceased. Sh. Mahboob Elahi. Before the learned District Judge, one appeal wall filed by Master A.I Ahmad Khan, against whom the suit of the appellants was decreed and the other was filed by the present appellants against the respondent, Sh. Mahboob Elahi deceased against whom their suit bad been dismissed. Both the appeals were disposed of by the learned District Judge by his judgment and decree on 10-3-1970, whereby he dismissed the suit of the appellants against both the said persons. However, the above discussion would show that the suit against Sh.
Mahboob Elahi deceased was in respect of a specific passage shown as while the suit against the surviving respondent, Master A.I Ahmad Khan was against a different passage and as such relief could be granted in favour of the appellants against both the respondents or against any one of them. As was done by the learned trial Court in dismissing the suit against Sh. Mahboob Elahi while decreeing the same against the respondents, Master A.I Ahmad Khan. Since the decree in the present case could be either joint or separate against the respondents and the relief claimed could be specific and separate, therefore, both the appeals would stand abated against the respondent, Sh. Mahboob Elahi deceased whose legal represen--tatives, have not been brought on record within time. The appeals would, however, continue against respondent, Master A.I Ahmad Khan. The office is, therefore, directed to fix both the appeals against the surviving respondents in the month of March 1974.