' The appeal is addressed against the order of learned District Judge, Bagh, passed on October 26, 1991, whereby the order of learned Sub-Judge, Bagh, passed on January 31, 1991, resulting in dismissal of suit of plaintiff-appellants, on the ground of abatement, was upheld.
2. Muhammad Yasin Khan, Muhammad Zubair, Muhammad Siddique, Muhammad Aziz and Muhammad Aslam, plaintiffs, .Brought a suit for possession by pre-emption, against Gul Sher Khan and Ali Sher Khan, vendees, and others, in respect of the suit property consisting of land measuring 5 Kanals 13 Marlas, comprising Survey No,251 min and a house situate in village Bani Mohalwan, Tehsil Bagh. It was averred that Muhammad Ibrahim, father of the palaintiffs, alienated the suit property, without their consent and information, to Gul Sher Khan and Ali Sher Khan, in consideration of Rs,25,000 through a registered sale-deed executed on October 23, 1984 and passed on the possession to the vendees. It was stated that the actual price of the suit property was Rs,25,000 and the same was paid before the Sub-Registrar, but in order to defeat the right of prior purchase of the plaintiffs, fictitious price in the sum of Rs,80,000 was entered in the sale-deed.
The plaintiffs alleged their claim by virtue of relationship with the vendor. The suit was instituted on October 8, 1985,
3. The proceedings were at the stage of evidence of the plaintiffs when on April 18, 1990, an application was moved by contesting defendants, showing thereby that Gul Sher Khan died on March 23, 1988 and his legal heirs were not arrayed in time. Therefore, the suit of plaintiffs was liable to dismissal on the ground of its abatement. The hearing of the application was postponed to May 11, the date of hearing in the suit already fixed. May 11 happened to be a closed day, so the file was placed before the Presiding Officer on May 12. The learned counsel for the parties were present. The attention of the learned counsel for the plaintiffs was invited to the application and he was asked to file the objections. As the objections were not readily available, so in the light of the request made by the learned counsel, the proceedings were adjourned to June 30. On that day, again, no objections to the application were filed. The proceedings were adjourned per request of the counsel of the plaintiff-appellants. But he was made liable to pay costs in the sum of Rs,30. The case was adjourned to July 25 when objections in the shape of application were addressed to the Court. The application was signed by Muhammad Yasin, one of the plaintiffs and the counsel. In his application, Muhammad Yasin explained that the deceased defendant died in Pakistan as he was in service over there. The plaintiff acquired no knowledge of his death as he lived 22-25 miles away from the village of deceased defendant. It was further explained that the plaintiff learnt about the death of the defendnat on May 11, 1990, as such they could not move to implead the legal heirs of the deceased within time. The names and particulars of the legal heirs of the deceased were also given and prayer was made to implead them as defendants.
4. The learned Sub-Judge dismissed the suit on account of its abatement. It was disclosed that the application was beyond time and no sufficient reason was given to condone the delay. The appeal before the District Judge also failed.
5. Mr. Muhammad Farid Khan, the learned counsel for the appellants contended that the application to implead the legal heirs of the deceased defendant should have been treated as an application to set aside the abatement. It was canvassed that the reasons in support of absence of knowledge of the appellants, were quite evident from the averments made in the application, as such it should have been accepted as sufficient cause to condone the delay. The learned counsel supported his contentions by reference to 1987 CLC 1698, 1973 SCM R 286, PLD 1969 Lahore 242, PLD 1974 SC 331 and PLD 1976 Lah.
1304. Sardar Zahoor Ahmed Khan, the learned counsel for the respondents, controverted the aforesaid pointsand contended that the application to implead the legal heirs of the deceased defendnat was beyond time. Moreover, it was argued that the application could not be deemed as application to set aside the abatement unless a definite prayer was made in it by the plaintiff- appellants. Reference was made to PLD 1968 SC 140, 1972 SCM R 317, 1980 SCM R 779 and PLD 1981 SC (AJ&K) 68.
6. The question of fact relating to controversy about the time of death of the deceased somehow, is not disputed. It is on record that Gul Sher Khan defendant, died on March 23, 1988. He died in Rawalpindi by heart attack. The report of death was made to the Union Council Bir Pani, Bagh by Muhamamd Khalid, on March 31, 1988. An attested true copy of the certificate of the Union Council was also appended with the application of the defendant. The other fact partains to place of living of the plaintiffs. The plaintiffs in their memorandum of appeal before this Court and the District Judge, described place of residence as Bani Mehalwan. An identical address was given in their plaint. Therefore, it needs no further proof to hold that palintiff-appellants resided in the same village where the contesting defendants and legal heirs of the deceased defendant resided.
7. The limitation to implead the legal heirs of a deceased defendant or deceased respondent, as the case may be, is 90 days as contained under Article 177 of the Limitation Act. The limitation commences from the date of death of deceased defendant or respondent. It is accepted by the appellants that their application was not within time. The explanation furnished to constitute sufficient cause for condonation of delay is patently self-contradictory. It finds no support from particulars relating to the place of residence of plaintiffs-appellants, as described in their pleadings.
8. The other point canvassed at the bar is that the application to implead the legal heirs should have been treated as an application for setting aside the abatement. Ordinarily, it was enjoined upon the plaintiffs to move for setting aside the abatement of their suit. No application is shown to have been moved in that direction. The application moved by them is in the shape of objections and in that application it was prayed that the legal heirs of .The deceased defendant may be impleaded. In absence of express prayer made in the application to set aside the abatement of suit, there should have been some indication by implication, in the recitals to demonstrate the intention of the applicants that they also desired the setting aside of abatement of the suit. In absence of such position, it was not enjoined upon the Court, suo motu, to treat the application to set aside the abatement. Even if for argument sake, keeping in view the interest of justice, the application is treated to set aside the abatement, in that position, the application should have been made within a period of 60 days from the period of abatement of the suit. In present case, the plaintiffs became aware of the death of the deceased defendant, on May 11 and they moved their application on July 25. The application was patently beyond time. It is not explained as to why the plaintiffs took such a long duration in moving the application. The record reflects that the trial Court asked the learned counsel for the plaintiffs to file an application or objections, as the case may be, on May 12. Adjournment was sought on that day. On the next date of hearing on June 30, again, adjourment was sought on payment of Rs,30 as costs.
9. The rule of law is that once the limitation starts running against a party, in order to avail condonation, the onus is on such party to explain delay of each day. In present case, it is not shown to have been done so. The authorities cited in support of the proposition are of no help to the case of the appellants as by virtue of their distinct facts and considerations of the Courts, they are quite distinguishable. No other point was canvassed in support of the appeal.
' In view of the aforesaid position, the appeal merits no consideration. It is, therefore, dismissed. No order as to costs.