1. ' Civil revision at the instance of plaintiff in the suit was against an order of learned Additional District Judge of Rawalpindi dated 23-11-1978, confirming decision of the learned trial Court given on 12-6-1976, holding that the civil suit had abated on score of death of Bashir Ahmad defendant No,2 in the suit, and, sufficient cause was not made out for setting aside of the abatement on this score. .
2. ' For the purpose of decision of the civil revision, facts are brief and simple. A short reference to them shall be helpful.
3. ' Muhammad All plaintiff was owner of House No, A/601-A in Mohallah Mohanpura of Rawalpindi City. It was formerly an evacuee property and was permanently transferred to his father Allah Din.
4. He sold it to the plaintiff on 15-8-1964 vide a registered sale-deed for a sum of Rs,6,000. Abdul Hameed defendant No,1 in the suit was real brother of the plaintiff. He was in occupation of the house with permission of the plaintiff. He claimed to have purchased the house from his brother for a similar consideration by a deed of sale registered on 5-4-1965. Later, he sold it to Bashir Ahmad defendant No,2 through a registered sale-deed for the sale price of Rs,17,000.
5. ' On 31-3-1966, plaintiff instituted a suit against his brother and purchaser of the house from him namely Bashir Ahmad for avoidance of sale attributed to him and characterized the transaction as fraudulent and fabrication. He denied that he had ever sold the house to defendant No,1 or received any consideration from him in that behalf. He also denied execution of the sale-deed by him and its registration on his behalf. In separate written statements defendants Nos,1 and 2 defended their title to the house and asserted its valid sales in their favour. Pleas for less payment of court-fee on the plaint and maintainability of the suit and estoppel were also taken in defence.
6. On 7-9-1966, trial Court settled three following preliminary issues:--
(1) Whether the suit is correctly valued for the purpose of court-fee and jurisdiction? If not, then what is the correct valuation? OP Parties.
(2) Whether the suit is not maintainable in its present form? OPD
(3) Whether the plaintiff is estopped from bringing the suit? OPD.
7. ' On 10-1-1967, first two issues were resolved in favour of the plaintiff and decision on the third issue was postponed with the decision on merits of the suit. On 26-1-1967, following issues were settled on merits:--
(1) Whether the sale-deeds dated 15-3-1965 and 4-6-1965 were liable to be cancelled for the reasons mentioned in paras. 3 and 4 of the plaint? OP
(2) Whether the plaintiff is estopped from bringing the suit? OD
(3) Relief.
8. ' Plaintiff gave his complete evidence and finished it on 26-104968. Thereupon, defendants entered upon the defence and produced their evidence and concluded it on 2-10-1969. Upon conclusion of the trial, suit was adjourned for hearing of arguments on merits. However, in the process of further adjournments, learned trial Court discovered that issue on a material point was omitted and framed it as under on 26-1-1970:-- (2-A) Whether the defendant No,2 purchased the disputed house. Against consideration and took reasonable care to ascertain that the defendant No,1 had power to transfer the same? If so proved, its effect? OPD.2.
9. ' Thereafter, defendant No,2 produced an extract from Excise and Taxation records in evidence on the additional issue No,2-A, but plaintiff decided not to give its rebuttal. Once again, suit was adjourned for hearing of arguments. At this stage, an application for additional evidence, presumably for comparison of disputed signature on the questioned sale-deed with the routine signature of the plaintiff was filed in the trial Court. It was allowed on 17-3-1971 by the trial Court.
10. Thereupon, sample signatures alongwith necessary documents were sent to the expert witness for his opinion on them.
11. ' In this state of proceedings, defendant No,2 died on 26-10-1971. Upon gaining knowledge of the event on 28-4-1972, plaintiff applied to the trial Court on 3-5-1972 for substitution of his surviving legal representatives. A petition was submitted under Order XXII, Rules 4 and 9, of Civil P.C. For this purpose. An application under section 5 of the Limitation Act, 1908, accompanied the main petition for condonation of its delayed filing out of time. On 24th February 1973, trial Court rejected the petition and observed that the suit stood abated. On appeal, the decision was reversed on 26-11- 1973 and the matter was remitted for re-trial on issues reproduced in the impugned order of the learned Additional District Judge of Rawalpindi.
12. ' Upon remand, plaintiff gave evidence of two P.Ws. And himself appeared as P.W.3 to support his plea that he had no knowledge of the death of defendant No,2, before the date given by him in his application filed under Order XXII. Defendant did not give rebutting evidence. On consideration of the evidence brought on record, trial Court found fault with it and held that it did not make out a sufficient cause for condoning the delayed approach to the Court and dismissed the petition as barred by limitation. Plaintiff's appeal from the order of the trial Court was also dismissed. These decisions are sought to be revised in this Court.
13. ' Learned counsel for the petitioner as well as learned counsel for legal representatives of deceased respondent No,2 was heard at length. Respondent No,1 was not represented at the hearing by his learned counsel. An intimation through P.CA.D. Was given. It was presumed to have reached him.
14. Therefore, revision petition was heard in his absence.
15. ' Plaintiff resided at Multan. Property in dispute was situated at Rawalpindi. Defendant No,1 was real brother of the plaintiff. He claimed to have purchased the house from him. Plaintiff charged him with fraud and forgery in respect of sale-deed questioned in the civil suit. He also prosecuted him for offences of cheating, fraud and forgery in the Criminal Court but failed. In this view, there was no love lost between the two brotheRs, Defendant No, 2 was represented at the trial by an Advocate practicing at Rawalpindi. So was the defendant No,1. Despite his death on 2640-1971, trial of the suit proceeded without interruption and learned counsel for both the parties appeared on each date of hearing from 28-10-1971 to 24-4-1972. On each date of hearing, defendant No,2 was represented by his learned counsel. Similarly, defendant No,1 appeared through his learned counsel. Proceedings in the suit were in a state of suspense for awaiting the return from the expert witness. Plaintiff's presence was marked in the order-sheet of 8-2-1972, but since the defendant No,2's Advocate was present, it did not put him to any inquiry about the death of defendant No,2. As said above, plaintiff permanently resided at Multan. His learned counsel represented him at the trial of the suit. From all the way from Multan, plaintiff may not have come to attend the proceedings in the suit on its each and every date of hearing. His learned counsel may have accommodated his inconvenience and agreed to attend the trial on his behalf.
16. ' In the above context, pivotal point for consideration by this Court was; whether record gave good and sufficient cause for setting aside the dismissal of the suit on account of it having abated because of death of defendant No,2 and the application for substitution of legal representatives not filed in time fixed by the relevant Articles of the Limitation Act. Matter related to a period prior to amendments in Order XXII by Law Reforms Ordinance, 1972. Rule 4 of Order XXII, Civil P.C. Dealt with death of a sole defendant or one of the defendants during the pendency of the suit. Article 177 of the Limitation Act, 1908, gave ninety days from the death of the deceased defendant for substitution of his legal representatives on record. In case, no application for bringing on record the legal representatives was filed, the suit abated qua the deceased defendant. In case, death of the defendant made it impossible to proceed with the trial of the suit in respect of the other defendant or defendants, the suit shall abate as a whole. Abatement was automatic. No order was required to give effect to it. Article 171 of the Limitation Act gave a further period of sixty days for setting aside of the abatement of the suit. There was no dispute that where an application for impleadment of legal representatives was made after expiry of period fixed by the Limitation Act for the purpose, the Court could rightly treat the application as an application for setting aside of the abatement and substitution of legal representatives of the deceased defendant. Indisputably, the application for bringing on record the legal representatives of defendant No,2 was made after periods fixed in Articles 171, 177 of the Limitation Act, 1908. Therefore, the applicant had to satisfy the Court that there was sufficient cause for delayed approach to it. Section 5 of the Limitation Act was applicable. In the above circumstances, it was to be seen, whether the plaintiff evinced remissness or negligence for ascertaining the factum of death of defendant No,2 or that he suffered from a bona fide mistake or unintentional error or that the plaintiff acted mala fide for causing injury to the defendants' interests. Whether ignorance of death of a party was sufficient cause under Order XXII, Rule 9(2) of Civil P.C. For condoning delay, a Division Bench of this Court in Punjab Province-v.
17. Sultan Khan and others PLD 1959 (W.P.) Lahore 500, after noticing the previous case-law said: "We have carefully read these rulings and we are of the opinion that no hard and fast rule can be laid down in this matter and that each case must be decided on its own facts. However, in view of the provisions of law in this regard, it appears to be the duty of a litigant to keep himself informed of the existence of his adversary, but if he can satisfy the Court that in view of the circumstances of the case, he could not have known of the death of his opponent and there was no negligence or want of diligence on his part, then it is a sufficient cause within the meaning of the provisions of Order XXII, rule 9, C.P.C. To excuse the delay in filing an application for bringing upon the record the legal representatives of the deceased and setting aside the abatement." In the later portion of the judgment, the Court observed that the term "sufficient cause" should be liberally construed so as to advance the cause of justice. This rule of law was approved by the Supreme Court in Abdul Jabbar and others v. Abdul Waheed Khan and others PLD 1974 SC 331.
18. ' Parties lived in distant cities. Property was situated at Rawalpindi. Plaintiff and defendant No,1 were deeply involved in litigation over the property and were at loggerheads. Therefore, defendant No,1 was not expected to disclose information about the death of defendant No,2 to the plaintiff. He observed discreet silence on it. Delay favoured him. His counsel also did not inform the Court about the death of defendant No,2. Similarly, counsel for defendant No,2 kept quiet and represented him at the trial of the suit, despite his passing away long before. Possibility, that the learned counsel were unaware of demise of defendant No,2 could not be foreclosed. A contrary inference could also be gathered. In these circumstances, the omission was unintentional and sufficient cause was shown for setting aside of the abatement on account of demise of defendant No,2, under Order XXII, rule 9, Civil P.C. In my opinion, it was eminently a fit case in which the lower Courts should have exercised powers under Order XXII, rule 9, Civil P.C. Read with section 5 of the Limitation Act and excused the delay for saving the decision of the suit on merits. Impugned orders could not, therefore, be sustained on the premises on which they proceeded and must be set aside. As the record justified setting aside of the abatement, it was unnecessary to examine, whether death of defendant No,2 led to a partial or total abatement of the suit.
19. ' For the foregoing reasons, I accept the revision and setting aside the judgments and decrees of the lower Courts, send the case back to the trial Court for disposal in accordance with law. The trial Court shall allow substitution of legal representatives of deceased defendant No,2, and, thereafter, proceed with the trial of the suit. As this litgation was going on for several past years without a decision on merits, the trial Court is directed to proceed with the trial with as little delay as possible.
20. There shall be no order as to costs in this Court.
21. Records be returned.