1. CHAUDHRY MUHAMMAD TAJ, J.--This appeal, by leave of the Court, is directed against the judgment of the High Court dated 23-4-1994.
2. The facts necessary for the disposal of this appeal are that an evacuee Shop No. 98 situated in Muzaffarabad City was originally allotted in the name of Ghulam Muhammad Butt. The allotment was cancelled from his name and was allotted in favour of appellant No.l herein, on 2-2-1964. The said Ghulam Muhammad Butt filed an appeal before the Deputy Rehabilitation Commissioner against the cancellation and subsequent allotment which was dismissed and thereafter a revision filed before the Rehabilitation Commissioner also met the same fate. However, a further revision filed before the Custodian of Evacuee Property was accepted vide an ex parte order dated 14-10- 1985.
3. The appellants, herein, moved an application to set. aside the above ex parte order which was disallowed by the Custodian on 27-1-1987. Thereafter the appellants, herein riled a writ petition against Ghulam Muhammad Butt before the High Court of Azad Jammu and Kashmir challenging therein the validity of the Custodian's orders mentioned above. The said Ghulam Muhammad died during the pendency of the writ petition. An application to implead his legal representatives was submitted on 9-3-1988. The objections were filed by the opposite-party and it was pointed out by the respondents that Mst. Parveen Akhtar, the daughter of Ghulam Muhammad Butt, had not been impleaded, therefore, sought abetment of the writ petition. Again on 7-2-1987 the appellants, herein, filed another application to implead Mst. Parveen Akhtar. The application was posted for filing the objection by the opposite side. The same were not filed and the learned Judge in the High Court summoned the said Parveen Akhtar without deciding the controversy raised earlier by the respondents for not impleading all the legal heirs within time.
4. At the time of final arguments an objection was raised by the respondents, herein, that Mst.
5. Parveen Akhtar was not impleaded within time, therefore, the writ petition had abated. Considering the above objection the writ petition was dismissed as abated. Hence this appeal.
6. Mr. Rafique Mahmood Khan, the learned counsel for the appellants has raised the following points:- - (i)That the application to implead Mst. Parveen Akhtar as legal representative was not opposed by filing any objections. The application was accepted with the result the Court proceeded to summon her. Therefore, the delay, if any, was condoned in the circumstances of the case and the matter could not be reopened at the final stage of arguments; (ii)alternatively, he contended that all the legal representatives except one (Parveen Akhtar) are on record duly defending the whole case, therefore, in such circumstances the writ does not abate; (iii)that in a case a party fails to implead any legal representative the abatement if operated in d suit or writ, as the case may be shall constitute to the extent of the share of the party left out provided the share is ascertainable. Reliance in support of above contentions has been placed on `Barkat Ali and others v. Maula Bakhsh and others' (PLD 1972 SC 307) and `Mst. Naheed Fatima and another v. Settlement Commissioner, Hyderabad and others' (PLD 1976 Kar. 1197).
7. On the other hand Sh. Abdul Aziz and Mr. A.D. Khan, Advocates vehemently opposed the appeal and stressed on abatement in toto. The learned counsel for the respondents relied on 'Muhammad Ashraf and 8 others v. Azad Government of the State of Jammu & Kashmir and 13 others' (PLD 1985 SC (AJ&K) 102.
8. The application of the Code of Civil Procedure on writ proceedings is a proposition resolved by this Court for more than once. Reference may be made to 'Muhammad Ashraf and 8 others v. Azad Government of the State of Jammu and Kashmir and 13 others' (PLD 1985 SC (AJ&K) 102), wherein it was observed as follows:-- "Provision of Civil Procedure Code, 1908 apply to the proceedings under section 42 of Azad Jammu and Kashmir Interim Constitution Act, 1974."
9. To appreciate the controversy between the parties the relevant law, Order XXII, rule 4 of the Code of Civil Procedure as applicable in Azad Jammu and Kashmir, is usefully reproduced below:-- "4.--(1) Where one of two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants alone, or a sole defendant or sole surviving defendant dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit.
10. (2)Any person so made a party may make any defence appropriate to his character as legal representative of the deceased defendant.
11. (3)Where within the time limited by law no application is made under sub-rule (1), the suit shall abate as against the deceased defendant."
12. It is a settled proposition that in appropriate cases the application to implead legal representatives filed after limitation can be allowed if the circumstances so justify in this regard. For instance where death of a defendant/respondent cannot be known to the plaintiff/petitioner for his being resident in different places or the names and addresses of the legal representatives cannot be possibly traced out within time provided by law. In the instant case such situation not exist. The first application to implead the legal heirs was moved on 9-3-1988 upon which the objections were filed on 4-7-1988 wherein it was specifically pointed out by the respondents that Mst. Parveen Akhtar, the daughter of the deceased, is not impleaded. The second application filed to implead the said legal heir was moved nearly after 2 years and six months of the filing of objections, therefore, the circumstances justifying the impleadment after limitation are not available in this case and the cause shown in the application is not found sufficient. It may also be mentioned that the learned Judge of the High Court while summoning the legal heir (Mst. Parveen Akhtar) did not apply his mind to the pending controversy between the parties with regard to non-impleading of all the legal heirs within limitation and issue remained controversial between the parties. So there is a little force in the argument of Mr. Rafique Mahmood Khan that the matter could not be reopened at the time of final arguments. The authority referred to by the learned counsel `Barkat Ali v. Maula Bakhsh' (PLD 1972 SC 307) does not apply to the facts of the case as in that case the matter was decided in favour of impleadment by the High Court keeping in view the circumstances and also without any objection by the opposite side, the Supreme Court refused leave to entertain such objection at that stage of the case.
13. In the given circumstances when a single legal heir has been left out whereas all other legal representatives are defending the case will it constitute any abatement if so to what extent, in toto or partial. The counsel for the appellants laid a stress that in such circumstances no abatement at all is constituted. After giving deep thought we cannot subscribe to the argument advanced by the appellants' counsel in this regard for the reason that no decree or order can validly be passed against a person not a party in the proceeding. In other words it amounts to condemn a person without being heard. Therefore, the argument runs counter to law. The authority "Mst. Naheed Fatima and another v. Settlement Commissioner, Hyderabad and others" (PLD 1976 Kar.1197), referred to above carries distinct facts anti circumstances The next question arises whether for non-impleading a legal heir would abate the writ petition in toto or to the extent of the share of the heir not impleaded as legal representative. The law favours adjudication on merits, an adjudication will not be refused unless there exists some insuperable practical obstacle preventing it. If the interests of the parties are distinct, divisible, or ascertainable and the cause of action is not such that it can continue only in the presence of all the parties of their legal representatives, the suit, appeal or writ will abate partially. The suit, appeal or writ abates in its entirety if the interests of defendants or respondents are joint indivisible and not ascertainable. The proposition finds support from Full Bench case reported as 'Sant Singh and another v. Gulab Singh and others' (AIR 1928 Lah.
14. 573) wherein it was observed:-- "One of several respondents dying and legal representatives not joined in time--Granting relief against surviving respondents possible--Whole appeal does not abate."
15. Reference may also be made to 'Abdul Karim and 7 others v. Said Muhammad and 12 others' 1988 SCM R 1804 wherein the following observation has been made:-- "Share of deceased defendant of a definite. fraction (viz. 1/6th) and severable from others--Suit would abate qua his share alone and not as a whole."
16. Keeping in view the facts and circumstances of the case, the law as applicable does not warrant total abatement but to operate to the extent of the share of legal heir left out from impleading.
17. In view of the above discussion we accept the appeal and partly set side the order of the High Court, maintain the abatement to the extent of Mst. Parveen Akhtar's share. The case is remanded to the High Court -to decide afresh on merits in accordance with law with no orders as to the costs.