This writ petition has been filed to challenge the orders of Rao Iqbal Ahmed Khan, Additional District Judge, Multan and of the Senior Civil Judge, Multan dated 20th of January, 1975 and 9th of November, 1974 respectively, by which they have failed to give effect to the total abatement of a suit filed by respondents Nos. 2 and 3 caused by the death of Abdul Rabim Khan, father of the petitioners.
2. The relevant facts are that Abdul Rahim Khan applied on the 25th of July, 1960 to the Collector, Multan for sanctioning a path through Square No. 57 in Chak No. 331/E. B., Tebsil Vehari District Multan in order to give him access to his area in Square Nos, 66 and 770. This application was allowed as the path was sanctioned by the Collector vide his order dated 3rd of September, 1962 (Annexure VI). Respondents Nos. 2 and 3 whose land was affected by this order filed an appeal and revision before the Additional Commissioner (Revenue), Multan and the Board of Revenue which were dismissed on the 9th of March, 1963 and 26th of August, 1963 respectively vide copies of the orders Annexures VII and VIII. After the order of the Collector and during the pendency of their appeal before the Additional Commissioner, respondents Nos. 2 and 3 who were affected by the orders, filed a civil suit on the 5th of February, 1963 against Abdul Rahim Khan, predecessor-in- interest of the petitioners. Since the order impugned in that suit was passed by the officers of the Provincial Government, the Provincial Government was also impleaded as a defendant. During the pendency of this suit Abdul Rahim Khan defendant died on the 12th of September, 1971. His legal representatives were not, however, brought on record within the period of limitation. The plaintiffs- respondents, therefore, submitted an application for deletion of the name of Abdul Rahim Khaa from the array of defendants and for permission to file an amended plaint. This application was allowed without any notice to the petitioners on the 9th of November, 1974, vide copy of the order of the Senior Civil Judge. Multan which has been filed as Annexure 111. The petitioners who are the legal representatives of Abdul Rahim Khan deceased-defendant No. 2 filed a revision petition against this order which was dismissed by Rao Iqbal Ahmad Khan, Additional District Judge, Multan. It was urged before him that with the death of Hafiz Abdul Rahim Khan, the plaintiffs-- respondents' suit had abated in toto and consequently the Senior Civil Judge instead of allowing the application for deletion of the name of defendant No. 2 ought to have declared the suit as having abated. The learned Additional District Judge did not agree with this contention. He held that the sole point for determination was whether the deletion of the name of defendant No. 2 would render a suit so ineffective as to make the adjudication of the point in controversy impossible. This dictum was taken into consideration in view of the principle laid down in Wali etc. v.
Mana Ali etc. (PLD 1965SC651). However, despite the fact that be held that the orders impugned in the suit were passed at the instance of defendant No. 2 and for his benefit, he held that the suit could be adjudiated upon even in the absence of Abdul Rahim or his legal representatives.
3. There can be no doubt that with the death of Hafiz Abdul Rahim, the suit abated at least qua him.
The only question was whether abatemen was total or partial. It was held in the above case that "when a suit has abated as against the deceased defendant but for one reason or the other it cannot proceed at all the proper order to pass would be to dismiss the suit as against the remaining defendants".
4. The order of the learned Additional District Judge who was conscious of this principle is self- contradictory and he has acted without lawful authority by failing to take this principle to its logical conclusion. He found, and very correctly too, that the path was demarcated in order to benefit defendant No. 2 and on his application. Clearly, therefore, the said defendant was a necessary party in whose absence this suit could not proceed at all. I do not see how it could proceed in the absence of defendant No. 2 or his legal representatives after his death. By his death he did not cease to be an absolutely necessary party. The Government as stated above, had been impleaded as a party since impugned orders had been passed by its officers. The Government has no other interest in the suit. These points had not been considered by the learned Additional District Judge.
The learned trial Court does not appear to be conscious about the law of abate--ment which was applicable to the case since the Law Reforms Ordinance of 3972 was enforced after the suit qua Abdul Rahim Khan, defendant No. 2, had already abated. The principles of that Ordinance were not, therefore, applicahle to the facts of this case. $. 1, therefore, allow this petition with costs against defendants Nos. 2 and 3 and quash the orders of the learned Additional District Judge (Annexure V) and the Senior Civil Judge (Annexure III). The matter shall now be dealt with by the learned Senior Civil Judge who will pass the necessary consequential order. :A. A. H.Petition accepted.