1. ' SARDAR SAID MUHAMMAD KHAN, C.J.---This appeal by leave, has been directed against the judgment and decree of the High Court dated 23-12-1992, whereby the appeal filed by the appellant, herein, against the judgment and decree of the District Judge, Kotli, dated 28-7-1990 passed in Suit No,216/74 filed by Ali Shan and others was dismissed.
2. ' The brief facts of the case are that a suit for possession in respect of land measuring 26 Kanals, comprising Survey Nos.217, 217 min, 218 and 218 min, situate in village Jarai, Tehsil Kotli, was filed by Muhammad Yaqoob, appellant herein, against Ali Shan, Mst. Sultan Begum and Said Muhammad, deceased, whose legal representatives have been shown as respondents Nos3 to 6. Thereafter, a counter-suit was filed for the land comprising Survey Nos.784, 832, 834, 838, 839, 842, 840 and 835 which was also situated in village Jarai, Tehsil Kotli, by Ali Shan, Mst. Sultan Begum and Said Muhammad, decided, against Muhammad Yaqoob, appellant herein, and pro forma respondents.
3. ' Both the suits were consolidated by the trial Court. It may be stated that difference between the survey numbers in the suit instituted by Ali Shah and others and one filed by Muhammad Yaqoob, appellant, was result of the new settlement. It may be stated that the acreage of suit land comprising survey numbers was also decreased as a result of the new settlement because a different standard of measurement was adopted in fresh settlement. Both the suits were disposed of by a Single Judgment by the trial Court. The suit filed by Muhammad Yaqoob, appellant, and pro forma respondents, was dismissed while that filed by Ali Shan and others against Muhammad Yaqoob was decreed. Muhammad Yaqoob, appellant filed an appeal against the judgment and decree of the trial Court to the District Judge, Kotli, who vide his judgment and decree dated 28-7- 1990 dismissed the appeal holding that the same had abated for failure of the appellant and pro forma respondents to bring the legal representatives of Said Muhammad, deceased, on the record within the period of limitation. The learned Judge, after recording the evidence, came to the conclusion that Said Muhammad died on 6-8-1987, after the arguments had been heard in the case but the judgment was not yet announced; the judgment was pronounced by the trial Court on 16-8-1987. An appeal was preferred by Muhammad Yaqoob against Ali Shan and others to the High Court against the findings of the trial Court. The appeal filed by Muhammad Yaqoob was partly accepted to the extent that the appeal filed by Muhammad Yaqoob, appellant and others, before the District Judge in respect of Suit No,192/74, instituted by Muhammad Yaqoob, had not abated in toto but only to the extent of fractional share of Said Muhammad, deceased, and, thus, a direction was given to the District Judge to decide the appeal pertaining to Suit No,192/74 afresh in the light of the observations made by the High Court. However, the High Court dismissed the appeal so far as the same pertaining to Suit No,216/74 which was filed by Ali Shan and others on the ground that the appeal of appellant, Muhammad Yaqoob, had abated in toto because the interests of the parties were indivisible in that appeal, as the question of adverse possession was involved in the Suit No,216/74 filed by Ali Shan and others. Muhammad Yaqoob, appellant, has come up in appeal before this Court assailing the findings of the High Court so far as the dismissal of the appeal of the appellant by the High Court pertaining to Suit No,216/74 filed by Ali Shan and others is concerned.
4. ' It has been contended by the learned counsel for the appellant that the High Court has committed an error in holding that the appeal filed by Muhammad Yaqoob so far as the same pertained to Suit No,216/74 filed by Ali Shan and others and abated and the decree passed in favour of Alli Shan and others by the trial Court in that suit remained intact.
5. ' During the pendency of appeal, Ch. Muhammad Azam, Advocate filed an application in this Court on behalf of pro forma respondents Nos.7 to 9, namely, Mst. Sakina Begum, Mst. Amir Begum and Mst. Siftan Begum, the sisters of the appellant, contending that they were out of the country and did not appear in any of the Courts below in response to any process issued against them; thus, they were not aware of any suit against them; and that they never filed any suit along with Muhammad Yaqoob in the trial Court nor they were party in any proceedings in the appeals in the Courts below; and the acts purported to have been done on their behalf were alleged to be a case of forgery and a fraud by personification. They prayed that they may be permitted to seek appropriate remedy by filing a fresh suit. Along with the said application a sale-deed and a gift- deed have also been attached. It may be stated that the alleged forgery or personification has not taken place in this Court, rather Ch. Muhammad Azam, the learned counsel for the applicants pro forma respondents has stated that their interest in the present appeal is identical to one of the appellant; the alleged fraud was committed in the Courts below. In these circumstances, the application is misconceived because if the applicants pro forma respondents have any grievance regarding the alleged forgery or personification in the Courts below, they may seek their remedy in proper forum if the law so allows them. There is no question of giving any permission to institute a fresh suit by this Court.
6. ' The perusal of the record shows that Muhammad Yaqoob, appellant, submitted application in the District Court through his attorney that Said Muhammad had died and prayed that his legal representatives may be brought on the record. The application was signed by Muhammad Akbar, attorney of Muhammad Yaqoob, appellant. The objections to the application were filed by Ali Shan and others on 29-10-1988, wherein it was contended that Said Muhammad died on 6-8-1987 on the day of Eid-ul-Azha and the application submitted on behalf of Muhammad Yaqoob entailed dismissal as being time-barred. Consequently, the learned District Judge proceeded to frame issues and record evidence. He came to the conclusion that the date of death of Said Muhammad was in fact 6-8-1987. The perusal of the interim orders of the trial Court shows that the arguments in the case were heard on 4-7-1987 and the judgment was announced on 16-8-1987. It is evident that Said Muhammad died after hearing of arguments in the case. Thus, his suit cannot be regarded to have abated on that score. The appeal in the instant, case to the District Judge was filed by Muhammad Yaqoob on 14-9-1987 when Said Muhammad, deceased, had already died.
7. The judgment of the District Judge is also indicative of the fact that he treated the application as one under Order XXII, Rule 4, C.P.C.; it is for this reason that he has used the word {{URDU TEXT}}' in the impugned order. He did not appear to have adverted to the fact that in the instant case, the appeal was filed against a dead person and it cannot be said that the appeal was 'pending' at the time of the death of Said Muhammad for attracting the provisions of Order XXII, Rule 4, C.P.C. This aspect of the matter was agitated before the High Court wherein it was contended that the District Judge was competent to bring the legal representatives on the record under section 153 of C.P.C.
8. And also condoned the delay if he deemed it proper. The learned Judge in the High Court while dealing with the proposition has opined as under:--- "It may be pointed out here that in this case the learned District Judge should not have allowed the amendment in the cause title of the appeal or even returned the memo. Of appeal for amendment of cause title and representation. As gross negligence of the party has never been considered a sufficient cause for condo nation of delay. Inadvertently due to error appearing in the judgment of the trial Court in appeal, a dead person was mentioned in the line of respondents.
9. ' This error should have been rectified as early as possible by seeking permission to amend the cause title of the appeal. But on the basis of a lamb excuse, at a very belated stage, the attorney of Muhammad Yaqub moved an application for permission to implead legal representatives of deceased Said Muhammad in the line of respondents."
10. ' The High Court has expressed the view that even if the application for the correction of title of the appeal or for that matter for exercising the powers under section 153, C.P.C., the delay cannot be condoned because the applicant-appellant was guilty of gross negligence. It may be stated that the question as to whether the appellant was guilty of gross negligence or not; and whether the delay can be condoned so far as the legal representatives of Said Muhammad were concerned, was to be considered by the District Judge which he has not done. The learned Judge in the High Court has not taken notice of the fact that no limitation for filing an application has been prescribed under section 153, C.P.C. For the sake of convenience, section 153, C.P.C., is reproduced as under:--- "The Court may at any time, and on such terms as to costs or otherwise as it may think fit, amend any defect or error in any proceeding in a suit; and all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on such proceeding."
11. ' It is obvious that the power under section 153, C.P.C., is exercisable at `any time'. Obviously there is no question of limitation, though the prayer might be declined in case of gross negligence. In the instant case the application for bringing the legal representatives on the record was made after three months and 26 days. Whether it can be regarded to be a gross negligence or not is a question to be determined by the learned District Judge in the light of the attending circumstances of the case. A reference may be made to a case reported as Niamatullah Khan v. Ghulam Sarwar PLD 1979 Pesh. 31, wherein relying on Adusumilli Gopalakrishnayya v. Adivi Lakshmana Rao AIR 1925 Mad. 1210, it was observed that the Court was competent to exercise power under section 153, C.P.C., if an appeal is filed against a dead person and subsequently, his legal representatives are brought on the record. In the aforesaid case the judgment-debtor had died before the institution of the appeal as in the present case. The appellant was given a chance to amend his memorandum of appeal to bring the legal representatives of the deceased on record. He was also directed by the High Court to submit an application for condonation of delay before the District Judge. However, it was observed that the District Judge will go into the merits of the case if only the delay is condoned by him.
12. ' After giving my due consideration to the matter, I am of the opinion I that the view taken in Niamatullah Khan v. Ghulam Sarwar PLD 1979 Pesh. 31 which is also supported by a Full Bench case of Madras High Court, referred to above, is fully applicable to the facts of the case in hand. Thus, in the instant case there is no question of abatement of appeal or treating the application of appellant for bringing the legal representatives of Said Muhammad on record under Order XXII, Rule 4, C.P.C., because when Said Muhammad died there was no appeal pending before the District Judge.
13. ' As a result of finding by this Court in the present appeal, the view taken by the High Court so far as the same pertained to the question of abatement, is set aside and stands annulled. The District Judge shall decide the appeal filed by Muhammad Yaqoob afresh in toto.
14. ' In the light of what has been stated above, I accept the appeal, set aside the impugned judgment and decree of the High Court in toto and remand the case back to the District Judge to hear arguments in the light of the observations made above and decide the matter afresh according to law.
15. (Sd.)
16. Chief Justice ' BASHARAT AHMAD SHAIKH, J.---Broadly speaking I am in agreement with the judgment of the learned Chief Justice and I also agree that the case may be remanded to the District Judge to decide the case afresh in accordance with the observations made in the judgment. However, I regret that I am not able to,persuade myself about the applicability of section 153 of the C.P.C. To the facts of the present case. There are two views to meet the situation which obtains in the present case. One view which has been followed, by the learned Chief. Justice is that section 153 of the C.P.C. Can be pressed into service, while the other view is that section 151 of the C.P.C. Is applicable.
17. ' The view that section 153 is applicable was initially expressed by a Full Bench of the Madras High Court in a case reported as Gopalkrishnayya and another v. Lakshmana Rao AIR 1925 Mad. 1210 and was followed by the Peshawar High Court in Niamatullah Khan v. Ghulam Sarwar PLD 1979 Pesh.
31. In Peshawar case Abdul Hakeem Khan, C.J., after holding that section 153 was applicable, attached the following condition in his order:- " Needless to say that if the period of limitation is condoned it will be then only that the learned District Judge will go into the merits of the appeal presented before him."
18. ' Similarly the three learned Judges who decided Gopalakrishnayya's case also put the same condition. I may quote the learned Judges:--- "....In any case the Court will, if the appeal is out of time against the legal representative, have to excuse the delay in presentation before it can proceed to hear the appeal."
19. ' In the operative part it was observed that:--- "....The case will go back to the admission Court with an expression of our opinion that the Court has power to amend the cause-title but that is a matter for its discretion whether it should excuse the delay in presentation."
20. ' Section 153 lays down that power conferred on a Court by that section is exercisable without limit of time. The section may be again reproduced for the sake of ready reference:--- "153. The Court may at any time, and on such terms as to costs or otherwise as it may think fit, amend any defect or error in any proceeding in a suit; and all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on such proceedings."
21. ' Now when section 153 itself says that power can be exercised at any time, it seems to be 'a contradiction in terms that the party may be asked to furnish proof for condo nation of delay when no limitation is prescribed for an application under that section.
22. ' Apart from that, as I read, section 153 is applicable to amendments while in the category in which the present case falls the question really is about impleading of a new party. According to section 22 of the Limitation Act when a party is added it is deemed that the suit had been instituted against that party on the day on which that party was added. Although this section applies to a suit but the principle is equally applicable when a new party is added in an c appeal. When a party is impleaded as a respondent it should be deemed that the appeal was filed against that party on that date. However, in such a situation the appellant is free in law to explain the delay and section 5 of the Limitation Act is applicable.
23. ' The other view, namely, that section 151 of the C.P.C. Is applicable in such cases was expressed by a Division Bench of the Dacca High Court in Hali Mandal v. Khirode Bala Debya PLD 1961 Dacca 332.
24. The relevant portion of the judgment is found on page 336 in the following term:--- "....But where a person who was party to the suit and has been made a party to the appeal, but at the time of hearing the appeal it is discovered that such a person died before the appeal was preferred, as in the present case, it cannot be said that the Court is precluded from adding the heirs of the deceased as parties if the Court is satisfied that the ends of justice require it. We have gone through Labhu Ram's case and Chockalingam Chetty's case, and we do not find anywhere in the judgment of their Lordships of the Privy Council that a Court cannot invoke the aid of section 151 of the Code in a case like the present case. Where Order XLI, rule 20 does not apply in toto, that is all the reason why section 151 of the Code will apply in such cases."
25. ' The learned Judges composing the Division Bench followed a Judgment of Sulaiman, J., in the United Provinces v. Mst. Atiqa Begum 45 CWN 27 (F.C.) out of which the following passage was reproduced:--- "It is contended before us that the powers of an Appellate Court are restricted within the limits imposed by Order XLI, Rule 20, and that the same restriction is imposed on a Court hearing the second appeal under Order XLI, C.P.C. That rule no doubt permits of making a person respondent, who was a party to the suit in the original Court, and who has not been made a party to the appeal, but is interested in the result of the appeal. Obviously, this rule would not apply to the present case.
26. But the language of the rule does not show that it is exclusive or exhaustive so to deprive a Court of any inherent power which it may possess, and can exercise in special circumstances, and which has been saved by section 151, C.P.C."
27. ' I would respectfully follow that view and hold that if a person who had died before the institution of an appeal but in the appeal he is shown as a respondent an application would lie under section 151 of the C.P.C. To implead his legal representatives as respondents. However, such an application may be accepted only if the delay is condoned. I may observe that the learned Judge who decided the aforementioned cases in Madras and Peshawar High Courts also laid down the condition that legal representatives may be added only if the delay is condoned. I also reach the same conclusion and the only point on which I do not agree is that, in my view, section 151 and not section 153, C.P.C. Is applicable to such situations.
28. ' I am in agreement with the learned Chief Justice that the case may be remanded to decide the question of delay involved in filing of the application for impleading legal representatives. However, the learned Chief Justice has reached the conclusion that there is no question of limitation and it has to be decided whether the delay of three months and 26 days is a gross negligence or not while my view is that the delay has to be explained in light of section 5 of the Limitation Act.
29. ' I would, therefore, accept the appeal, set aside the impugned judgment and decree of the High Court and order that the case would be remanded to the District Judge to decide the question of