1. This second appeal by the plaintiff was from the judgment and decree of learned District Judge, Sargodha dated 10-6-1972 by which judgment of the trial Court holding the suit to have abated in toto was upheld.
2. 26 Kanals, 15 Marlas of land at Mauza Sandaral in Tehsil Khushab of District Sargodha belonged to Fateh Shah. He was murdered. Plaintiff was his sole successor. On 15-4-1970, plaintiff instituted a civil suit for possession of the land in dispute from the defendants. Upon being served, defendants appointed Malik Muhammad Azam, Advocate to conduct defence on their behalf. He filed his power of attorney in Court on 12-7-1971. It was also thumb-marked by Haitum defendant No.3. Upon filing of power of attorney by the counsel for the defendants, suit was adjourned to 27-1-1971 for submitting written statement by the defendants. On the adjourned date, written statement on behalf of the defendants including Haitum was filed in Court. It was dated 21-1-1971 and bore nine thumb-impressions. Thereupon, plaintiff filed replication.
3. Haitum defendant No.3 died on, 2-8-1970. His death was not disclosed in the written statement filed by the defendants. In fact, he was shown alive in the written statement and power of attorney filed on his behalf in Court. Upon discovery of his death, plaintiff submitted an application under Order XXII, Rules 4 and 9 of Civil P.C for setting aside of the abatement on account of his death and substitution of his legal-representatives given in the application. This application was filed, on 22- 3-1971. It was accompanied by an application under section 5 of the Limitation Act for condonation of the delay. An application under section 476, Cr.P.C. was also filed for prosecution of defendants for preparing false documents. Defendants resisted the applications for setting aside of the abatement and substitution of legal representatives of deceased Haitum, condonation of delay and their prosecution for forgery. However, it was not denied that on the power of attorney executed in favour of Malik Muhammad Azam, Advocate, thumb-impression of Haitum was appended. Similarly, it was not denied that written statement was filed on his behalf. All this was shown to have been done inadvertently. Application under section 476, Cr.P.C was dismissed by the trial Court.
4. On 6-5-1971, the trial Court framed following two issues on the application for setting aside of the abatement:-- (1)Whether, the application is within time?
5. (2)Whether, there are sufficient causes for setting aside the abatement?
6. On these two issues, parties gave evidence. On 9-9-1971, the trial Court held that application was not filed within limitation and plaintiff had shown no sufficient cause for setting aside of the abatement of the suit. In result, the suit was held to have abated in toto and, accordingly, dismissed. Appeal from the decision of the trial Court met with similar fate. It may be observed that the appeal filed against the order of the trial Court dated 9-9-1971 dismissing the application for proceeding against the defendants under section 476/195, Cr.P.C was allowed on 10-6-1972 by learned District Judge resulting in remand of the case to the trial Court for looking into the allegations and holding of a preliminary enquiry as it thinks necessary if considered expedient in the interest of justice.
7. Aggrieved of the order dismissing the appeal holding the civil suit for possession to have abated in its entirety, plaintiff came up in second appeal to this Court. It was admitted to hearing on 9-10- 1972.
8. Seen from the above, short point for decision in second appeal was, whether the suit abated and the abatement, whether it was partial or total deserved to be set aside. Upon hearing learned counsel for the parties and examination of the original records, I could not subscribe to the view which prevailed in the lower Courts. Instead of taking a firm and a serious view of alleged fabrication (I say alleged, because the matter was remanded tar the trial Court for holding of an inquiry on it), practised in the Court, of which the plaintiff was also a victim surprisingly, the plaintiff had suffered punishment resulting in dismissal of his suit. How could the poor plaintiff know about the death of Haitum, when he was shown alive on record of the trial Court. Not only that he was shown to have given power of attorney to Malik Muhammad Azam, Advocate but was also shown to have filed written statement alongwith the other defendants. It was a clear case of sharp practice. There was no dispute that Haitum was already dead, when power of attorney and written statement on his behalf were filed in the trial Court. It was true that application for setting aside of the abatement and substitution of the deceased defendant's legal representatives was filed beyond time but in the facts and circumstances of the case noted above, the delay deserved to be overlooked. Contrary course shall cause grave miscarriage of justice and punishment awarded shall be misplaced. In result of judgments of the lower Courts, defendants earned a premium and the plaintiff suffered undeserved punishment. 1, therefore, could not uphold the impugned judgments for those were clearly contrary to law.
9. Having regard to the aforesaid, impugned judgments and decrees of the lower Courts are set aside; legal representatives of Haitum deceased defendant No.3 are allowed to be brought on record and the suit is remanded to the trial Court for its trial and judgment in accordance with law.
10. Costs to be borne as incurred. Records shall be returned t~ the trial Court at Sargodha. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.