1. ' BASHARAT AHMAD SHAIKH, J.---This is a miscellaneous application moved by respondent Saghir Iqbal praying that the judgment passed by this Court on 8-11-1987 in appeal titled as above may be set aside. The ground on which this prayer is based, as incorporated in the application, is that Mirza Muhammad Aslam Beg, appellant in the appeal, died in November 1986, but when the judgment of this Court was recorded on 8-11-1987 his legal representatives had not been brought on record. It is submitted that the judgment in favour of a dead person cannot legally be passed. It is also contended that the appeal had abated.
2. ' The judgment which is sought to be recalled was pronounced in Civil Appeal No, 51 of 1985 which had been filed by Mirza Muhammad Aslam Beg and Revising Authority set up for scrutiny of some allotments of plots in New Mirpur Town. In the judgment which was challenged in this Court by way of aforementioned appeal, the High Court had accepted a writ petition filed by Saghir Iqbal respondent herein, with the result that the plot in dispute stood allotted to the said respondent. This Court set aside the order passed by the High Court and the case was remanded for fresh decision by the High Court. The High Court is still seized of the case.
3. ' In the application filed by Saghir Iqbal he stated that Mirza Muhammad Aslam Beg died in November 1986 but this fact was not accepted by the legal representatives of Mirza Muhammad Aslam Beg in the written objections filed by them. However, they did not indicate the date on which Mirza Muhammad Aslam Beg expired. The parties were asked to lead evidence to establish the date of death.
4. ' Saghir Iqbal, applicant before us, filed a number of documents and photographs and also produced his attorney Qazi Muhammad Bashir as a witness. The other party has not produced any evidence. It may also be observed that the statement of Qazi Muhammad Bashir remained without cross-examination because, as the record shows, the learned counsel was not present in spite of the fact that various adjournments had been granted at his request and the Deputy Registrar of the Court had to record the statement of Qazi Muhammad Bashir in his absence. The learned counsel then filed an application that the witness may be recalled and permission may be granted to cross-examine him. The Deputy Registrar allowed the request and the witness was recalled. The case was then adjourned for a number of times. On 29th of December, 1991 the witness was present and it is recorded in the order of that date that the case was called 4 times with an interval each of one hour but no one was present and thus the opportunity of cross-examining was not availed of.
5. This order passed by the Deputy Registrar was not challenged by way of appeal to the Court and became final. The learned counsel, therefore, did not raise any grievance about the validity of that order in his arguments before us.
6. ' This has led to two significant consequences. One, that all the documents on the file have been exhibited without objection. In such a situation no objection can be subsequently raised about the admissibility of those documents. The other consequence is that when Qazi Muhammad Bashir appeared as a witness he was not cross-examined. If there is no cross-examination of a witness on a certain point the Courts can validly infer that the statement has been accepted as true. These two facts are important factors of the determination of the point in dispute in the case.
7. ' Let us first take the documentary evidence into consideration. Exh.PA is an attested copy of Order No, 2016/4/A-3, dated 1st of September, 1985 which is addressed to Mrs. Mirza Muhammad Aslam Beg and a copy has been endorsed to Chowkidar of Armed Forces Graveyard, Karachi wherein it is stated that the Station Commander had granted permission to bury the dead body of Mirza Muhammad Aslam Beg in the graveyard and grave No, 208 in Block No, 'E' had been allotted for that purpose. A copy has been attested by affixing the stamp and signatures of a Major who is a G.S.O. In the Station Headquarters, Karachi. This attestation is on a photostat copy in which the signature of a Lt.-Col. Who signed for the Station Commander can also be seen. Exh. PB is the similar copy of a letter conveying sanction of the Station Commander for the construction of 'Pacca' grave of the father of Rear Admiral Muhammad Naeem Beg of Pakistan Navy to whom the letter is addressed. These two documents are official documents and there is no doubt about their genuineness. It was open to the heirs of the deceased Mirza Muhammad Aslam Beg to have brought the evidence on record to show that these documents were not genuine but it has not been done. Then there ae photographs Exh. PC, Exh. PC/1 and Exh. PC/2 of the grave of Mirza Muhammad Aslam Beg. It can be clearly seen from these photographs that there is an inscription on the grave that Mirza Muhammad Aslam Beg son of Mirza Sardar Beg died on 31-8-1985. It was contended by Ch. Muhammad Taj that Qazi Muhammad Bashir in his statement did not say that these photographs had been taken by him nor had the person who had taken the photographs been produced. We find that there is force in this contention but even if these photographs are excluded from consideration it makes no difference in presence of the documents mentioned above. The most important aspect of the matter is that the heirs of Miraz Muhammad Aslam Beg have accepted that Mirza Muhammad Aslam Beg has died but have nowhere stated the date on which his death occurred. Mere denial of the date of death raises a presumption which heavily supports the conclusion that the only date which has been brought on record is the correct date.
8. Qazi Muhammad Bashir has stated in his statement on oath that his inquiries have revealed that Mirza Muhammad Aslam Beg died on 31st of August, 1985. Since there is no cross-examination on this point this statement also corroborates the documentary evidence. The conclusion, therefore, is that Mirza Muhammad Aslam Beg died on 31st August, 1985, while the appeal by this Court was accepted on 8-11-1987.
9. ' This Court has the inherent powers to recall an order or to rehear a Cause and even to treat a judgment as nullity if facts of a case so warrant. In a case reported as 'Muhammad Swaleh and another v. Messrs United Grain & Fodder Agencies' (PLD 1964 SC 97) it is observed as follows:-- "It should be remembered that if an order be a nullity then every Court before whom it is brbught is not only entitled, but bound to ignore it:If it be held that the taking up of case not on the date fixed, but on any other day, renders the proceedings totally void, the result would be that even the Court of a 3rd Class Civil Judge could hold that the High-Court or the Supreme Court in taking up a case on particular day without proper notice acted without jurisdiction and the judgment delivered was a nullity."
10. ' This rule was followed by this Court in 'Habib Ullah v. Mehmood' (1984 CLC 309). In this context the judgment of Supreme Court in 'Evacuee Trust Property Board v. Sh. Hameed Elahi and another' (PLD 1981 SC 108) is also relevant, ' Another argument raised by Ch. Muhammad Taj was that there was another appellant in the appeal namely the revising authority and the appeal could not be dismissed in its presence. We do not find any force in this contention because both Mirza Muhammad Aslam Beg and the Revising Authority were necessary parties and if one necessary party is not impleaded in an appeal the appeal is not maintainable. We may refer to Nawab Karim v. The Chief Settlement Commissioner and 2 others' (1970 SCM R 72) wherein the Supreme Court of Pakistan observed that the plea that since the Chief Settlement Commissioner was also a party the appeal would not abate was "wholly fantastic." The correct position is that due to the death of Mirza Muhammad Aslam Beg the appeal had abated to his extent and it became imperfectly constituted in absence of a necessary party.
11. Consequently the appeal entailed dismissal.
12. ' As a result the judgment of this Court in Civil Appeal No, 51 of 1985 titled 'Mirza Aslam Beg and another v. Saghir lqbar is treated as a nullity and is recalled. Consequently it is ordered that the aforesaid appeal shall stand dismissed.
13. ' SARDAR MUHAMMAD ASHRAF KHAN, J.---I have had the privilege of going through the draft judgment proposed to be delivered in this case by me learned brother Mr. Justice Basharat Ahmad Shaikh but in the facts of the case I am unable either to agree or disagree with it as. I am of the view that no valid and legal judgment can be recorded at this stage and fresh proceedings are required to be taken for making a lawful judgment. The perusal of the record of the case would show that the proceedings so far taken in this case are not lawful and suffer from such defects and illegalities in the presence of which no legal judgment can be recorded and the same are enumerated below.
14. ' Throughout the proceedings of the case Ch. Muhammad Taj, Advocate appeared as counsel for the legal representatives of Mirza Muhammad Aslam Beg but the examination of the record reveals that no valid and lawful power of attorney executed by the aforesaid persons was filed. The Vakalatnama filed by the aforenamed Advocate is executed on 27-4-1989 whereas this miscellaneous application was filed in this Court on 30-11-1989. Thus, it is obvious that Vakalatnama placed on record was executed long before this application was presented to this Court. At a time when no case against the legal representatives of Mirza Muhammad Aslam Beg was pending before this Court the question of appointment of Ch. Muhammad Taj, Advocate as their counsel by them in the case did not arise. For the above reason the proceedings taken against the legal representatives of Mirza Muhammad Aslam Beg were illegal and in violation of the rules of procedure applicable in the matter.
15. ' Through this application recall of the judgment made in Civil Appeal No,51 of 1985 is sought on the ground that the same was recorded on the date when the same had abated on account of failure of the legal representatives of Mirza Muhammad Aslam Beg to bring themselves on record within time prescribed by law in the aforesaid appeal. Mirza Muhammad Aslam was not the only appellant but the Revising Authority through its Chairman (M.D.A.) was also the appellant in view of which fact no proceedings could be taken without impleading the said Revising Authority as a respondent and giving it the notice of this application but this was not done and the proceedings were taken without either making the said Authority the party to the case by the applicant or summoning it by the Court. In the absence of above Authority the proceedings in the case are not lawful and no valid and legal judgment can be recorded.
16. ' In order to determine as to whether or not the aforesaid appeal in this case had abated due to non-impleadment of the legal representatives of one of the appellants namely Mirza Muhammad Aslam Beg the parties were directed to produce the evidence with regard to the date of death of the said appellant. The evidence produced on behalf of the petitioner was recorded by the Deputy Registrar, Supreme Court. The above Officer of the Court was not authorised and empowered to record evidence of any of the party to the case on behalf of the Court because such a function does not fall within the ambit of his owners conferred by Order III, rule 9 of Azad Jammu and Kashmir Supreme Court Rules, 1978 with the result that no finding could be legally given on the evidence recorded by him. It may not be out of place to mention here that the Bench of the Court has no powers to authorise the Registrar or the Deputy Registrar to record the evidence of the witnesses on its behalf.
17. ' For the foregoing reasons no judgment, in my view, can proceed on the basis of the proceedings taken in this case and fresh proceedings are required to be taken in accordance with law.
18. Therefore, I without expressing any opinion on the merits of the case, order that notices to the legal representatives of Mirza Muhammad Aslam Beg, and the Revising Authority (M.D.A.) through its Chairman, which was one of the appellants in Appeal No,51 of 1985, be issued and then further proceedings be taken in accordance with law.
19. (Sd.) JUDGE COURT ORDER ' In view of difference of opinion between the members of the Bench the file is submitted to the learned Chief Justice for further orders in light of the provisions of the Constitution as amended.
20. (Sd.) JUDGE (Sd.)
21. AD HOC JUDGE.
22. ' MUHAMMAD YUNUS SURAKHVI, J.---This is a miscellaneous application moved by respondent Dr. Saghir Iqbal praying therein that the judgment passed by this Court on 8-11-1987 in appeal titled above may be set aside.
23. ' The ground made basis for setting aside the judgment as incorporated in the application is that Dr. Saghir Iqbal, respondent, alleged in the application that Mirza Muhammad Aslam Beg, appellant in the appeal died in November, 1986, whereas the judgment of this Court was recorded on 8-11- 1987. His legal representatives had not been brought on record. It was averred that the judgment in favour of a dead person could not have been passed and as such the appeal had abated.
24. ' The judgment which is sought to be recalled was pronounced in Civil Appeal No,51 of 1985 which had been filed by Mirza Muhammad Aslam Beg and Revising Authority (through Chairman, M.D.A.) as appellant. The High Court had accepted a writ petition filed by Saghir Iqbal respondent, herein, with the result that the plot in dispute stood allotted in favour of respondent. This Court set aside the order passed by the High Court and the case was remanded for fresh decision by the High Court. The High Court is still seized of the matter.
25. ' In the application filed by Saghir Iqbal he alleged that Mirza Muhammad Aslam Beg one of the appellants in the original appeal died in November,. 1986 but this fact was not accepted by the legal representatives of Mirza Muhammad Aslam Beg in the written objections filed by them.
26. ' The matter whether the appeal before this Court had abated and the decision of this Court was passed in favour of a dead person came up for hearing before a Division Bench of this Court consisting of my learned brothers Mr. Justice Sardar Muhammad Ashraf Khan and Mr. Justice Basharat Ahmad Shaikh. A difference of opinion arose between the learned members of the Bench and consequently the matter was referred to me for hearing and disposal.
27. ' I have had the opportunity of going through very able ,judgments recorded by my learned brothers namely Mr. Justice Sardar Muhammad Ashraf Khan dated 26-5-1993 and Mr. Justice Basharat Ahmad Shaikh dated 7-4-1993, respectively. My learned brother Mr. Justice Basharat Ahmad Shaikh vide his judgment dated 7-4-1993, opined that due to the death of Mirza Muhammad Aslam Beg, one of the appellants in the original appeal, the appeal had abated to his extent and it became imperfectly constituted in absence of necessary party. As a result of the aforesaid finding in the view of my learned brother Civil Appeal No,51 of 1985 titled ' Mirza Aslam Beg v. Saghir Iqbal' was treated as a nullity and the judgment was recalled and consequently the appeal was dismissed.
28. ' In accordance with the judgment recorded by my learned brother Mr. Justice Sardar Muhammad Ashraf Khan (as he then was) vide his order dated 26-5-1993, his Lordship without expressing any opinion on the merits of the case ordered that notices to the legal representatives of Mirza Muhammad Aslam Beg and the Revising Authority through its Chairman which was one of the appellants in Civil Appeal No,51 of 1985 be issued and then further proceedings be taken in accordance with law. In the estimation of my learned brother Mr. Justice Sardar Muhammad Ashraf Khan without the procedure suggested by his Lordship no valid and legal judgment could be recorded. The main planks of attack recorded by my learned brother Mr. Justice Sardar Muhammad Ashraf Khan in his judgment are precisely threefold which are enumerated below:--
(i) Throughout the proceedings of the case Ch. Muhammad Taj, Advocate (as he then was) appeared as counsel for the legal representatives of Mirza Muhammad Aslam Beg but the examination of the record reveals that no valid and lawful power of attorney executed by the aforesaid persons was filed. The Vakalatnama filed by the aforesaid Advocate is executed on 27-4- 1989 whereas the miscellaneous application was filed in this Court on 30-11-1989. Thus in the estimation of my learned brother it was obvious that Vakalatnama on record was executed long before the Miscellaneous application was presented before this Court;
(ii) that in order to determine as to whether or not the aforesaid appeal in the case had abated due to non-impleadment of legal representatives of one of the appellants, namely, Mirza Muhammad Aslam Beg, the parties were directed to produce the evidence with regard to the date of death of the said appellant. The evidence produced on behalf of the petitioner (respondent in the miscellaneous application) was recorded by the Deputy Registrar, Supreme Court. The above officer of the Court was not authorised and empowered to record evidence of any of the parties to the case on behalf of the Court because such a function does not fall within the ambit of his powers conferred by Order III, rule 9 of the Azad Jammu and Kashmir Supreme Court Rules, 1978 with the result that no finding could be legally given on the basis of evidence recorded by the Deputy Registrar. In the estimation of my learned brother Mr. Justice Sardar Muhammad Ashraf Khan, the Court had no powers to authorise the Registrar or the Deputy Registrar to record evidence of witnesses on its behalf; and
(iii) that the miscellaneous application on the basis of which the recall of the judgment recorded in Civil Appeal No,51 of 1985 is sought on the ground that the same was recorded on the date when the same had abated on account of failure of legal representatives of Mirza Muhammad Aslam Beg to bring themselves on record within time prescribed by law, who was not the only appellant but the Revising Authority through its Chairman (M.D.A.) was also the appellant in view of which no proceedings could be taken without impleading the said Revising Authority as respondent and giving it the notice of this application but this was not done and proceedings were taken without either making the said authority the party to the case by the applicant or summoning it by the Court. In absence of the above authority the proceedings in the case were not lawful and no valid and legal judgment could have been recorded.
29. ' In view of the above findings it was directed by his Lordship Mr. Justice Sardar Muhammad Ashraf Khan to issue notices to the legal representatives of Mirza Muhammad Aslam Beg and the Revising Authority through its Chairman which was one of the appellants in Original Appeal No, 51 of 1985 and then further proceedings be taken in accordance with law as said in the earlier part of this judgment.
30. ' Having gone through the judgments recorded by my both the learned brothers and the reasons advanced therein I without expressing myself on the merits of the case one way or the other, propose to deal with the grounds of attack recorded by my learned brother Sardar Muhammad Ashraf Khan in his judgment:
(i) So far as ground No,1 is concerned, the record that Petition for Leave to Appeal in Civil Appeal No, 51 of 1985 was filed on behalf of Mirza Muhammad Aslam Beg and Revising Authority through its Chairman (M.D.A.) by Ch. Muhammad Taj, Advocate (as he then was) on 17-7-1985. The Vakalatnama executed by Mirza Muhammad Aslam Beg through his attorney Muhammad Ayub is appended with the file of this Court at page No,67, similarly the power of attorney executed by Secretary M.D.A. In favour of Ch. Muhammad Taj, Advocate is also appended with the file at page No,
66. On both the power of attornys the stamps affixed appear to be of'17-7-1985 and 16-7-1985 respectively. Therefore, going through these power of attornys it cannot be believed that throughout the proceedings Ch. Muhammad Taj had been appearing on behalf of legal representatives of Mirza Muhammad Alsam Beg and not on behalf of Mirza Muhammad Aslam Beg or the Revising Authority. When the miscellaneous application with regard to abatement proceedings was moved by Saghir Iqbal then Ch. Muhammad Taj, the learned counsel put up his appearance for the first time on the basis of a power of attorney dated 27-4-1989 executed by Mst.
31. Masuda Begum, N. Naeem Beg, Tasneem Mirza, Saira Parveen and Taira Parveen, the legal representatives of Mirza Muhammad Aslam Beg and objection on the abatement application were duly filed by Ch. Muhammad Taj, Advocate. The interim orders recorded in the file also show that the learned Advocate has been putting up his appearance on behalf of the legal representatives of Mirza Muhammad Aslam Beg. The orders dated 29-1-1992 and 22-2-1992 are reproduced below for proper perception of the matter:-- "PRESENT: ' Ch. Muhammad Sharif Tani, Advocate for Applicant Saghir Iqbal, ' Ch. Muhammad Taj, Advocate for the legal representatives of Mirza Aslam Beg.
32. ' ORDER: ' Evidence has been recorded. To come up for arguments on 22-2-1992.
33. ' Mirpur, (Sd.)
34. ' 29-1-1992 Ad hoc Judge."
35. "PRESENT: ' Qazi Muhammad Bashir attorney for Saghir Iqbal, Ch. Muhammad Taj, Adyocate for the legal representatives of Mirza Aslam Beg.
36. ORDER: ' Ch. Muhammad Taj prays for an adjournment. To come up for arguments on 21-4-1992.
37. ' Mirpur, (Sd.)
38. ' 22-2-1992. Ad hoc Judge."
39. ' Similarly orders dated 21-4-1992 and 25-4-1992 are also reproduced below:-- ' PRESENT: ' Ch. Muhammad Sharif Tariq, Advocate for Saghir Iqbal.
40. ' Ch. Muhammad Taj, Advocate for legal representatives of Mirza Aslam Beg.
41. ' ORDER: ' Ch. Muhammad Sharif Tariq prays for a short adjournment which is allowed. To come up for arguments on 25th instant.
42. ' Mirpur, (Sd.)
43. ' 21-4-1992. Ad hoc Judge."
44. ' "PRESENT: ' Ch. Muhammad Sharif Tariq, Advocate for Saghir Iqbal.
45. ' Ch. Muhammad Taj, Advocate for legal representatives of Mirza Aslam Beg.
46. ' ORDER: ' Due to some reasons I would not like to hear this case today. To come up for arguments on 27th instant.
47. ' Mirpur, (Sd.)
48. 25-4-1992. Ad hoc Judge."
49. All the aforesaid orders were recorded by my learned brother Mr. Justice Basharat Ahmad Shaikh as a Judge in Chamber. So, by no stretch of imagination it can be said that Ch. Muhammad Taj had not been pursuing the case on behalf of the legal representatives of Mirza Muhammad Aslam Beg. Thus the proceedings initiated against the legal representatives of Mirza Aslam Beg cannot be said to be invalid or illegal as such this ground of attack by my learned brother Mr. Justice Sardar Muhammad Ashraf Khan in view of critical examination of record proves otherwise.
(ii) The second point in seriatim is with regard to the competence of Registrar or Deputy Registrar to record the evidence on the miscellaneous application pertaining to the abatement proceedings.
50. Dealing with the aforesaid matter it will be useful to reproduce some of the orders and rules of Azad Jammu and Kashmir Supreme Court Rules, 1978. Order XV, rule 8 of the Supreme Court Rules, 1978 (hereinafter to be referred as the rules) is as under:-- "an application to bring on record the legal representatives of any appellant or respondent who has died or suffered a change of status shall be made within ninety days of such occurrence..."
51. ' Order I, rules 3 and 4 read as under:- "R.3. Whereby in these rules or by any order of the Court any step is required to be taken in connection with any cause, matter or appeal before the Court, that step shall, unless the context otherwise requires, be taken in the Registry or in the appropriate Branch Registry.
52. ' Rule.4. Where any particular number. Of days is prescribed by these Rules, the same shall be computed in accordance with the provisions of the Limitation Act, 1908 (IX of 1908)."
53. ' Order V, rule 1 speaks in the following terms:- "The powers of the Court in relation to the following matters may be exercised by a Single Judge sitting in Chambers but subject to reconsideration, at the instance of any aggrieved party, by the Full Court, which may include the Judge who dealt with the matter: ' Sub-rules (1) to (23) xx xx xx xx xx ' Sub-rule 24. Application for bringing on record the legal representatives of a deceased party."
54. ' Out of the abovequoted Orders and Rules Order 1, rule 3 in clear terms indicates that by these rules or any orders if any step is to be taken in connection with any cause or appeal before the Court that step shall be taken, unless context otherwise requires, in the Registry or the appropriate Branch Registry.
55. Order V, rule 1 provides that the powers of the Court in relation to the B matters mentioned below including the one existing at serial No, 24 may be exercised by the Judge in Chamber.
56. ' On the file of Miscellaneous Application No, 22 of 1989 relating to abatement . Proceedings order dated 20-2-1991 has been recorded by my learned brother Mr. Justice Basharat Ahmad Shaikh which is reproduced below:-- "PRESENT: ' Ch. Muhammad Sharif Tariq, Advocate for the Petitioner, Ch. Muhammad Taj, Advocate for the Respondent.
57. ORDER: ' Ch. Muhammad Taj has appeared today and stated that since there was no Court sitting on 30th January he was under the impression that the case would be adjourned to the next circuit sitting.
58. Due to this misunderstanding he could not appear before the Deputy Registrar. He filed objections and also Vakalatnama, which I have permitted him to do in view of the explanation given by him. It has been contended in the objections filed by Ch. Muhammad Taj that the present application is not maintainable. I would like to hear the learned counsel for the parties on this point.
59. ' To come up for arguments on 23-4-1991."
60. ' Similarly the order dated 12-6-1991 has also been recorded by Mr. Justice Basharat Ahmad Shaikh, as a Judge in Chamber which reads as under:-- "ORDER ' Interim order has been announced about the maintainability of the application. The parties may adduce proof in support or opposition of the application before the Deputy Registrar on the date to be fixed by him. The case shall be set down for hearing in October. Order dated 29-1-1992 is also recorded by my learned brother Mr. Justice Basharat Ahmad Shaikh, as a Judge in Chamber and the same is reproduced below:-- "PRESENT: ' Ch. Muhammad Sharif Tariq, Advocate for the applicant Saghir Iqbal.
61. ' Ch. Muhammad Taj, Advocate for the legal representatives of Mirza Aslam Beg.
62. ' Evidence has been recorded. To come up for arguments on 22-2-1992.
63. Mirnur, (Sd.)
64. 29-1-1992. Ad hoc Judge." and lastly vide order dated 19-12-1992 arguments on the miscellaneous application were heard by a Bench comprising of Mr. Justice Sardar Muhammad Ashraf Khan and Mr. Justice Basharat Ahmad Shaikh which reads as under:-- "Arguments heard. Judgment reserved."
65. ' The aforesaid various orders reproduced in this part of the judgment reveal clearly and in my humble estimation firstly the Registrar or the Deputy Registrar had the powers under the rules to record the evidence on miscellaneous application relating to the abatement proceedings and the same was rightly done by him in the instant case. Secondly even if it is assumed for the sake of arguments that the Deputy Registrar had no power to record the evidence then the perusal of various orders recorded by the learned Judge in Chamber reveals that the case was referred to the Deputy Registrar for recording the evidence by the Judge sitting in Chamber because the same procedure is permissible under rules; and lastly I may refer to Order XLIII, rules 1 and 2 of the rules for proper perception of the matter. Order XLIII, rule 1:-- "The Court or the Chief Justice or the Judge thereof may, for sufficient cause shown, excuse the parties from compliance with any of the requirements of these Rules, and may give such directions in matters of practice and procedure as it shall consider just and expedient."
66. Rule 2: "An application to be excused from compliance with. Any of the requirements of these Rules shall be addressed in the first instance to the Registrar, who shall take the directions of the Court or of the Chief Justice or the Judge thereof and communicate the same to the party or parties, as the case may be."
67. So, the plain reading of the rules makes it clear that a Judge in Chamber can send a cause relating to the abatement proceedings to the Deputy Registrar for recording of evidence. It may also be emphasised that the learned counsel appearing on behalf of the legal representatives of Mirza Muhammad Aslam Beg duly submitted himself to the jurisdiction of the Deputy Registrar who had been seeking various adjournments to produce the evidence on the application from his side but ultimately could not produce any evidence at all. It is a cardinal principle of law that if a particular person or party submits himself or itself to the jurisdiction of a particular authority, later on, merely because of the fact that an adverse order has been passed against him or it, cannot grumble or grouse upon the order to which he or it previously surrendered himself or itself.
68. ' In my humble estimation Mr. Justice Sardar Muhammad Ashraf Khan on the aforesaid two points was not properly assisted by the learned counsel appearing on behalf of the parties and as such these points escaped the notice of his Lordship. So, I have formed the view that in view of the material brought on record and the position of law on the subject I am in humble disagreement with the view taken by my learned brother Mr. Justice Sardar Muhammad Ashraf Khan on these two points.
69. ' So far as the third point raised by Mr. Justice Sardar Muhammad Ashraf Khan, is concerned that in the Original Appeal No, 51 of 1985 the appeal had been filed not only by Mirza Muhammad Aslam Beg but also by the Revising Authority as one of the appellants and in the estimation of his Lordship on account of abatement of appeal against Mirza Muhammad Aslam Beg the appeal would not abate against the Revising Authority who was neither impleaded as party in the miscellanoue application filed by Saghir Iqbal nor any summon was issued to hear the said party, appears to have great substance and has a direct bearing on the matter in hand. The view expressed by my learned brother Mr. Justice Baharat Ahmad Shaikh that due to the death of Mirza Muhammad Aslam Beg the appeal 'would abate as against him and it would become imperfectly constituted in his absence because he was a necessary party is correct as a legal principle but the question of appeal being imperfectly constituted in absence of necessary party, would arise if the Revising Authority had been impleaded as one of the respondents in the miscellaneous application but it has not been done so. It is no doubt correct that the original appeal was filed by two appellants namely Mirza Muhammad Aslam Beg and Revising Authority through its Chairman (M.D.A.) On account of appeal having abated against Mirza Muhammad Aslam Beg, it would not abate against the Revising Authority. It is needless to repeat that Saghir Iqbal the applicant in the miscellaneous application did not implead the . Revising Authority through its Chairman in his application so it was enjoined upon and legally it was an essential element of judicial prudence to implead the Revising Authority through its Chairman (M.D.A.) as non-applicant in the application and to issue it notice for filing objections on the miscellaneous application.
70. ' My learned brother Mr. Justice Sardar Muhammad Ashraf Khan, while concluding his judgment thought it fit to resummon both the legal representatives of Mirza Muhammad Aslam Beg and the Revising Authority through its Chairman and to provide them an opportunity for filing objections and to call the parties for producing evidence in support of and against the allegations made in the application.
71. ' After careful perusal of the record and examining the order sheets in minute details I am of the view that summoning the representatives of Mirza Muhammad Aslam beg will be a sheer waste of time because they had been appearing in the miscellaneous application, and their' counsel Ch. Muhammad Taj, Advocate (as he then was) had been putting up his appearance on behalf of the legal representatives of Mirza Muhammad Aslam Beg deceased. It would not be out of place to mention here that the legal representatives of Mirza Muhammad Aslam Beg were summoned through proclamation and later on the power of attorney on their behalf was filed by Ch. Muhammad Taj, Advocate but ultimately they absented themselves from the proceedings. When the matter came up before me I could not find out any ex parte order against the other legal representatives of Mirza Muhammad Aslam Beg except Naeem Beg who is represented before me by Mr. Abdul Latif Dutt, Advocate. On my enquiry Mr. Abdul Latif Dutt, the learned counsel for Mirza Naeem Beg, one of the legal representatives of Mirza Muhammad Aslam Beg, promised to contact the other legal heirs of the deceased Mirza Muhammad Aslam Beg and to file Vakalatnama on their behalf, but despite the opportunity being given to him he expressed his helplessness in the matter. So I accordingly passed an ex parte order against the other legal heirs of Mirza Muhammad Aslam Beg except Mirza Naeem Beg and then on the same day i,e, on 27-11-1994, arguments were heard on the application. As both the learned counsel for the parties expressed their willingness to argue the case. Thus, on the basis of analysis made in the earlier part of this judgment I am of the opinion that to resummon the other legal representatives of Mirza Muhammad Aslam Beg who have been ordered ex parte and to rehear them on the application will be a sheer waste of time.
72. Therefore, I am unable to agree with this part of the judgment of my learned brother Mr. Justice Sardar Muhammad Ashraf Khan with all my respect to his Lordship. However, so far as his Lordship's opinion with regard to resummoning the Revising Authority and hearing it is concerned, I am in full agreement with the view expressed by his Lordship.
73. ' Mr. Muhammad Sharif Tariq, the learned counsel for the applicant Saghir lqbal vehemently contended that the original power of attorney filed by Ch. Muhammad Taj, Advocate on behalf of Mirza Muhammad Aslam Beg through his attorney Muhammad Ayub does not give the learned counsel competence under law to file the petition for leave to appeal as no power of attorney was appended with the file. The learned counsel also maintained that on the basis of evidence brought on record the appeal abates as a whole as the legal representatives of Mirza Muhammad Aslam Beg were not brought on record within the time prescribed by law.
74. ' On the other hand Mr. Abdul Latif Dutt, the learned counsel appearing on behalf of one of the legal representatives of Mirza Muhammad Aslam Beg strenuously argued that the Revising Authority was not given the opportunity to file its objections on miscellaneous application relating to the abatement proceedings. In the estimation of the learned counsel the proceedings recorded by the Deputy Registrar merit no consideration as any proceedings taken by him are violative of law.
75. After hearing arguments of the learned counsel for the parties I am of the view that the points argued by both the learned counsel for the parties relate to the merits of the case on which at the present moment I am unable either to agree or to disagree with the finding recorded by my learned brother Mr. Justice Basharat Ahmad Shaikh.. That of course is possible only if and when the Revising Authority one of the appellants in the original appeal is given notice and an opportunity is provided to it to file objections and to lead evidence if it so wants on the miscellaneous application.
76. ' In this view of the matter I am of the considered view that there is no need for resummoning and hearing the objections from the other legal representatives of Mirza Muhammad Aslam Beg for the reasons recorded in the earlier part of this judgment. However, I agree with the view taken by my learned brother Mr. Justice Sardar Muhammad Ashraf Khan to the extent that Saghir Iqbal applicant is directed to implead the Revising Authority through its Chairman (M.D.A.) as one of the non-applicants in his application and to provide sufficient Tulbana so that the Revising Authority may be summoned to file any objections on the miscellaneous application. If the Revising Authority files objections and controverts the allegations made in the miscellaneous application then the Deputy Registrar, Branch Registry, Mirpur is directed to get the objections filed by the Revising Authority and allow both the parties to produce evidence in support of their respective claims within a period of two months from the date of announcement of this judgment. Since the matter has already been prolonged one way or the other, the Deputy Registrar shall see that the file is completed within a period of two months from the date of announcement of this judgment and after completion of the same it shall be placed before the Court for hearing of final arguments on merits.