1. IRSHAD HASAN KHAN, J.---This appeal, with the leave of this Court, is directed against the judgment dated 21-9-1995 of a learned Single Judge of the High Court of Sind passed in Revision Application No.85 of 1995, filed by the respondents against the order of dismissal of their application under Order XXII, Rule 4, C.P.C., as the legal heirs of the deceased defendant Saifuddin in Suit No.1347 of 1975 (New No.3056 of 1985), filed by the appellant, allowing the same by setting aside the order, ordering their impleadment and remanding the case to the trial Court for further proceedings.
2. 2 The facts relevant for the disposal of this appeal, briefly are, that Jameel Ahmed appellant herein-filed a civil suit against deceased Saifuddin and Advocate, Muhammad Ahmed for a declaration and permanent injunction. During the pendency of the suit Saifuddin expired on 1-6- 1994. When the case came up for hearing on 21-7-1994, the counsel for the defendant intimated to the Court that the defendant had expired and also placed written-statement on record to that effect. The case was, thereafter, adjourned to 3-8-1994 and 18-8-1994. However, on 1-9-1994 the defendant---s counsel also moved an application but the case was adjourned to 7-9-1994, as the Presiding Officer was on leave. He was also on leave on 7-9-1994. The case was, therefore, adjourned to 18-9-1994, went the counsel for the plaintiff as well as the defendant's legal heirs were present in Court. The plaintiff also filed some application in this behalf under section 151, C.P.C. On 6-7-1994 in which arguments were heard on 25-9-1994 and the case was adjourned for orders to 5-10-1994. On the last --mentioned date, the Advocate for the legal representatives of the deceased defendant moved another application under Order XXII, Rule 2, C.P.C., for bringing the legal representatives of the deceased defendant on record, indicating therein their names and addresses. This application was, however, dismissed by the learned trial Court by order dated 5-10- 1994 on the assumption that it was filed after the expiry of a month from the date of expiry of limitation period of 90 days provided for under Article 177 of the First Schedule to the Limitation Act.
3. The respondents feeling aggrieved by the aforesaid order filed revision application in the High Court which was allowed.
4. 3 Leave to appeal was granted by this Court to consider, whether the learned judge in. Chambers on the basis of any principle of law could have brought on record the respondents as the legal heirs of the deceased defendant after the expiry of 90 days from the date of his death keeping in view the above facts.
5. 4 Learned counsel for the appellant relying on Order XXII, Rule 4, C.P.C. And the case of Bibi Khudeja (deceased) through L.Rs. v. Pir Sarwaruddin Shan (deceased) through 1.Rs.(1992 MLD 490), contended that it was not necessary to substitute legal representatives of any defendant where such defendant fails to file a written-statement or appear and contest the suit at the hearing and judgment could be pronounced notwithstanding the death of such defendant, as contemplated by sub-rule (4) of Rule 4 of Order XXII, C.P.C. In the instant case, it was submitted that defendant No.2 was deleted from the array of the defendants but the respondent/defendant Saifuddin deceased failed to file a written-statement despite several opportunities. Consequently, he was proceeded ex parte and the case was adjourned for recording evidence of the plaintiff on 27-4-1976, by order dated 24-4-1976 of the trial Court. The precise submission was that the application of the appellant dated 5-10-1994 for bringing legal representatives of the deceased defendant on record was the- barred by one month and five days, inasmuch as, the period of 90 days was to be commuted from the date of death of the deceased defendant and this period could not be extended as the provisions of section 5 of the Limitation Act, are not applicable for condoning the delay in the substitution of the legal representative. It was further argued that when a proper application is filed beyond the a remedy is available under Order XXII, Rule 9(2), C.P.C. For setting aside any order made or judgment pronounced by the Court in the absence of the deceased defendant provided that it was proved that he was prevented by any sufficient cause from defending the suit.
6. 5 Mr. Muhammad Ali Sayeed, learned counsel for the respondents cited Muhammad Bakhsh v.
7. Jamal (PLD 1969 Lahore 642) and Jehangir Khan v. Abdul Latif Khan (1973 SCMR 286), to contend that an application under Rule 4, Order XXII, C.P.C., to bring legal representatives of the deceased defendant on record after expiry of limitation can be treated as application under Order XXII, Rule 9, C.P.C.
8. 6 There is no cavil with the proposition advanced by the learned counsel for the appellant that provisions of Order XXII, C.P.C. After the amendments introduced by the Law Reforms Ordinance, 1972 have materially changed. Sub---rule (4) of Rule 4 of Order XXII, C.P.C. Provides, "It shall not be necessary to substitute the legal representatives of any such defendant who has failed to file a written-statement or has failed to appear and contest the suit at the hearing, and judgment may in such case be pronounced against the said defendant notwithstanding his death, and such judgment shall have the same force and effect as if had been pronounced before his death took place". Also refer Khushi Muhammad v. Mst Aziz Bibi (PLD 1988 SC 259). Reference be also made to the case of Syed Ghias Haider v. Mst Allah Rakhi (PLD 1996 SC 217), wherein it was held that remedy under Order XXII, Rule 9, C.P.C. Is available in case proper application is filed beyond the provided sufficient cause is shown within the meaning of sub-rule (2) of Rule 9 of Order XXII.
9. 7 There appears to be some misunderstanding as to the legal position with regard to the application to bring the legal representatives on record, in as much as after filing written- statement on 21-7-1994, the defendant's counsel also filed an application on 19-10-1994. This case followed by another application dated 5-10-1994 under Order XXII, Rule 4. The plaintiff's counsel also moved an application under section 151, C.P.C. Copy of the diary sheet of the trial Court with effect from 23-9-1994 to 5-10-1994 shows that the advocate for the defendant was associated with the Proceedings throughout and the legal representatives also appeared in the Court on 19-9-1994 and thereafter, were represented by their counsel.
10. 8 It appears that the Courts below have misread/disregarded the diary sheets of the trial Court which clearly established that counsel for the defendant filed a written-statement in Court on 21-7- 1994 that the defendant had died on 1-6-1994.
11. 9 It is well settled that principal object behind all legal formalities is-to safeguard the paramount interest of justice and mere technicalities unless offering an insurmountable hurdle should not be allowed to defeat the ends of justice. Refer Manager, Jammu & Kashmir, State Property in Pakistan v. Khuda Yar (PLD 1975 SC 678). It was observed by Kaikaus, J., in Imtiaz Ahmad v. Ghulam Ali (PLD 1963 SC 382):- "I must confess that having dealt with technicalities for more than forty years, out of which thirty years are at the Bar, I do not feel much impressed with them. I think the proper place of procedure in any system of administration of justice is to help and not to thwart the grant to the people of their rights. All technicalities have to be avoided unless it be essential to comply with them on grounds of public policy. The English system of administration of justice on which our own is based may be to a certain extent technical but we are not to take from that system its defects. Any system which by giving effect to the form and not to the substance defeats substantive rights is defective to that extent. The ideal must always be a system that gives to every person what is his. "
12. 10 Applying the above principle, the trial Court could have treated the statement dated 21-7-1994 as application for bringing the legal representatives of the deceased defendant on record, particularly, when all the legal representatives were present in Court on 18-9-1994 and some application was earlier moved on 1-9-1994. Viewed from this angle, the application was well within the having been moved before, 90 days of the death of the defendant. The dictum laid down in Jehangir Khan's case (supra) is fully attracted to the facts of this case. In the precedent case, it was held that an application for bringing legal representatives on record could be treated as combined application under rules 3 and 9 of Order XXII for setting aside the abatement and impleading legal representatives. The same view was taken by the learned Single Judge of the Lahore High Court in Walayat Hussain v. Dost Muhammad (1994 CLC 544).
11. For the foregoing reasons, we find that there is no inherent legal infirmity in the impugned judgment of the High Court. The discretion exercised by the High Court was proper in the circumstances of the case warranting no interference. The appeal, therefore, fails and is hereby dismissed with no order as to costs.