1. BASHARAT AHMAD SHAIKH, J.---Through this appeal by leave of the Court, Mst. Zubaida Rashid and others, the legal representatives of Mir Abdul Rashid, have challenged the order of the High Court passed on 12th of December, .1995 by which a revision petition filed by them was dismissed.
2. The essential facts forming background of the present appeal are that Mir Abdul Rashid, predecessor-in-interest of the present appellants, filed a suit in the Court of Additional Sub-Judge, Mirpur. On 15th of July, 1993 nobody was present from both sides with the result that the trial Court dismissed the Suit for default of appearance. It is an admitted fact. That Mir Abdul Rashid had died on 10th of July, a few days before the dismissal of the suit. It is also admitted that on the day of dismissal his learned counsel had not come to know about the death of Mir Abdul Rashid. On the same day, the learned counsel moved an application for restoration of the suit. Notice was given to Muhammad Hussain Butt, the defendant in the suit, for 8th of August but he could not be served and the case was adjourned to 9th of September, on which date it was again reported that Muhammad. Hussain Butt had not been served. The case was then adjourned to 9th of October.
3. However, on 18th of September another application was moved by the appellants, the legal representatives of Mir Abdul Rashid, praying that they may be brought on record as legal representatives. This application was attached with the file of the restoration application and the Additional Sub---Judge ordered that it may come up for further proceedings on the next date of hearing. On 9th of October Muhammad Hussain Butt was not present and the Presiding Officer passed an order that notice shall also issue to Muhammad Hussain Butt in the application moved on 18th of September by the legal representatives. After many adjournments, Muhammad Hussain Butt appeared on 9th of March, 1994 on which date copies of both the applications mentioned above were supplied to him and he was directed to file his objections. The subsequent orders recorded by the learned Additional Sub-Judge do not mention the second application moved by the present appellants for impleadment. On 4th of April objections were filed by Muhammad Hussain Butt in reply to the application for restoration of the suit. After many adjournments arguments were heard on the restoration application on 22nd October 1994. On 25th of October the learned Additional Sub-Judge dismissed the application for restoration by holding that the power given to the learned counsel of Mir Abdur Rashid came to an end upon his death and, therefore, application moved by the learned counsel was not maintainable. About the application for bringing the legal representatives on record the learned Additional Sub-Judge agreed with the contention of the learned counsel for Muhammad Hussain Butt that the aforesaid application, could only proceed if the suit was restored. The learned Sub-Judge, therefore, observed that 'decision was not called for at the present stage".
4. On 31st of October 1994 the appellants filed another application which contained the prayer that the original suit file be restored. It was stated in the application that since the plaintiff was not alive when the order for dismissal was passed, it was a nullity and, therefore, the question of any limitation did not arise. This application was rejected by the trial Court through a detailed order.
5. The gist of the order is that the order of dismissal for default was legally correct and that the legal representatives of Mir Abdur Rashid should have filed an application for restoration of the suit instead of moving an application that they may be impleaded in place of the deceased. It was further observed that an application under section 151, C.P.C. Could only be moved in a pending suit and was not maintainable when suit itself had been dismissed. The trial Court also took note of the fact that the suit was dismissed on 15th of July, 1993 but the application under section 151, C.P.C. For restoration of the suit was filed on 31st of October, 1994 without giving any explanation for the delay.
6. The order also contains the opinion that due to the negligence and carelessness of the legal representatives a valuable right had meanwhile accrued to the defendant.
7. While dismissing the revision petition filed by the appellants a learned Judge of the High Court observed that the application for restoration was not maintainable as it had been moved by the counsel of a dead person and that the suit could only be restored on an application moved by the legal representatives within 90 days. It was noted that when the application was moved by the legal representatives for being impleaded in place of deceased it was rejected but no appeal was filed against it. The learned Judge has also expressed the view that section 151, C.P.C. Was not applicable because an express remedy was available in the shape of an application for restoration of the suit under Order 22, Rule 3, Civil Procedure Code.
8. The basic point which needs to be resolved in this case is about legality or otherwise of the order of dismissal passed on 15th of July, 1993. As is known the order was passed when the plaintiff had already passed away. It means that order was passed against a dead person. In our opinion the order passed by the learned Sub-Judge was nullity and the fact that his death was not in the knowledge of the Presiding Officer does not make any difference in the eye of law. In this respect we may refer to a judgment of the Nagpur High Court Laxminarayan and another v. Lazmibai (AIR 1935 Nagpur 189), in which, dealing with a similar situation, it was held in light of the cases decided earlier that an order of dismissal of default passed after the death of a sole plaintiff was a nullity. In that case it was also held that in such a situation the order of dismissal could be set aside under section 151, C.P.C. Facts of the case were that the husband of Laxmibai filed a suit which was fixed for evidence but in the meantime he died. Consequently on the date of hearing nobody appeared whereupon the suit was dismissed for default on 20th 'of July, 1934. On 4th of August Laxmibai filed an application that she may be brought on record in place of the deceased plaintiff and the suit may proceed. Acting under section 151, C.P.C. The trial Court set aside the dismissal order and restored the case to its file and substituted Laxmibai's name in place of the deceased plaintiff. This order was challenged before the Nagpur High Court which dismissed the revision petition by holding that the lower Court acted in proper exercise of power under section 151, C.P.C. In setting aside that order and restoring the case. The relevant part of the judgment of Subhedar, A.J.C. May be usefully reproduced:-- "On the contrary in 35 All. 331 ' Debi Bakhsh Singh v. Habib Shah' their lordships of the Privy Council have very clearly pointed out the error of applying to a dead man orders and rules applicable only to a mere defaulter. The order dismissing the present suit under the provisions of Order 9, Rule 8, Civil P.C., passed by the lower Court on 25th July, 1934 in ignorance of the death of the plaintiff was simply a nullity: 73 I.C. 230 'Tirlochan Prasad Singh v. Bhagwati'. If follows then that there was no need for formal application by the non-applicant under Rule 9 of the same order to set aside the order of dismissal passed against her deceased husband. The application which she made. For bringing her name on the record was rightly held to fall under Order 22, Rule 3, Civil P.C., and as by that application information was conveyed to the Court that its order of dismissal was passed against the deceased plaintiff the lower Court very properly exercised its powers under section 151, Civil P.C., in setting aside that order and restoring the case to file. For, these reasons the application is dismissed with costs. Pleader's fee Rs.15."
9. As may be seen the view taken by the Nagpur High Court is that in such a situation an application made for bringing legal representatives on record is an application under Order 22, Rule 3. We are in respectful agreement with this view. In light of the fact that the order of dismissal passed on 15th of July was a nullity, it follows that suit was pending when on 18th of September the appellants moved an application for being brought on record admittedly within three months from the date of Mir Abdul Rashid's death. However, this application was not disposed of by the learned Sub-Judge on the wrong view that the question of bringing the legal representatives on record could arise only when the suit was restored. As has been held in the Nagpur case cited above in such a situation only an application for being brought on the record moved by the legal representatives was sufficient. The learned Additional Sub-Judge did not either accept or dismiss the application with the result that a peculiar situation not specifically provided for by the Civil Procedure Code has arisen. Therefore, an application under section 151, C.P.C. Was maintainable.
10. The only question which now remains to be seen is whether the application moved under section 151 was barred by time as has been vehemently contended by the learned counsel for the respondent. This question does not pose any serious problem because it is well-settled that normally a void order can be struck down at any time by a Court. However, there is an exception to this rule which has been laid down by the Supreme court of Pakistan in Sharif Ahmad Hashmi v.
11. Chairman, Secreening Committee, Lahore (1978 SCM R 367) and has been followed by this Court in.
12. Number of cases. The principle is enunciated in the following paragraph by the Supreme Court of Pakistan:-- "This passage does not mean that a void order is always to be struck down regardless of the consequences of such a decision, but that a void order must be struck down provided there is no statute or principle of law which would make it unjust or inequitable to strike down the void order.
13. This qualification is very important, and that is why, for example, a writ may be refused against a void order this would enable the petitioner to circumvent the provisions of a statute of limitation [See this Court's judgment in Civil Appeals 150 and 166 of 1970 Jalal-ud---Din and others v. Mst.
14. Noor Sain and others) and (Jalal-ud-Din and others v. Shams-ud-Din and others) respectively.
15. Similarly in Ghulam Mohi-ud-Din v. Chief Settlement Commissioner (PLD 1964 SC 829) a writ petition had been filed against an order which this Court held was void. Nonetheless the writ petition was dismissed on the ground that it was barred by acquiescence on the part of the petitioner. There is also ample authority for the proposition that a writ against a void order may be dismissed, if the petitioner is estopped by his conduct from challenging it, or if be has been guilty of laches."
16. The present case does not fall under the exception mentioned in the passage quoted above. The appellants have all along been vigilant and have been pursuing the matter by moving different applications.
17. The only requirement in the facts of the case was that the legal representatives should have moved an application for being impleaded as plaintiffs. This was duly done by them within three months but that application has not yet been disposed of on the wrong legal assumption that the question of deciding this application would arise only if and when the suit is restored. It also follows that the appellants have done their duty and it also follows that the appellants cannot be penalised for the fact that the application moved by them within time has not been decided. As held above it was the duty of the. Court to accept the application as it had been moved within three months. Therefore, it is clearly a case in which it is the duty of the Court to prevent the abuse of process of the Court and also advance the ends of justice. Even otherwise no period for making an application under section 151 of the Civil Procedure Code has been specifically provided in Limitation Act.