' IRSHAD HASAN KHAN, J.---This appeal, with the leave of the Court, is directed against the judgment of the Lahore High Court, Bahawalpur Bench, dated 25-4-1993, in Regular Second Appeal No,37 of 1970.
2. Brief facts are that the suit land measuring 16 Kanals, comprised in Khata No,130/131 (now Khata No,132), Khasra Nos. 433/8, 18 and 19 village Bhuduwali, Tehsil Ahmadpur East. Allegedly, in or about 1950 Diwan Zainul Abidin, deceased/vendor, through an oral sale alienated the suit land for a consideration of Rs,1,200 in favour of Ghulam Rasul, deceased/vendee. The entire sale price was paid and possession delivered to the deceased/vendee.
3. It is alleged that in or about 1965, the deceased/vendor started asserting his ownership rights in the land. Ghulam Rasul, therefore, on 21-1-1965, filed a declaratory suit challenging the legality of the sale and in the alternative, of ownership by way of adverse possession. The suit was later withdrawn with permission to file a fresh suit. The deceased vendee (appellant herein), died after sometime, after filing a fresh suit vide plaint dated 4-1-1967, for declaration of ownership of the suit land on account of sale in his favour and alternatively, ownership on account of adverse possession. The permanent injunction restraining the respondents from interfering with his possession by way of consequential relief, was also prayed for. The suit was contested by the respondents being violative of the provisions of section 54 of the Transfer of Property Act (hereinafter referred to as the Act).
3-A. The Trial Court, in view of the pleadings of the parties, issues framed thereunder and after perusing the evidence led by them, dismissed the suit vide judgment and decree dated 18-4-1968.
On appeal, the learned Additional District Judge, vide judgment dated 20-12-1959, decreed the suit by reversing the findings as to sale of the suit land as well as ownership on the basis of adverse possession. It was, however, held that in view of section 54 of the Act, the title had not passed on to the vendee. The respondents challenged the above judgment in Regular Second appeal before the High Court. During the pendency thereof. Ghulam Rasul died on 5-12-1971. His legal heirs were not brought on record within the prescribed period, therefore, the appellants moved an application under Order XXII, Rule 4 of the Civil Procedure Code, praying for dismissal of the appeal having abated. The respondents also moved an application on 23-11-1998 for bringing on record the legal heirs of Ghulam Rasul, that is to say, the appellants herein. This application was allowed on 23-11- 1998 subject to all just exceptions.
4. It is not disputed that Ghulam Rasul died on 5-12-1971. The appeal, therefore, stood abated automatically. The learned Judge in Chambers, however, set aside the abatement and disposed of the appeal on merits. The oral evidence tendered by the witnesses of the appellants, i.e, Tariq Muhammad, P.W.1, Allah Wasaya, P.W.2, and statement of Ghulam Rasul, plaintiff/appellant P.W.3, in support of the plea that the plaintiff/appellant had purchased the suit land about 18/19 years ago from Zain-ul-Abidin in consideration of Rs,1,200, out of which he had paid Rs,700 to him and thereafter, the possession of the land was delivered to him, was not believed by the trial Court as well as the High Court, after proper appraisal of evidence on record and perusal of Khasra Girdawari for the years 1950 to 1966 (Exh. P-1), as well as copy of mutation (Exh.P-2). Needless to observe that Ghulam Rasul had admitted in cross-examination that the mutation was cancelled in appeal. The Jamabandis Exh.D-1, of the years 1953-54, 1957-58 (Exh. D-2), 1961-62 (Exh. D-3) and 1965-66 (Exh. D-4), were relied upon by the learned Judge in Chambers to show that Ghulam Rasul was a tenant under Zain-ul-Abidin. It was also established from the evidence of the appellants that there was an agreement to sell the land. The High Court was, therefore, right in holding that only the suit for specific performance of the agreement was competent and the suit for declaration under section 42 of the Specific Relief Act was barred. The High Court was also right in holding that the transaction was not reduced into writing and signed by the parties, therefore, the appellants could not take benefit of the principle of past performance under section 53-A of the Act.
5. It would thus be seen that the appellants having failed on all the three issues, the judgment and decree of the trial Court was rightly upheld and that of the learned Additional District Judge, reversed by the High Court.
6. Learned counsel for the appellants has been unable to show that the position taken by the two Courts below on merits of the case, suffers from any illegality, legal flaw or that the above judgments were based on misreading or disregard of any material piece of, evidence. Clearly, the appellants have no leg to stand on merits. The appellants, however, seek reversal of the impugned judgment of the High Court on technical ground, i.e, that Ghulam Rasul, appellant having died on 5-12-1971 and the period of limitation prescribed under the law to bring his legal representatives on record and to get the abatement of appeal set aside, having expired before coming into force of the Law Reforms Ordinance, the question relating to the abatement of appeal should have been decided in accordance with the law, prevailing before the enforcement of Law Reforms Ordinance and that the abatement was to be governed in accordance with the law existing at the time when the abatement took palce as held by this Court. The above plea also finds support from the judgment of this Court rendered in the case of Noor Hussain v. Chief Settlement Commissioner (PLD 1983 SC 62). Leave to appeal was granted to consider the above plea.
6. Mr. Muhammad Munir Peracha, learned Advocate Supreme Court, appearing on behalf of the respondents did not contest the proposition of law canvassed above. The question, therefore, which needs consideration is whether in the facts and circumstances of the case, the High Court was right in setting aside the order of abatement, in the exercise of its discretion on sound judicial principles. This aspect of the matter has been dealt with at length by the learned Judge in Chambers vide paragraphs 9 and 10 of the impugned judgment, which reads thus:-- "There is another aspect of the case which adds some complexity to the case. The respondents state that Ghulam Rasool had died on 5-12-1971 but he was not substituted by his legal representatives within time. During the pendency of the second appeal, an application on behalf of the respondents under Order XXII, Rule 4, C.P.C. Was filed on 6-3-1989 that the appeal be declared to have abated. Before this petition was filed, an application under Order XXII, Rule 4, C.P.C. For permission to implead the respondents as L.Rs, of Ghulam Rasool was filed by the learned counsel for the appellants on 23-11-1988. This application was allowed subject to all just exceptions by this Court vide order dated 23-11-1988. After the said application of the respondent was submitted, since there was a serious dispute between the parties as to the date of death of Ghulam Rasool, my learned brother Gul Zarin Kiani, J vide order dated 19-11-1990 directed the Senior Civil Judge, Bahawalpur to collect evidence on the point of actual date of death of Ghulam Rasool and send the evidence alongwith the record to this Court for decision on the issue. The needful was done.
Learned counsel for the parties, therefore, also addressed the Court on the question of abatement in the light of the evidence brought before this Court.
' The pith of the contentions of the learned counsel for the appellant is that as per entry in the Register of Deaths of the year 1971-72 (Exh.A/1), Ghulam Rasool had died on 5-2-1971, that the appeal had automatically abated after 90 days under Order XXII, Rule 9, C.P.C. As the abatement was not got set aside within 60 days. In this behalf reliance was placed on Ghulam Haider v. Mst.
Raj Bhari (PLD 1973 Lah. 372). The question of effect of Ordinance XII of 1972 on pending actions was also examined. It was held that if the death had occurred before the said Law Reforms Ordinance came into being, the appeal would abate till such time the abatement is set aside."
7. After hearing the learned counsel for the parties at some lenght, we are of the view that in the facts and circumstances of the case, the High Court was right in avoiding technicalities and preferring to decide the case on merits. The view taken by the High Court finds support from the judgment of this Court in the case of Imtiaz Ahmed v. Ghulam Ali (PLD 1963 SC 382), wherein Kaikaus, J. Observed:--- "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."
' It will also be instructive to quote Allah Ditta v. Barkat Ali (1992 SCM R 1974), paragraph 7 whereof read thus:- "7. In this case what has happened is that the appellane_who is shown as an owner in the Record- of-Rights Jamabandi 1960-61 and in whose favour there is decree on merits granted by the trial Court has been deprived thereof on technical or procedural polemics. To avoid abatement in such circumstances law was amended by Law Reforms Ordinance, 1972 whereby sub-rule (3) was substituted by the new rule in Rule 4, Order XXII, C.P.C. The new rule reads as follows:-- 'When within the time limited by law no application is made or intimation is given under sub-rule (1), the Court may proceed with the suit, and any order made or judgment pronounced in such suit shall, notwithstanding the death of such defendant, have the same force and effect as it had been pronounced before the death took place' ."
8. In the circumstances of the case we find that the non-impleadment of predecessor-in-interest of Ghulam Rasul appellant was not fatal to hearing the appeal and determine the real controversy in whom the land vested. This is, therefore, not a fit case to interfere with the discretion exercised by the High Court in setting aside the abatement proceedings, particularly, when the judgment of the trial Court as well as the High Court, on merits of the case, having been concluded by a finding of fact, are in aid of justice and do not suffer from any legal defect.
9. Resultantly, the appeal is dismissed. The parties are, however, are left to bear their own costs.