MUNIR A. SHEIKH, J.---This appeal by leave of the Court is directed against' the judgment dated 1- 6-1994 of the Lahore High Court, Rawalpindi Bench through which the appeal filed by the appellants against the judgment dated 8-2-1973 of the learned Additional District Judge dismissing their appeal against the judgment dated 24-7-1972 of the trial Court by which their suit was held to have abated in toto and dismissed as such, has been dismissed.
2. The dispute relates to land measuring 249 Kanals, 10 Marlas which was originally owned by Kala son of Hamza who died issueless on 9-1-1898 and was survived by his widow namely Hayat Bibi who held the said land as life estate under custom. She made gift of land measuring 53 Kanals, 8 Marlas out of the said land to Ashiq Hussain, Inayat Hussain and Walayat Hussain sons of Makhan who were impleaded as defendants Nos. 1 to 3 in the suit from which this appeal has arisen. Hayat Bibi died in the year 1951. Muhammad Khan, predecessor-in-interest of the appellants claiming to be collateral of Kala Khan filed a suit in the Civil Court at Gujjar Khan for declaration that he was owner of the land to the extent of 3/4th share of the said land which was decreed on 21-10-1951. In this suit, the said donees were impleaded as defendants. Feeling aggrieved, only one of them namely Ashiq Hussain filed appeal which was disposed of on the basis of compromise according to which Muhammad Khan was given land measuring 140 Kanals, 11 Marlas out of the said land of 249 Kanals, 10 Marlas and the rest of the land was given to Ashiq Hussain and the other two donees were not given any share though according to learned counsel for the appellants, they were impleaded as parties in the said appeal and were also parties to the compromise. Mutation No,60 was attested on the basis of this compromise by the Revenue Officer on 13-3-1962. Ashiq Hussain filed appeal 'before the Collector against this mutation which was accepted on 17-11-1962 and the said mutation was set aside. Muhammad Khan then filed suit on 20-6-1963 before the Civil Court for declaration that he was owner with possession of the land measuring 140 Kanals, 11 Marlas which was given to him through compromise according to the said decree passed in the appeal and in the alternative, he claimed a decree for declaration to the effect that he was owner of 3/4th share in the land as collateral of Kala Khan if he was found not entitled to a decree according to the said compromise. In this suit, Ashiq Hussain, Walayat Hussain and Inayat Hussain, donees along with heirs of Hayat were impleaded as defendants. The suit was decreed on 25-5-1967 by the Civil Court to the extent of land measuring 140 Kanals, 11 Marlas. Ashiq Hussain and others filed appeal before the District Court against the said decree which was decided on the basis of compromise on 15-11-1967 according to which Lal Khan one of the appellants in the said appeal abandoned his rights in the land in favour of Ashiq Hussain along with appellants whereas according to this compromise, Muhammad Khan was also shown to have abandoned not only some of the land in dispute which he had got as heir of Kala Khan but his other land personally owned by him and a house constructed thereon in favour of Ashiq Hussain.
He was left with the land measuring about 52 Kanals. He challenged this compromise decree before the Civil Court through suit from which this appeal has arisen. In this suit, Lal Khan and others who had abandoned their rights in favour of Ashiq Hussain etc., filed written statement and admitted the correctness of the same. However, the suit was dismissed through judgment dated 24-10-1972 as having abated as a whole on the ground that Lal Khan who died on 28-8-1969, his legal representatives were not brought on the record within the prescribed period of limitation as the law then existed as compromise decree which had been challenged in the suit was not divisible. Appeal filed by the predecessor-in-interest of the appellants was also dismissed by the learned Additional District Judge on 8-2-1973 against which R.S.A. No,215 of 1973 filed by the appellants was also dismissed through the impugned judgment dated 1-6-1994 which is the subject-matter of this appeal by leave of the Court. It may be mentioned here that according to the learned counsel for both the parties, the heirs of Lal Khan were his widow Bholi, Sakina daughter and Haq Nawaz son.
3. The view taken by the learned Single Judge of the High Court in the impugned judgment was that since legal representatives of Lal Khan had not been brought on record within the prescribed period of limitation, therefore, for want of necessary parties in the suit, the suit had abated as a whole. It appears that the said view was taken on the assumption that interest of La Khan as to land could not be separated from the rights claimed by Muhammad Khan in relation to the compromise decree challenged in the suit.
4. We have gone through the terms of the compromise and find that Bholi widow of Lal Khan who is one of his legal representatives had already been impleaded as one of the defendants in her own rights.
5. The question which arises for determination was whether in view of the terms of the compromise on the basis of which decree challenged in the suit had been passed and the failure of the plaintiffs to make application to bring legal representatives on record of Lal Khan, defendant had resulted in abatement of the suit partially or as a whole or the same did not abate at all. This question should have been decided with reference to the terms of the compromise, the rights which plaintiff claimed in the suit in relation thereto considering the pleas raised in the suit and not in isolation thereof.
6.We have gone through the terms of compromise which have been reproduced in extenso in the judgment/decree dated 15-11-1967 of the learned District Judge which if read as a whole, the same can safely be construed to be a composite document effecting compromise between Lal Khan on the one hand and his co-appellants on the other hand as regards abandonment of their rights in the land as collateral of Kala Khan according to which Lal Khan had abandoned his rights in favour of the other appellants. The other part relates to settlement between Muhammad Khan deceased plaintiff and the donees according to which he surrendered some of his land in their favour. In the suit, the plaintiff had challenged the compromise between himself and the donees as regards transfer and surrender of his land in their favour. Learned counsel for the respondents appearing before us when questioned frankly conceded after going through the said compromise deed that Muhammad Khan through it did not surrender any land and his rights therein in favour of either Lal Khan or his other co-appellants. As has already been observed, even Lal Khan etc., did not transfer their rights in favour of his other co-appellants rather they abandoned their rights in their favour.
Lal Khan as has already been seen filed written statement in the present suit wherein he and the other appellants did not challenge the terms of compromise so far as it related to settlement and adjustment of their shares in the land inter se. In the suit, the plaintiff challenged the said compromise decree so far it related to transfer of his share in the land in favour of the donees, therefore, looked from this angle, the suit did not at all abate on the death of Lal Khan qua the rights of the plaintiff and relief claimed in the suit. If the suit had proceeded and decided on merits, the same would not have effected the settlement between Lal Khan and his co-appellants about their shares in the land inter se about which they had admitted in this suit that they had abandoned their rights in favour of other appellants.
7.Learned counsel for the appellants maintained that since Lal Khan had ' transferred his rights in the land in favour of other co-appellants according to the said compromise decree and the transferees from him being already parties in the suit, therefore, his death could not be said to have resulted in the abatement of the suit as the said transferees could very well be considered as the legal representatives within the meaning of section 2(11), C.P.C., therefore, his estate was duly represented by them. In support of this contention, he relied upon a number of reported judgments.
We need not dilate upon this aspect of the case for the appeal is otherwise liable to be accepted on other grounds, therefore, we are not examining the rule laid down in the said reported judgments.
8.As has been observed above, Lal Khan deceased having acknowledged in the present suit in his written statement the abandonment by him of his rights in favour of the other co-appellants in the appeal in which compromise was effected which was under challenge in the present suit and he also did not raise any objection against the said compromise qua the said abandonment on his part and that so far as transfer of land by deceased Muhammad Khan through the said compromise was not made in favour of Lal Khan or any of his co-appellants, therefore, the death of Lal Khan and non-impleadment of his remaining legal representatives in the suit could not be held to have resulted in creating any legal defect in the Constitution of the suit as regards rights claimed by Muhammad Khan deceased and the persons i,e,, the donees to whom he allegedly transferred the land who were already parties in the suit, therefore, the question of legality of compromise which was challenged to the extent of Muhammad Khan deceased's share in the land in favour of the said donees could have been adjudicated upon without affecting the settlement between Lal Khan deceased and the co-appellants as regards adjustment and settlement of their shares inter se. In this view of the matter, while holding that the suit had abated as a whole, the Courts below did not apply the law correctly to the facts established on the record in this case which resulted in refusal to exercise jurisdiction to decide the suit on merits and on this short ground, the impugned judgments are liable to be set aside.
9.Learned counsel for the respondents submitted that in this appeal, Mst. Ghori daughter of Makhu, respondent No,14, Mst. Bani daughter of Abdul Ghani/respondent No,18 who was son of Muhammad Wali and Inayat Bibi daughter of Muhammad Wali, respondent No,19 died but application for bringing their legal representatives on the record was made after the expiry of period of limitation prescribed under the Supreme Court Rules, as such, the appeal should be dismissed.
10.Learned counsel for the appellants submitted that Civil Procedure Code and its technicalities are not applicable to proceedings before this Court. He submitted that this Court is vested with ample discretion in order to do complete justice to condone the delay in 'making applications prescribed under the rules.
10-A. As we have observed, the suit was dismissed by the trial Court as having abated without trial on merits on an erroneous view of law as regards abatement of the suits and that the law favours adjudication of the rights of the parties on merits as raised in the suit, therefore, we are not inclined to exercise discretion in favour of the respondents by dismissing this appeal merely on this ground, for some of the legal representatives of these deceased respondents were already on the record and order dated 16-6-1999 of this Court shows that the information as regards death of these respondents was laid before this Court on that date when the appeal came up for hearing on which date the appellants Came to know and the learned counsel for the respondents was directed to furnish full particulars of their legal representatives which according to the appellants were furnished on 9-8-1999 and application for bringing their legal representatives was made on 21-8-1999. Learned counsel for the respondents, however, disputed the correctness of the plea raised by the learned counsel for the appellants that information as regards full particulars of the legal representatives of deceased respondents was made as late as 9-8-1999. This plea has been raised in the application made by the learned counsel for the appellants to bring their legal representatives on the record and uptil today there is no counter-affidavit to deny the plea. Apart from this fact, we are not inclined to enter into any controversy on this question as we consider it is a fit case for remand as we feel the suit should be decided on merits, we condone the delay in making the said applications in exercise of discretion vested in this Court under the rules.
11. The upshot of this discussion is that the appeal succeeds and the same is accepted, impugned judgments of the Courts below are set aside and the suit is remanded to the trial Court for disposal on merits in accordance with law within six months from the receipt of certified copy of this judgment. There will, however, be no order as to costs.