' Though this case was fixed for recording of evidence of the defendants a subsidiary question has arisen on account of the objection of Mr. S.M. Usman, learned counsel for the defendant, to the participation of Mr. Sadaruddin Qureshi, Advocate, who was representing the deceased plaintiff Fazil Ali Shah and has filed power on behalf of some of the legal representatives of deceased plaintiff. It seems necessary to decide this question before proceeding further.
2. Briefly the admitted facts appear to be that an application for grant of letters of administration, was made by one Syed Fazil Ali Shah in 1985 under section 278 of the Succession Act in respect of certain properties, belonging to his aunt late Zubeda Begum. The aforesaid Fazil Ali claimed that he alongwith his brother and three sisters were the only legal representatives of Mst. Zubeda Begum. A caveat was filed by the defendant claiming to be executor of a will said to have been executed by Mst. Zubeda, and therefore, the petition was converted into a suit,' under the provisions of the Sindh Chief Court (0.S) Rules. The aforesaid Fazil Ali Shah died on 29-6-1998 and a statement was filed by Mr. Sadaruddin Qureshi, who was representing him during his lifetime on 29-12-1998, informing the Court of his demise and requested that, since he was not in contact with the legal heirs of the deceased, notice may directly issue to such legal heirs. Such notice was issued to one Syed Agha Mahmood, whose address was mentioned in the aforesaid statement. He appeared in Court and thereafter vakalatnama on his behalf as well as two other legal representatives was filed by Mr. Sadaruddin.
3. Mr. S.M. Usman, learned counsel for the defendant has urged that only statement informing the Court of the demise of Syed Fazil Ali Shah had been filed, but no formal application to bring them on record in terms of Order 22, Rule 3, C.P.C. Had been preferred within the time prescribed for making such application i,e, 90 days from the date of demise. Even the statement filed on 23-12- 1998 was beyond the statutory period of limitation and therefore, though the suit would not abate in terms of Order 22, Rule 3, C.P.C., it must be deemed to be proceeded by Syed Fazil Ali Shah and not his legal representatives. The authority given by Syed Fazil Ali Shah to Mr. Qureshi having terminated upon his demise, the latter could not participate in the proceedings on behalf of the legal representatives.
4. In support of his contention Mr. S.M. Usman placed reliance on 2 Division Bench Judgments of this Court in Bibi Khudeja v. Pir Sarwaruddin 1999 MLD 490 and Saifuddin v. Zainuddin 1995 CLC 1348. In these cases their Lordships held that after the amendment of the provision of Order 22, C.P.C.
Through the Law Reforms of 1972, though a suit by deceased plaintiff does not abate in the event of failure to apply for impleading him as a party, unless an appropriate application is made within the time prescribed the suit can only be deemed to be proceeded, by a dead person and his legal representative would be debarred from taking part in the proceedings. Indeed there can be no cavil with the above proposition as far as the correct legal position is concerned.
5. On the other hand Mr. Sadaruddin Qureshi learned counsel for the plaintiff argued that technicalities of procedure should not be. Allowed to defeat the ends of justice. He relied upon a recent judgment of the Honourable Supreme Court in Ghulam Rasool v. Muhammad Hussain 1999 SCM R 2004 in this case, the deceased appellant Ghulam Rasool had filed a suit for declaratory relief which was dismissed by the trial Court, but decreed by the 1st Appellate Court. The respondent moved the High Court in regular second appeal and during the pendency of the said appeal Ghulam Rasool died on 5-12-1971 but no application for impleading his legal representatives was made. As such the appeal stood abated by operating of law then in force. The High Court, however, set aside the abetment and proceeded to decide the appeal on merits, setting aside the findings of the 1st Appellate and restoring those of the trial Court. In the appeal before the Honourable Supreme Court the Appellate Court was unable to assail the finding of the High Court on merits, but took the technical plea that when the death had taken place prior to the enforcement of the Law Reform Ordinance, 1972, there was no justification for setting aside the abatement. Their Lordships were not impressed by the purely technical contention and declined to exercise the discretionary power to interfere with the orders of the High Court. Though the principle those technicalities should not be allowed to defeat substantive rights laid down in Imtiaz Ahmed. v. Ghulam Ali PLD 1963 SC 382 had been referred to in the judgment, it needs to be stated, with profound respects that the judgment proceeds on different factual basis and is of little direct assistance for resolving the controversy in hand.
6. Since the case law relied upon by the learned counsel did not appear to have a direct bearing on the controversy, particularly keeping in view the somewhat different nature of the proceedings from ordinary adversely litigation, I requested Mr. N.M. Bangish who was present in Court to assist me as amicus curiae. In a well-researched presentation Mr. Bangish in the first place urged that though a contested application for grant of letters of administration was to be registered as a suit it could not be treated as a suit stricto senso and all the procedural rules of C.P.C. Would not be applicable to it. Quoting from Rule 413 of the Sindh Chief Court (O.S.) Rules learned counsel pointed out that the Rule stipulated that "the procedure in such suit shall be as nearly as may be according to the provision of a Code". (under lining mine). In support of his contention he referred to a Division Bench Judgment of the Allahabad High Court in Bohra Kanahiyalal v. Gendo AIR 1928 All. 51 where, in a slightly different context Sir Shah Sulleman, J. Held that a contested application for probate was not itself a suit, but it is to take "as nearly as may be the form of a suit". As such learned counsel argued that for the purposes of bringing legal representatives on record limitation of 90 days prescribed in Article 176 of the Schedule of the Limitation Act will not apply and the applicable provision would be the residuary Article 181 which prescribes a period of 3 years from the date when the right to apply accrues. In support of this proposition learned counsel referred to a judgment of the Supreme Court of Azad Jammu and Kashmir in Fakir Alam and others v. Ajab Khan and others 1986 CLC 1320.
7. In identifying the peculiar nature of proceedings for grant of probate or letters of administration under the Succession Act Mr. Bagash referred to Division Bench of the Madras High Court in P.
Rama Naidu and others v. Rangayya Naido and others AIR 1933 Mad. 114 wherein provisions of Order 22, Rule 3, C.P.C. (as it then stood) were held not applicable to such proceedings. In the aforesaid case one Rama Naidu had applied for the probate of a will as its executor which was contested and refused by the lower Court. He filed an appeal before the High Court, but died during its pendency whereupon his sons applied to be impleaded. Their Lordships held that Order 22, C.P.C.
Was not applicable in such cases because the applicant had sued in a representative capacity on behalf of an beneficiaries of the will and since his sons were the beneficiaries after his demise, they had an independent right to join the proceedings under Order 1, Rule 8.
8. Learned counsel further argued that after amendment in Order 22 through the Law Reform Ordinance, 1972, the powers of the Court to bring legal representatives on record have been fairly enlarged and liberalized. It may be noticed that even where Rule 3 is applicable and if an application has not been made within 90 days, the Court can even set aside an order made in his absence in case the applicant shows that he was prevented by any sufficient cause from making the application within time. Section 5 has also been made applicable to such application moved under Rule 9(2). Moreover, in Muhammad Siddiq v. Muhammad Sakhi PLD 1989 SC 755 the Honourable Supreme Court has held that even if no application is made for bringing legal representatives of a deceased plaintiff on record if the Court itself comes to know of the demise of the plaintiff it can issue notices to such legal representatives on the basis of names and addresses provided under Order 7, Rule 26.
9. In the instant case such notices were issued by the Court and pursuant thereto some legal representatives have appeared to pursue the proceedings. Moreover, the plaintiffs evidence had already been concluded before the demise of Fazil Ali Shah and only the defendants evidence is to be recorded and arguments have to be addressed. Therefore, no substantial interest of the defendant is likely to be prejudiced if the legal representatives of the plaintiffs are allowed to context the proceedings. I would, therefore, reject the objection and direct the defendants to produce their evidence on the next date of hearing. Needless to say Mr. Sadaruddin would be at liberty to cross-examine witnesses and address arguments. I must record my deep gratitude and pay compliments to Mr. B.M. Bangash, Advocate for his invaluable assistance at a short notice.