' SARDAR SAID MUHAMMAD KHAN, C.J.--- This appeal has been directed against the judgment and decree of the High Court, dated 19-9-1997, whereby the appeal filed by the appellants, herein, was dismissed.
2. The brief facts of the case are that Nathoo, the grandfather of Muhammad Ashraf and others, appellants herein, filed a declaratory suit for enforcing the right of pre-emption in the Court of Sub- Judge as early as on 6-8-1963 against Alam Din and Mst. Fazal Begum, the mother of respondents Nos.2 to 7. The trial Court dismissed the suit on a preliminary issue. Meanwhile Nathoo, the grandfather of the appellants, died and his legal representatives, Abdul Aziz and others, filed an appeal before the District Judge, Mirpur. The District Judge accepted the appeal and remanded the case to the trial Court for trial afresh. The trial Court, after recording the evidence of the parties, dismissed the suit vide its judgment and decree, dated 28-10-1976, Abdul Aziz, one of the legal heirs of Nathoo, died and his legal representatives the present appellants, filed an appeal against the judgment and decree of the trial Court before the District Judge, Mirpur. Subsequently, the said appeal was transferred from District Judge, Mirpur to District Judge, Kotli, who accepted the appeal and decree of pre-emption was passed in favour of the appellants, herein. Thereafter, Alam Din, respondent, went up in appeal before the High Court against the judgment and decree of the District Judge. He took the objection in the High Court that during the pendency of the appeal before the District Judge, one of the vendees, namely, Mst. Fazal Begum had died on 29-9-1982 but her legal representatives were not brought on record within the period of limitation. Meanwhile, an application for bringing the legal representatives of Mst. Fazal Begum on record was filed in the High Court. The High Court remanded the case to the District Judge with the direction to decide the appeal pending before him after taking evidence with regard to the question of abatement or otherwise of appeal as a result of death of Mst. Fazal Begum.
3. The District Judge, after taking necessary proceedings in the matter, held that the appeal had abated. Consequently, again an appeal was filed to the High Court against the judgment and decree of the District Judge which was dismissed and the findings of the District Judge were affirmed. It is against the aforesaid judgment and decree of the High Court that the present appeal has been filed.
4. It has been argued by Ch. Muhammad Anwar, Advocate, the learned counsel for the appellants, that the Courts below have not properly appreciated the point that legal representatives of Mst.
Fazal Begum could not be brought on record due to the absence of knowledge of her death. He has argued that the respondents have taken different stands with regard to the date of death of Mst.
Fazal Begum, initially their case was that Mst. Fazal Begum died on 29-9-1982 whereas subsequently, they changed their stand about the date of her death from 29-9-1982 to 20-9-1982.
It has been further contended that in fact the appellants got the knowledge of the death of Mst.
Fazal Begum on 24-11-1986 and thereafter made necessary queries regarding her legal representatives. After ascertaining the names etc. Of her legal representatives, they made an application for their impleadment on 4-1-1987. The learned counsel has argued that the findings of the Courts below that even after the knowledge of the death of Mst. Fazal Begum, the application for impleadment of her legal representatives was belated is not sustainable, because under the circumstances of the instant case, the appellants were entitled to the condonation of delay. He has further submitted that even if it is assumed that the application for the impleadment of the legal representatives of Mst. Fazal Begum was time-barred, the appeal could not be held as abated so far as other vendee-defendant was concerned. The learned counsel has also referred to the .
Statement of Arshad Mahmood, one of the appellants, to substantiate his contention that after getting the knowledge of death of Mst. Fazal Begum, the delay in submitting the application for bringing her legal representatives was caused due to finding out the names etc. Of her legal representatives. Thus, according to the learned counsel for the appellants, the application could not be made even after the knowledge V death of Mst. Fazal Begum before the expiry of 41 days. He has referred to a case reported as Muhammad Aslam v. Custodian 1994 SCR 318 in support of his contention that as the appellants did not know the names and addresses of the legal representatives of Mst. Fazal Begum, they were entitled to the condonation of delay of 41 days. He has also referred to a case reported as Tota Ram v. Kundan AIR 1928 Lah. 784, wherein it has been held that a decree passed after the death of a party was not absolute nullity but was only erroneous; it could be rectified by setting aside the proceedings taken after the death of the party.
This authority has no relevancy to the facts of the case in hand.
5. In reply, Raja Hassan Akhtar, Advocate, the learned counsel for the respondents, has contended that the appellants were negligent in impleading the legal representatives of Mst. Fazal Begum. He has argued that the perusal of the statement of Arshad Mahmood, appellant, shows that the plea that the appellants consumed 41 days for finding out the addresses etc. Of the legal representatives of Mst. Fazal Begum is not tenable. He has particularly referred to cross- examination directed to Arshad Mahmood, one of the appellants to support his contention regarding negligence of the appellants. He has contended that nonimpleadment of the legal heirs of Mst. Fazal Begum would result in total abatement of the suit because in case of partial abatement, the suit would be hit by the doctrine of partial pre-emption. He has referred to a case reported. As Ghulam Qadir v. Ditta AIR 1946 Lah. 184, wherein it has been held that if the legal representatives of one of the deceased-vendees are not brought on the record within the prescribed period of limitation, the suit would abate in toto and not to the extent of the share of the deceased-vendee.
6. We have given due consideration to the matter. It may be stated that we are unable to subscribe to the contention of the learned counsel for the appellants that 41 days were consumed by the appellants in finding out the addresses of the legal representatives of Mst. Fazal Begum. The cross- examination directed to Arshad Mahmood, one of the appellants, clearly shows that his statement in that regard is unreliable; we are not persuaded to accept the contention on behalf of the appellants that delay occurred due to non-availability of the antecedents of the legal representatives of Mst. Fazal Begum. Thus, even if we assume for the sake of argument that the appellants came to know about the death of Mst. Fazal Begum on 24-11-1986, the application for the impleadment of her legal representatives was still time-barred by 41 days for which there is no reasonable explanation.
7. So far as the contention of the learned counsel for the appellants that the suit would abate only to the extent of the share of Mst. Fazal Begum is concerned, we are unable to subscribe to the contention of the learned counsel for the appellants because in that eventuality the suit would be hit by the doctrine of partial pre-emption which is not permissible in pre-emption cases as has been held in the authority relied upon by the learned counsel for the respondents.
' In the light of what has been stated above, we hold that the suit filed by the appellants, herein, stood abated as a whole. Consequently, the appeal stands dismissed with costs.