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1987 S C M R 1048

 

Present: Muhammad Afzal Zullah, Saad Saood Jan

and Mian Burhanuddin Khan, JJ

 

GHULAM MUHAMMAD‑‑Appellant

 

Versus

 

Mst. SHAMIM AKHTAR and others‑‑Respondents

 

Civil Appeal No. 132 of 1975, decided on 12th April, 1987.

 

(From the Order of the Lahore High Court, Lahore, dated 17‑1‑1975 passed in Applications C.M. 6 and 7 of 1974 in Writ Petition No. 1162‑R of 1966)

 

 

Muhammad Bakhsh v. Jamal P L D 1969 Lah. 642 ref.

 

Muhammad Ali Zaidi, Advocate Supreme Court and S. Inayat Hussain, Advocate‑ on‑Record (absent) for Appellant.

 

Hasan Ahmad Khan Khanwar, Advocate Supreme Court and Sh. Salahuddin, Advocate‑ on‑Record (absent) for Respondents Nos. 1 to 4.

 

Rao M. Yousuf Khan, Advocate‑on‑Record for Respondents Nos. 6 to 9.

 

Date of hearing: 12th April, 1987.

 

JUDGMENT

 

MUHAMMAD AFZAL ZULLAH, J.‑‑This appeal through leave of the Court is directed against order, dated 17‑1‑1975 of the Lahore High Court; whereby appellant’s application for setting aside the order of abatement of his writ petition, on account of death of a respondent in that petition and for impleading the legal representatives of the deceased, was dismissed.

 

As the question raised before this Court on which leave to appeal was granted is of law relating to the setting aside of the order of abatement, therefore, in the circumstances of this case, it is not necessary to give all the facts of the case except that the application for setting aside of the abatement of the writ petition was made nearly five years after the abatement. The High Court had refused to set aside the abatement both on merit as also on consideration of the law points.

 

Leave to appeal was granted to examine the questions: whether on account of promulgation of the Law Reforms Ordinance, 1972 abatement could have at all taken place; and, whether Article 177 of the Limitation Act was attracted to this case.

 

Learned counsel for the appellant at the very outset stated that due to the effect of certain decided cases, which he did not cite before the Court, he is unable to press the legal points noted in the leave granting order. Relying however on Muhammad Bakhsh v. Jamal P L D 1969 Lah. 642 he seriously contended that the application for setting aside the abatement should have been allowed on merits. He, in particular, relied on the following observation made in the cited case:

 

“The exercise of jurisdiction by the learned trial Court in condoning the delay for a sufficient cause, in my view, does not seem either arbitrary or capricious. The deceased was living far from the village in a different Tehsil and the plaintiff respondents were residing in another Tehsil, and they had no communication with the deceased. Even the defendant‑petitioners did not inform the Court about his death. There were 30 defendants who are the petitioners in these revision petitions. It was difficult for the plaintiff‑respondents to have looked after the welfare or absence of each defendant from the Court. The death of the deceased could not be normally ascertained by the plaintiff respondents.”

 

Learned counsel stated that the facts and circumstances of both the cases‑‑the present one and one under report, are similar, therefore, the High Court should have allowed the application for setting aside the abatement on merits. It may be mentioned that the case of Muhammad Bakhsh was also cited before the learned Judge who passed the impugned order in this case and it was held to be “absolutely distinguishable”.

 

Be that as it may, leave to appeal was not granted in this case to examine the propriety of the order passed by the High Court refusing to set aside the abatement on merits. No justification has been made out to modify the leave granting order, in the circumstances of this case.

 

In the light of the foregoing discussion, there is no force in this appeal and it is liable to be dismissed.

 

Before closing the judgment it needs to be observed that at the end of the arguments learned counsel for the appellant stated that the allotment of land which was the subject‑matter of the Writ petition having been set aside it has become available for transfer and that even now it can be transferred to the appellant. If that is so, the appellant may apply for its transfer in accordance with law.

 

This appeal with the above observation, is dismissed, but there shall be no order as to costs’.

 

M.I./G‑16/S Appeal dismissed.

 

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