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P L D 1959 (W. P.) Lahore 500

 

Before Muhammad Yaqub Ali and A. R. Changez, JJ

 

PUNJAB PROVINCE-Defendant-Appellant

 

versus

 

SULTAN KHAN and others-Plaintiff-Respondents

 

Civil Miscellaneous No. 137/C of 1959 and Civil Miscellaneous No. 36/C of 1957, decided on 27th April 1959.

 

Jamil Hussain Rizvi with Muhammad Shafi on 1-4-1959, Muhammad Shafi on 2-4-1959 for Appellant.

 

Mohsin Shah on 1-4-1959 and 2-4-1959 for Respondents,

 

Dates of hearing : 1st and 2nd April 1959.

 

JUDGMENT

 

A. R. CHANGEZ, J.–-This order will dispose of Civil Miscellaneous Petitions Nos. 36/C of 1957 and 137/C of 1959. The relevant facts giving rise to these petitions are as follows :-

 

On the 13th of July, 1949, one Sultan Khan brought a suit against the Punjab Province for recovery of possession of land measuring 4890 kanals 13 marlas situate in the area of mauza Rakh Wan Bhachran, Tehsil Mianwali. This suit was decreed on the 30th of April, 1952. Against this decision, the Punjab Province preferred First Appeal No. 92 of 1952 to this Court and it was admitted on 31st October, 1952. On 24th January, 1956, Sultan Khan respondent died leaving behind four sons, namely, Khuda Bakhsh, Allah Dad, Ilahi Bakhsh, and Malak Banda and one daughter, Mst. Bakht Bhari, as his legal representatives. No application was filed by the Punjab Province as required by Order XXII, rule 4, C. P. C. within the prescribed period of 90 days as provided for in Article 177 Schedule 1 of the Limitation Act, to bring upon the record the legal representatives of Sultan Khan. The appeal, therefore, abated on the 23rd of April, 1956. The appellant also failed to apply under Order XXII, rule 9, C. P. C. for setting aside the abatement within the time allowed by law. Such an application was, however, made on the 14th of January, 1957, in which the names of the four sons of Sultan Khan were mentioned as his legal representatives, and the explanation given for the delay was that the appellant did not know of the death of Sultan Khan and that the Advocate-General had been carrying on correspondence with the officials concerned to ascertain the names of the legal representatives. It was as late as the 16th of March, 1959, that another application was made for bringing on record Mst. Bakht Bhari daughter of Sultan Khan. These petitions have been vehemently opposed by the learned counsel for the legal representatives of Sultan Khan.

 

2. The sole question which requires determination is whether sufficient cause has been shown by the appellant, as a result of which it was prevented for such a long time from submitting the petition for the substitution of the legal representatives of the deceased and for setting aside the abatement. The learned Advocate-General laid special emphasis on two points : (a) that the appellant had no knowledge of the death of Sultan Khan until the 14th of June, 1956, when the office of the Advocate-General was informed about it by the Deputy Registrar of this Court, and (b) that the Advocate-General had been carrying on correspondence with the officials concerned to ascertain the names of the legal representatives and in spite of strenuous efforts made in that behalf, could not know their names until the 2nd of January, 1957.

 

3. The learned counsel for the respondents argued that mere ignorance of the fact of death is not a sufficient excuse for setting aside the abatement under Order XXII, rule 9, C. P. C. There is a large volume of case-law on the subject, but we do not think it is necessary to review all the authorities. Suffice it to say that although there is some conflict of judicial opinion on the point, but the balance of authority is in favour of the view that if the petitioner had no means of knowing of the death of his opponent and he was not negligent then it is a sufficient excuse for not applying in time for the substitution of the legal representatives on the deceased. In this connection, the learned counsel for the respondents relied on Chuni Lai v. Kala Khan (A I R 1922 Lah. 61), Chuni Lal. Tulsiram v. Amin Chand and another (A I R 1933 Lah. 356) and Phulwati Kumari v. Maheshwari Prashad (A I R 1924 Pat. 607), while the learned counsel for the petitioner cited before us, the following rulings :-

 

(1) Mst. Khemi and others v. Keshay Ram and others A I R 1933 Lah.224.

 

(2) Sham Das v. Mahabir Das and others A I R 1933 Lah. 916.

 

(3) Mfr Wajid Ali v. Fagoo Mandal A I R 1938 Pat. 125.

 

(4) Ram Ranbijaya Prasad Singh v. Madho Turha and others A I R 1939 Pat. 623.

 

(5) Secretary of State v. Vinjamuri Kistnamacharyulu A I R 1938 Mad. 218.

 

4. We have carefully read these rulings and we are of the opinion that no hard and fast rule can be laid down in the matter and that each case must be decided on its own fact. However, in view of the provisions of law in this regard, it appear to be the duty of a litigant to keep himself informed of the existence of his adversary, but if he can satisfy the Court that in, view of the circumstances, of the case, he could not have known of B the death of his opponent and there was no negligence or want of diligence on his part then it is a sufficient cause within the meaning of the provisions of Order XXII, rule 9, C. P. C. to excuse the delay in filing an application for bringing upon the record the legal representatives of the deceased and for setting aside the abatement. In the present case, it is obvious that the appellant could not have known of the death of Sultan Khan especially because he had already been served with the notice of the appeal and there was no duty case upon the appellant to remain in touch with him thereafter. We do not think it was incumbent upon the appellant to make periodical inquiries, whether he was alive or dead. There is nothing on the record to show that the Collector or any other Government official concerned with this appeal, was aware of the death of Sultan Khan until the 14th June, 1956. We do not think that in the circumstances of the case any negligence or want of due diligence can be attributed to the appellant. In this view of the matter, we see no force in the contention raised on behalf of the legal representatives of Sultan Khan, that ignorance of death was not a sufficient cause to excuse the delay in filing these petitions.

 

5. This, however, does not solve the matter, because admittedly the Advocate-General had learnt about the death of Sultan khan on the 14th of June, 1956, and the petition for the substitution of his legal representatives was not made until the 14th of January, 1957. That is to say the learned Advocate-General took full seven months in ascertaining the names of the legal representatives and in submitting the petition. Learned counsel for the respondents strenuously argued that it amounted to gross negligence on the part of the agents of the appellant in sleeping over the matter for such a long time. It is now well settled that no formal order of abatement is necessary. If the application is not made within the prescribed time to bring upon the record the legal representatives of a deceased respondent the appeal automatically abates against him. Reference in this connection may be made to Ram Gopal v. Har Krishan (A I R 1925 Lah. 598), and Qaim v. Nura (A I R 1926 Lah. 234). The present appeal had abated on the 23rd of April, 1956. The appellant could have applied under Order XXII rule 9, C. P. C, to have the abatement set aside within 60 days of the date of the abatement as provided for in Article 171, Schedule I of the Limitation Act. Sub-rule (3) of rule 9 of Order XXII, C. P. C., however provides specifically that section 5 of the Limitation Act shall apply to such an application. We have, therefore, to consider whether sufficient cause has been shown for the extension of time. It needs no comment that no discrimination can be made between the Government and an ordinary litigant. During the course of the arguments it was suggested that it is well known that the governmental machinery moves slowly and consequently the Government is entitled to special consideration in such matters: We would like to make it perfectly clear that no such indulgence can be shown merely because the party concerned is the State or the Provincial Government. Section 3 of the Limitation Act imposes a manda tory duty upon Courts to dismiss a suit, appeal or an application if it has been instituted after the prescribed period of limitation. And a party wishing to take advantage of section 5 of the Limitation Act must, therefore, satisfy the Court that it had not been negligent and had been prosecuting its case with due diligence and care. The section no doubt gives a wide discretion in determining what is sufficient cause, but the discretion has to be exercised judicially and not arbitrarily. And although we are of the view that the expression “sufficient cause” should be liberally construed so as to advance substantial justice, yet it must be determined by a reference to the circumstances of the particular case.

 

6. We, therefore, proceed to examine the facts of the present case. The affidavit of Mr. Abid Husain, Head Clerk of the Office of the Advocate-General shows that although the office came to know of the death of Sultan Khan on the 14th of June, 1956, on receipt of the letter from the Deputy Registrar of the High Court of West Pakistan, Lahore, yet it was on the 19th of June, 1956, that an endorsement was made marked “top priority” on that letter, and it was sent to the Deputy Commissioner, Mianwali, asking him to supply the names `and addresses of the legal representatives of the deceased. It is difficult to understand why five days were spent in making the aforesaid endorsement. But it is all the more surprising that the letter was forwarded to Deputy Commissioner, Mianwali, although in the copy of the decree filed along with the appeal, the address of Sultan Khan was given as follows :-

 

“Sultan Khan son of Malik Sher Khan, Bandial by caste, of Mauza Bandial Tahsil and District Shahpur”.

 

The letter, therefore, should have been addressed to the Deputy Commissioner, Sargodha. Assuming that this was done inadver tently or through some mistake, there is no explanation whatsoever why the Deputy Commissioner, Mianwali, could not send a reply until the 29th of November, 1956. It is stated in the affidavit that several reminders were sent to the Deputy Commissioner, Mianwali, but it was only on the 1st of December 1956 that a reply was received informing that the required information should be obtained through the Deputy Commissioner, Sargodha. We have not been taken into confidence as to why the papers remained in cold storage for more than five months in the office of the Deputy Commissioner, Mianwali. No material has been placed before us to enable us to judge whether the matter was pursued at all during this period. We have, therefore, no hasitation in saying that the officials concerned were grossly negligent in the discharge of their duties. It was on the 5th of December, 1956, that a letter was sent to the Deputy Commissioner, Sargodha, which was followed by a reminder on the 13th of December, 1956. On the 19th of December, 1956, the Deputy Commissioner, Sargodha, asked the Sub-Divisional Officer, Jauharabad, to furnish the necessary information who, in turn, sent the information on the 31st of December, 1956, in which the names of the four sons and the daughter of the deceased and their addresses were given. This letter was received in the Advocate-General’s Office on the 2nd of January, 1957, and it took another 12 days to draft and submit the ten-line petition from which the name of the daughter of the deceased was, for some unknown reason, omitted. This petition contains no prayer for condoning the delay or for even setting aside the abatement. An affidavit was attached to it which is vague and inconclusive. It was only in March, 1959, that a fresh affidavit of the Head Clerk of the Advocate-General’s Office was filed. In view of .the circumstances narrated above, it does not require any argument to show that the agents of the appellant had been negligent throughout. On learning of the death of Sultan Khan, prompt action should have been taken by the officials concerned. If the matter had been pursued diligently and with care and attention the necessary information could have been obtained within a fortnight at the most, but it took full seven months to ascertain the names and addresses of the legal representatives of the deceased. The officials of the Government are expected to act with at least as much diligence as is expected from an ordinary litigant. In the case of Superintendent of Central Excise Lyallpur v. Ch. Faqir Muhammad (P L D 1958 S C (Pak.) 167), their Lordships of the Supreme Court of Pakistan had an occasion to deal with a similar matter and were pleased to observe as follows :-

 

“No extended period of limitation is provided for Governments, as litigants before this Court. This is because it is felt that enjoying unusual facilities for preparation and conduct of their cases, as against those available to private litigants, Governments do not need any greater latitute in respect of limitation than the ordinary litigant. The reasons advanced for the delay are not, in our opinion, convincing, and we wish to emphasize the necessity for as great vigilance on the part of Governments in these matters as the Court is entitled to expect from, and enforces against, private litigants”.

 

In the light of the principle laid down in this ruling and having regard to the material on the record, we are constrained to hold that the explanation offered on behalf of the appellant for the inordinate delay in filing these petitions is not satisfactory and, in our opinion, it does not constitute sufficient cause for claiming indulgence under section 5 of the Limitation Act. We accordingly dismiss these petitions. The result is that Regular First Appeal No. 92 of 1952 stands abated and is dismissed with costs.

 

7. Before concluding, we would like to add that consider able property yeas involved in the case but oil account of the negligence exhibited by its employees at the various stages, the appellant has been deprived of its right to address us on the merits of the case. A copy of this judgment may be sent to the Chief Secretary to the Government of West Pakistan for taking such action as he may deem fit.

 

K. B. A./A. H. Petitions dismissed.

 

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