| Citation(s) |
|---|
| 1965 SLG 100 1965 SLD 100 = 1965 PLD 651 |
Supreme Court of Pakistan
Civil Appeal No. 80 of 1962, decision dated: 2nd February1965. (On appeal from the judgment and order of the HighCourt of West Pakistan, Lahore, dated the 20th March 1956,in Regular First Appeal No. 68 of 1954)
A. R. CORNELIUS, C.J., B. Z. KAIKAUS AND HAMOODUR RAHMAN, JJ
Ghias Muhammad and Siraj-ud-Din Paul Senior Advocates Supreme Court (No Advocate Supreme Court with them) instructed by S. Virasat Hussain Naqvi Attorney for Appellants. M. Anwar Senior Advocate Supreme Court (Iftikhar-ul-Haq Advocate Supreme Court with h
Civil Appeal No. 80 of 1962, decision dated: 2nd February1965. (On appeal from the judgment and order of the HighCourt of West Pakistan, Lahore, dated the 20th March 1956,in Regular First Appeal No. 68 of 1954)
A. R. CORNELIUS, C.J., B. Z. KAIKAUS AND HAMOODUR RAHMAN, JJ
Ghias Muhammad and Siraj-ud-Din Paul Senior Advocates Supreme Court (No Advocate Supreme Court with them) instructed by S. Virasat Hussain Naqvi Attorney for Appellants. M. Anwar Senior Advocate Supreme Court (Iftikhar-ul-Haq Advocate Supreme Court with h
(1) WALI, (2) JAHANIA AND (3) ALLAH DADvs(1) MANAK ALI, (2) LAL AND (3) MURAD
Law: Civil Procedure Code (V of 1908)
Section: OrderXXII.rule4
Law: Specific Relief Act, 1877
Section: 14,15,16,17
Law: Evidence Act, (1 of 1872)
Section: 41,43
(a) Civil Procedure Code (V of 1908) D. XXII, rr. 4 do 11---�Abatement of suit or appeal takes place only as regards deceased defendant or respondent-"Total abatement" - Meaning - Suit abating against one defendant-Dismissal of suit against other defendants justified only if it becomes impossible to proceed--�Abatement does not require order of Court which only "records" fact of abatement-Such order not appealable-Suit has to be dis�missed against living defendants in case of "total abatement" �Appeal lien in such case.Abatement as such takes place only as regards the defendant or respondent who dies and when we speak of "total abatement" of a suit or appeal on the death of one of the defendants or respondents we only mean that on account of the situation that is created by the abatement of the suit as against a party the suit or appeal cannot for one reason or the other proceed at all. In accordance with Order XXII, rule 4, C. P. C. the suit abates only "as against the deceased" defendant, and by virtue of rule 11 in case of appeals "respondent" has to be substituted for "defendant". In the Civil Procedure Code of 1882, the relevant provision was section 368 and according to it the suit abated. There was a difference of opinion amongst the High Court as to whether the suit was to abate totally or only as against the deceased defendant and in the Civil Procedure Code of 1908 the words "as against the deceased defendant" were added so as to set at rest the conflict. Abatement as such takes place therefore only as regards the deceased party and it will greatly add to clarity of thought if the .expression "total abatement" was altogether avoided when dealing with a situation like the present. When a suit has abated as against the deceased defendant but for one reason or the other it cannot proceed at all the proper order to pass would be to dismiss the suit as against the remaining defendants. The abatement itself does not stand in need of an order for it is automatic. The Court simply records that the suit has abated against the deceased defendants. So far as the living defendants are concerned there has to be an order by the Court dismissing it. No…