AB AHAD KHAN Vs. AMMA KHAN

JUDGEMENT

(1.) THE first appellate court on 17 -6 -1983 has allowed the appeal filed by the respondents herein before it and set aside the decree and judgment of the court below on the ground that one of the defenders in the case namely, Mst. Farzi had died during the pendency of the suit. His death, according to the first appellate court, would result in the abatement of the suit. On what date Mst. Farzi had died was required to be enquired into by the trial court.

(2.) IN my opinion the order of the first appellate court is not correct. It should have asked the trial court to submit a report about the date of death of Mst. Farzi and then considered the effect of Mst Farzis death himself upon the court. For knowing as to when Mst. Farzi, died, the first appellate court should not have set aside the decree and judgment of the trial court. In case Mst, Farzi had died after the passing of the decree and judgment by the trial court, that would materially alter the position, and probably the question of abatement would not have then arisen. The first appellate court was seized of the matter, therefore, it had to decide the appeal after knowing the full facts and after knowing about the date of death of Mst. Farzi. Under Order 41 Rule 25 Civil Pr: Code in fact an issue should have been framed by the first appellate court asking the trial court to submit a report in respect of the death of Mst. Farzi, Its effect could be considered by the First Appellate court itself. For this reason setting aside the decree and judgment of the trial court is not warranted. The order of the First Appellate court dated: 17 -6 -1983 cannot be, therefore, sustained. Allowing this revision petitions, I set aside the order dated: 17 -6 -1983 passed by the First Appellate court and direct it to consider the effect of death of Mst. Farzi itself in the main appeal after obtained the report in this regard from the trial court within a period of three months. The First Appellate court shall revive the appeal filed by the respondents herein before it and pass a fresh order in the light of the observations made hereinabove. The petitioner through his counsel is directed to appear before the First Appellate court on 30 -10 -1984.