2008 PLP 1586 (CLC)

MUHAMMAD KHALID ALVI, J.

Through this single judgment, I propose to decide Civil Revision No.32-D of 2008 and Civil Revision No.65-D of 2008 as common questions of law and facts are involved in both the cases.

2. Brief facts of the case are that respondent No.1 filed a declaratory suit against the petitioners and respondent No.2 (petitioner in Civil Revision No.65-D of 2008) in this case challenging certain mutations in favour of the petitioners and a subsequent mutation by the .petitioners in favour of respondent No.2 Ghulam Nabi. The suit was contested by the defendants and was ultimately decreed by the learned trial Court vide judgment and decree dated 25-11-2006. This decree was separately assailed by the present petitioners and respondent Ghulam Nabi through their respective separate appeals. Incidentally, neither the petitioners impleaded Ghulam Nabi as respondent in their appeal nor Ghulam Nabi impleaded the present petitioners in his appeal. Respondent No.1-Kareem Bakhsh filed an application before the learned Appellate Court seeking dismissal of appeals on the ground of non-impleading of 'necessary parties in the respective appeals. The application was contested. However, the learned Appellate Court vide judgment and decree dated 25-10-2007 while allowing the application of respondent No.1 dismissed both the appeals through separate judgments of the same date. Both these judgments are being, assailed through the instant two civil revisions.

3. Learned counsel for the petitioners with reference to Order XLI, rule 20, C.P.C. contends that it is the inherent power of the learned appellate Court to implead any party in the appeal who was a party in the suit if he is interested in the result of the appeal and adjourn the case for doing the needful. In support, he has relied on 1973 SCMR 420 and 1998 CLC 1857.

4. On the other hand, learned counsel for respondent No.1-plaintiff contends that petitioners never filed any application before the learned Appellate Court for impleading each other in their respective appeals. It is further submitted that after the lapse of time for filing appeal, the left-out parties cannot be impleaded. It is further submitted that even before this Court, no such application has been filed. In support of his contentions. He has relied upon 2007 YLR 3206.

5. I have considered the contentions raised from both sides.

6. It was observed by his lordship while dealing with the case reported as 1998 CLC 1857 that the powers vested in the appellate Court under Order XLI, rules 4, 20 and 33, C.P.C. are not controlled by the provisions of section 22 of the Limitation Act. 'These are inherent powers of the Appellate Court which can be exercised by the Appellate Court at any time.

7. In the instant case, the interested parties were respondent Kareem Bakhsh on the one hand and petitioners and respondent No.2-Ghulam Nabi on the other hand. There was no clash of interest between the petitioners and respondent No.2 Ghulam Nabi. Petitioners and respondent Ghulam Nabi both filed appeals impleading Kareem Bakhsh plaintiff alone as respondent in their appeals. Both appeals came up for hearing before the learned Appellate Court simultaneously. Admittedly, both the set of defendants did not implead each other in their respective appeals but they were before the Court, therefore, it would have been merely hyper-technical objection that they had not impleaded each other in their respective appeal. When all the necessary parties were before the Court then whether an application was made or not, the learned appellate Court should have exercised its powers under rule 20 of Order XLI, C.P.C. and passed a formal order to both the appellants before it to implead the left-out parties. Precisely, same is the ratio of the judgment cited at the bar by the learned counsel for the petitioners i.e. 1973 SCMR

420. Following the dictum, I allow both these revision petitions; set aside the judgment and decree dated 25-10-2007 passed by the learned Appellate Court in both the revisions; remand the case to the learned Appellate Court where the petitioners shall file amended memo of parties by impleading the left-out respondents and the appeals shall be thereafter decided on their respective merits. No order as to costs. H.B.T./M-283/L Case remanded.