1985 PLP 67 (SCMR)

SHAFIUR RAHMAN, J.‑‑ Leave to appeal was granted to the defendants whose Regular First Appeal was dismissed by the Lahore High Court by its judgment dated 8‑3‑1976 to examine whether on the facts of the case, the law laid down in Labhu Ram and others v. Ram Pasrtap and others A I R 1944 Lab. 76 had been correctly applied. On the death of one Hussain Khan, his two sons Iqbal and Yaqoob now represented by their successors‑in‑interest who are respondents instituted a suit for partition of the joint property comprising two houses. The shit was directed against the two other brothers Suleman and Abdul Rehman, the appellants. A preliminary decree determining the share of each was passed on 13‑7‑1954. An appeal filed against it was dismissed on 20‑1‑1955 as having been compromised. After protracted proceedings by the Local Commissioner, a mode of partition was adopted and a final decree was passed on 3‑2‑1964. Against the final decree a regular first appeal was filed and all the heirs of Muhammad Yaqoob (one of the original plaintiffs who had died before the final decree was passed) were impleaded. However, his only son Muhammad Iqbal was impleaded as respondent No.6 in appeal in the words reproduced hereunder:‑ "6.Muhammad Yaqub Khan (deceased) through Muhammad Afzal his son caste Rajput resident of House No.25, Gali Primary School Mohallah Chahpichwarah, Mozang, Lahore." The copy of the decree sheet was not, it appears, available to the appellants when this first appeal was filed in the High ,Court. A copy of the judgment appealed against was filed and in the title it mentioned the heirs of Muhammad Yaqoob in the following words:‑ "

2. Muhammad Yakub deceased represented by Islaman Bibi widow of Muhammad Yaqub Muhammad Iqbal son of Muhammad Yakub Muhamuda Begum,Maqsooda Begum daughters of Muhammad Yakub Zubaida Begum‑‑‑deceased daughter of Muhammad Yakub through Abdul Majid husband, and 3.Abdul Rahman, residents of House No.25, School Wali Gali, Chah Pichwara, Mozang, Lahore." An objection was raised by the office on 7‑5‑1964 to the following effect:‑ "Memo. of parties names does not reconcile with the names given in the copy of the judgment appealed against." This objection was replied to in the following terms:‑ "The memo. of parties names as filed with the appeal is correct. There appears to be a mistake in the copy of judgment." A copy of the decree sheet was subsequently filed and it contained the same entries with regard to the legal representatives of Muhammad Yaqub as was contained in the judgment. It appears from the proceedings taken in the Registry of the High Court that Muhammad Iqbal was served as an heir of Muhammad Yaqub deceased notwithstanding the fact that his name had not been correctly entered in the list of respondents to the appeal. There is an affidavit sworn by him on 17‑4‑1969 submitted along with an application filed under section 151, C.P.C. (1388/C/69) praying for dispensing with the printing of the record of the Local Commissioner. On 11‑11‑1975 there is an application (No.C.M.4874/C/75) by Muhammad Iqbal respondent for the acceleration of the hearing in the appeal. It is supported by an affidavit of Muhammad Iqbal dated 12‑11‑1975. It was in this background of proceedings that an objection was raised at the hearing of the appeal which was taken note of in the following words:‑ "During the course of this protracted litigation Muhammad Ibrahim and Muhammad Yaqoob had died. Suleman died during the pendency of this appeal. While making the present appeal, all the legal representatives of the deceased were added as respondents but Muhammad Iqbal son of Muhammad Yaqoob was left to be included as such. It is not disputed that it is a case for partition in which each party being a co‑sharer jointly was a necessary party, and without any one of them a complete and effective decree cannot be passed. Muhammad Iqbal was a necessary party in the sense that the appeal could not proceed in his absence and the appellant could have very well filed an appeal against him also in time, and without that he has acquired a very valuable right." This objection was disposed of by the High Court in the following words:‑ "The learned counsel for the appellants has admitted that he has not been added, but contended that this Court has ample powers to invoke the provisions of Order"XLI, rule 20, C.P.C. read with Order XLI, rule 33 and Order I, rule 10, C.P.C. I do not agree with him. If a joint decree were passed in favour of a number of parties and an appeal were preferred against only some of the joint decree‑holders leaving out the rest and the period of limitation were to expire, then it would be too late for the appellate Court to implead such joint decree‑holders as respondents in the appeal, so as to consider the appeal against them and pass a decree against them. In Labhu Ram and others v. Ram Partap and others A I R 1944 Lab. 76 it is laid down that when once time for an appeal has run out, it is not possible for an appellant subsequently to implead those defendants who were not originally impleaded as respondents in the appeal. In a case in which a necessary party to an appeal has been omitted, the Court cannot exercise any power vested in it under Order XLI, rule 20, C.P.C. to cover the omission, if limitation had already expired. No question of section 5, Limitation Act would arise in such cases." In the present appeal one of the appellants was present but the respondents were represented by Mr.Bashir Ahmad Ansari, Advocate, whom we have heard in the matter. A recital of the facts and the proceedings taken clearly shows that all the heirs of Muhammad Yaqub had been impleaded, served and were represented in the proceedings in the High Court before such an objection was raised. The mistake in naming Muhammad Iqbal, it appears, was clearly a typographical error, a clerical mistake and an accidental slip. All the other particulars were present. Muhammad Iqbal had participated in the proceedings treating himself to be a respondent. This fact distinguishes the present case from that of Labhu Ram where one of the necessary parties had not been impleaded at all and an application had been made under Order XLI, rule 20, C.P.C. for impleading him long after the period of limitation therefore had expired. In terms, therefore, the decision in Labhu Ram's case was not relevant and did not govern the present case. We accept this appeal, set aside the impugned judgment of the High Court and remand the proceedings to the High Court to dispose of the regular first appeal on merits. No order as to costs. M. Z. M.????????????????????????????????????????????????????????????????????????????????????????????? Appeal accepted.