2019 PLP 1811 (CLC)

CH. MUHAMMAD IQBAL, J.

Through this revision petition, the petitioners have challenged the judgment and decree dated 30.01.2012, passed by the learned Civil Judge, Chunian whereby the suit for possession through specific performance filed by the respondents was decreed and the judgment and decree dated 15.12.2015, passed by the learned Additional District Judge, Chunian dismissing the appeal of the petitioners.

2. Brief facts of the case are that the respondents/plaintiffs filed a suit for possession through specific performance against the petitioners/defendants alleging therein that the defendants Nos.2 to 8 had appointed Liaqat Zaheer Khawaja, defendant No.1, as their general attorney vide registered deed No.77 dated 06.01.1981 for sale and purchase of suit property measuring 03 Kanal 14 Marla comprising Khewat No.118 Khatooni No.1844, Khasra No.3192 situated in Moza Chunian Otaarr. The general attorney on his own behalf as well as on behalf of other defendants executed an agreement to sell dated 14.01.1982 in respect of the suit property with Khushi Muhammad; predecessor-in-interest of the respondents and after receiving total consideration of Rs.60,000/-, handed over the possession of the suit property. Khushi Muhammad, after getting possession, constructed his house and rented out some portion of the property to one Muhammad Aqeel who failed to pay the rent upon which Khushi Muhammad filed ejectment petition which was accepted by the learned Rent Controller, Chunian and he got possession of the same after due process of law. Khushi Muhammad also got installed connections of telephone and electricity and also used to pay property tax but he during his lifetime could not get register the sale deed due to ailment and the respondents/plaintiffs came to know 20 days prior to the institution of the suit that the petitioners/defendants alienated the suit property to the defendants Nos.9 to 15 through registered sale deed No.722 dated 01.07.2010. The said defendants were impleaded by the respondents/plaintiffs in the suit for specific performance of agreement to sell. The respondents filed contesting written statement on factual as well as legal parlances and denied the assertion articulated in the plaint. The learned trial Court framed issues, recorded evidence of the parties and finally decreed the suit vide judgment and decree dated 30.01.2012. The petitioners filed an appeal on 29.02.2012 and during the pendency of the appeal, they also filed an application under Order XLI, Rule 20, C.P.C on 20.06.2015 for impleading the leftout unarrayed decree holding persons as respondents in the appeal. The respondents filed reply of the application. The learned appellate Court vide judgment and decree dated 15.12.2015 rejected the application and also dismissed the appeal being incompetent and not maintainable. Hence, this civil revision.

3. Learned counsel for the petitioners submits that inadvertently some of the decree holders/plaintiffs could not be impleaded as respondents in the appeal and under Order XLI, Rule 20, C.P.C. the Court has jurisdiction to allow the petitioners to bring on record the decree holders/plaintiffs as respondents who were inadvertently not made party at the time of filing the appeal but the request of the petitioners was illegally and unlawfully turned down by the learned appellate Court, as such, the judgment and decree of the learned appellate Court is not sustainable in the eyes of law. Further submits that the appeal was filed through attorney which resulted in the occurrence of the omission, which is curable defect, as such, the findings of the learned appellate Court are not sustainable.

4. Learned counsel for the respondents submits that the petitioners filed appeal on 29.02.2012 whereas the application under Order XLI, rule 20, C.P.C. was filed on 20.06.2015 after lapse of 03 years and 04 months and the decree holders/plaintiffs also were not made party in the appeal were necessary party as per law and the learned appellate Court rightly rejected the application and dismissed the appeal being incompetent on the ground that the petitioners have not been arrayed as party in the appeal, as such, no illegality has been committed.

5. Heard.

6. The respondents/plaintiffs, legal heirs of Khushi Muhammad, filed suit for specific performance on 03.01.2008 against the petitioners which was decreed on 30.01.2012 in their favour. The petitioners filed appeal on 29.02.2012 without arraying the persons mentioned herein below as respondents.

1. Mst. Zainab Bibi, widow of Sufi Mushtaq Ahmad,

2. Mst. Kaneez Fatima widow of Muhammad Mansha,

3. Mst. Tahira Basit widow of Basit Ali,

4. Muhammad Ashfaq Qamar (minor),

5. Sabila Yousaf (minor), the successors of late Muhammad Yousaf Qamar as party. Petitioners filed application under Order XLI, Rule 20, C.P.C. on 20.06.2015 to implead the aforementioned plaintiffs/decree holders as respondents after lapse of 03 years and 04 months, which (application) was hopelessly time barred. The omission of non-impleading the necessary parties to the appeal within the prescribed period of limitation gives rise to the accrual of valuable right to other party which (right) cannot be taken away conveniently but the petitioner filed application for impleading the omitted necessary parties after the expiry of period of limitation of filing the appeal. The provision of Order XLI, Rule 20, C.P.C was not intended to overrule other provisions regarding filing of an appeal and limitation applicable thereto as contained in the Limitation Act, 1908. The necessary party to appeal was not arrayed as respondent in appeal subsequently it (party) cannot be added as respondent after the expiry of period of limitation. Reliance is placed on Qasim Khan and another v. Mst. Malkai and others [PLD 1963 (W.P.) Peshawar 58]. Relevant portion of the judgment (supra) is reproduced as under. "6. ..It is, therefore, clear that Qasim, who instituted the second appeal, had no legal right to apply for bringing Muhib Ali as a respondent on the record after the expiration of the period of limitation." (emphasis supplied) Further reliance is placed on Sakhi Muhammad and 10 others v. Noor Muhammad and 28 others [PLD 1988 SC (AJ&K) 156]. Relevant portion of the judgment (supra) is reproduced as under: "

7. Order XLI, Rule 20, C.P.C. postulates that where it appears to the Court at the hearing that any person who was a party to the suit in the Court from whose decree the appeal is preferred, but has not been made a party to the appeal and he is interested in the result of appeal, the Court is empowered to adjourn the hearing and to issue direction that such person may be made a respondent. These provisions confer a discretion on the appellate Court to direct for inclusion of the name of the person who was party to the suit and was interested in the result of appeal, but was left out in the appeal, to be made a respondent, so that the point at issue was decided conclusively. The rule was introduced for convenience of the parties and facility of the decision. The discretion conferred under this rule is to be exercised very sparingly only in fit cases where the negligence or omission to implead the necessary party, is bona fide supported by sufficient reason. Otherwise on lapse of period of limitation, impleading necessary party is not allowed." (emphasis supplied)" Reliance is also placed on Abdul Qadir and 5 others v. Muhammad Umar and others (PLD 1987 Lahore 232).

7. Admittedly the aforementioned plaintiffs/decree holders are necessary parties and without impleading them no effective decree can be passed but they have not been impleaded as party in appeal which flaw cast negative impact on the competence of the said appeal and non-impleading of necessary party, the appeal will stand abated in toto/incompetent, as resolved by the Hon'ble Supreme Court of Pakistan in a judgment cited as Muhammad Jamil v. (1) The Chairman, Industrial Court, West Pakistan and (2) The Orient Match Factory, Limited Shandara (PLD 1964 SC 559) as under: "Mr. Zaman has prayed for condonation of the delay. No doubt under Order XLI, rule 20 of the Code of Civil Procedure the Court has power in a proper case to allow a necessary party to be added as respondent, but the power to take the action is discretionary and should not be exercised in case of extreme neglect. On 13th February 1963, the Court required suo motu why the employer was not added as a party in this case and the appellant thereafter on 19th February 1963 filed a petition for adding the employer as a respondent in the appeal. He however, even then did not file any petition for condonation of the delay. In the petition he merely stated that through inadvertence he did not implead the employer as a party. The employer has acquired a valuable right which we do not think should be taken away from him in the circumstances of the present case. The preliminary objection therefore ought to prevail. (emphasis supplied) Another reliance is placed on the case reported as Mst. Maqbool Begum and others v. Gullan and others (PLD 1982 SC 46), the Hon'ble Supreme Court of Pakistan has resolved this controversy as under: "5. ...... In our opinion this was a clear case of an incompetent and not maintainable appeal due to non impleadment of necessary parties, and as the subject-matter of the dispute, namely the impugned sale of year 1951 in favour of Muhammad Yaqub (vendee/defendant) (now represented by some of his legal representatives namely the petitioners) was an indivisible transaction, therefore, the High Court was justified in holding that the appeal had abated in toto and was not maintainable for the fatal infirmity hereinbefore mentioned. It was argued that if some of the heirs of the vendee had not been impleaded, at the most it could affect only the shares of the non-impleaded heirs inasmuch as according to Muhammadan Law every heir succeeds only to the extent of his respective share along with others though as tenants in common. The contention has no merit inasmuch as the present case is to be examined from the point of view of the oneness of the sale above-mentioned and not parts of that sale which was to stand or fall as a whole." (emphasis supplied) The above principle has been reiterated in the case reported as Subah Sadiq v. Mst. Rajan (Since Dead) through her Legal Heirs and others (PLD 2006 Lah. 585), wherein it is held as under: "In the petition (C.R.No.184/2005) filed by Subah Sadiq, Rakhsana Shaheen has not been impleaded as party whereas in the revision petition (C.R.No.2367/2005) filed by legal representatives of Mst. Rajan, Subah Sadiq has not been impleaded as party. This itself being a fatal defect would have entailed dismissal of both the revision petitions. Moreover, another defect noticeable is that before the lower appellate Court even similar position prevailed. The learned counsel for the petitioners in both the petition could not advance any convincing explanation for not impleading necessary parties either in appeal or in revision petitions here. Thus even appeal before the lower appellate Court were not competent in absence of the necessary parties. In Muhammad Suleman v. Abdul Rashid and 13 others (PLD 1987 Lahore 387) such a defect was considered to be fatal for the maintenance of appeal/revision." (emphasis supplied)

8. In addition to the above the petitioners themselves admitted in the application that the non-impleaded persons are necessary party and even otherwise they were plaintiffs of the suit before the trial court but they were omitted whereas at the time of filing of the application for the impleading them as party (respondent) the statutory period of limitation had already been expired but the petitioner has never made any endeavor to file application for condonation of delay and it is settled that non-impleading of a necessary party renders the very appeal as incompetent.

9. Learned counsel for the petitioners has not been able to point out any illegality or material irregularity in the impugned judgment and decree passed by the learned appellate Court and has also not identified any jurisdictional defect. The learned appellate Court, after taking into consideration all the aforesaid facts and circumstances of the case, rightly dismissed the appeal of the petitioners being non-maintainable and incompetent.

10. In view of the dictum laid down by the Hon'ble Supreme Court of Pakistan as well as this Court, supra, the appeal filed by the petitioners was incompetent, which has rightly been dismissed by the appellate court. No illegality has been pointed out in the impugned judgment and decree calling for any interference by this Court in its revisional jurisdiction, as such, this civil revision having no merit is hereby dismissed. No order as to costs. ZC/L-7/L Revision dismissed.