1985 PLP 79 (SCMR)

MUHAMMAD AFZAL ZULLAH, J.-- Leave to appeal is sought against judgment dated 17-6-1984 of the Lahore High Court, Rawalpindi Bench; whereby petitioners' (Defendants) civil revision in a suit for ejectment and recovery of rent regarding a property in Islamabad, was dismissed. Respondent No.2 filed the suit impleading himself as the sole plaintiff despite the fact that his wife respondent No. l was admittedly his co-owner, as' mentioned in the plaint itself. The petitioners defendants raised various objections including the one that the suit was bad for non-joinder of the said necessary party. In all nine issues were framed including those on merits. Issue No.l was regarding non- joinder. The learned trial Judge answered it against the plaintiff and further held that the suit failed on this account. Nonetheless he also decided issues on merits in favour of the defendants and as a result of decision on all the issues, dismissed the suit. On plaintiffs' appeal respondent No. l filed an application for being impleaded as plaintiff through amendment of the plaint on the plea that the counsel had thought that on account of some observations in Khalique Ahmad v. Abdul Ghani and another P L D 1973 SC 214 the technical defect was not fatal to the suit. It was allowed amongst others on the ground that a fresh properly instituted suit was not barred and that the normal rule of deciding the matter effectively and completely by avoiding the multiplicity' of the proceedings has to be followed. The appeal was yet to be decided and was pending for this purpose when the petitioners defendants filed a revision in the High Court under section 115, C.P.C. against the order of the appellate Court impleading the respondent No. l in the suit, which having been dismissed, they have moved this petition for leave to appeal. Learned counsel while conceding that the trial Court could implead respondent No. l even without her application under Order I, rule 10(2), C.P.C., that it was within the discretionary power of the appellate Court to do so and that the said respondent was a necessary party, contended nevertheless that a right having accrued to the defendants it could not have been taken away by filling in the lacuna left by the respondent No.2 in the plaint. He also contended that the discretion has not been properly exercised. We do not agree with him. A decision on a vital question even when made in discretionary field and/or on procedural matter might produce effect regarding rights and liabilities. That by itself cannot be a consideration for not making the right decision in accordance with the law and justice. It could not be contended from petitioners' side that the order was in any way without jurisdiction or illegal. Regarding propriety thereof to say the least, it should have been passed by the learned trial Judge even without an application. The lacuna thus left by him has rightly been, for good reasons, filled by the appellate Court. The rulings cited before the High Court have correctly been commented upon. They need not be noticed here because the learned counsel failed to cite Supreme Court cases. According even if the revision in the High Court was competent it was rightly rejected. This petition is, therefore, dismissed. M . Z . M . Petition dismissed.