2003 PLP 231 (MLD)

Abdul Waheed for Respondents. Date of hearing: 18th July, 2002. The present application, filed under section 5 of the Limitation Act, by the appellants, seeks condonation of delay in filing the present appeal. It has been stated in the application that although the appeal against order dated 10‑5‑2001, passed by learned Civil Judge, was competent before this Court, yet due to misunderstanding, the appellants filed the appeal before the learned District Judge.

2. In the above perspective, the learned counsel for the appellants has contended that as the filing of the appeal before the learned District Judge, was neither intentional nor deliberate and it was due to bona fide mistake on the part of the learned counsel, therefore, time spent in prosecuting the appeal before the learned District Judge may be condoned. The application has not seriously been opposed by learned counsel for the respondents.

3. In view of the contents of the application, which are supported by an affidavit, there are sufficient reasons, in the present case, to condone the delay in filing the appeal, therefore, I am inclined to accept the present application. Resultantly, the application is allowed and the delay in filing the present appeal is hereby condoned. C.M. stands disposed of. Muhammad Akram etc., through the filing of the present appeal, have called in question order, dated 16‑5‑2001, whereby the learned Civil Judge dismissed appellants' application under Order 22, rule 10, C.P.C., for their substitution in the suit.

2. Facts leading to the filing of the present appeal are that Muhammad Shafi, the predecessor‑in‑interest of the respondents, filed a suit for declaration against one Muhammad Fazil, who died during the pendency of the suit and his legal heirs were impleaded in the suit. The appellants claiming to be purchasers of the suit property, from Muhammad Fazil, filed application under Order 1; rule 10, C.P.C., for their impleadment in the suit as defendants, but the same was dismissed by the learned Civil Judge, appeal against the said order was also rejected and although the said matter was agitated by filing a Constitutional Petition (W.P. No.23916 of 2000), yet the appellants remained unsuccessful. Later on, the appellants filed an application under Order 22, rule 10, C.P.C., before the learned Civil Judge, alleging therein that during his lifetime, Muhammad Fazil, alienated the property in question, for consideration, in favour of the appellants, Mutation No.875 dated 25‑3‑1996, was also entered and since then the appellants are in possession of the land in question, as complete owners. It was further stated in the petition that since the rights in the property have been transferred during the pendency of the suit, therefore, they may be substituted in. place of the legal heirs of Muhammad Fazil. Respondents as well as legal heirs of Muhammad Fazil, resisted that application and resultantly the learned, Civil Judge, after finding that the previously instituted application, under Order 1, rule 10, C.P.C., had been dismissed and that the appellants have purchased the property during the pendency of the suit, therefore, they are not entitled to be substituted, dismissed the said application vide order, dated 16‑5‑2001. Aggrieved by the said order, the appellants filed an appeal before the learned Additional District Judge, but the same was returned, vide order, dated 23‑8‑2001, on account of lack of pecuniary jurisdiction, hence, the present appeal.

3. The learned counsel for the appellants has contended that since the appellants have purchased the property during the pendency of the suit, therefore, under the provisions of Order 22, rule 10, C.P.C., therefore, they are entitled to be substituted in place of Muhammad Fazil and after his death his legal heirs, and also to continue with the suit, as they are bona fide purchasers for consideration of the land in question. The learned counsel for the respondents has contested the revision petition, submitting therein that they are not bona fide purchasers, they gave full knowledge of the pendency of the suit and as such cannot be impleaded.

4. Upon the examination of provisions of Order 22, rule 10, C.P.C., I find that in case of assignment, creation or devolution of any interest during the pendency of suit, the Court can grant leave to the assignee to continue with the proceedings. In the present case, as the appellants have purchased the property in question, which is evident from the entry of Mutation No.875 dated 25‑3‑1996, therefore, there are sufficient reasons to believe that the rights in the property, have been assigned in favour of the appellants. It has been held in Mst. Suraya Begum and others v. Mst. Subhan Begum and another (1992 SCMR 652), that even Appellate. Court has jurisdiction td implead as assignee, as a party to the appeal, even if the assignment was made in his favour during the pendency of the appeal. In view of the law declared by Hon'ble Supreme Court of Pakistan, I am inclined to accept the present application.

5. In view of the above, the appeal stands accepted and the impugned order, dated 16‑5‑2001, passed by learned Civil Judge, is hereby set aside with no order as to costs. The result would be that the application filed by the appellants under Order 22, rule 10, C.P.C., is accepted, appellants are allowed to be impleaded as party in the suit and they are permitted to continue with the suit. The learned Civil Judge is directed to decide the main suit, within a period of three months from the receipt of this order, of course in accordance with law.? H.B.T./M‑1560/L??????? Appeal accepted.