P L D 1975 Peshawar 250 (PLP)

This Revision petition by Doctor Mohammad Ramzan is the outcome of the following facts- Abdul Latif Khan and Samandar Khan brought a suit against Mohammad Ramzan and Mian Dad for perpetual injunction with the prayer for restraining, the defendants from construction on the path which runs between Khasra Nos. 1810/1, 1810/2 and 1807 on one side and Khasra No. 1808 on the other side the latter being the ownership of Mohammad Ramzan defen dant No.

1. Defendant No. 2 is the Contractor. The suit was decreed. Appeal was preferred by Doctor Mohammad Ramzan. However, defendant No. 2 was not impleaded. The appeal was dismissed on the ground, that defendant No. 2 being a necessary party, had not been impleaded. The question that falls for determination by this Court is: "Whether the non -joinder of defendant No. 2 (the contractor) affects the propriety of the appeal of Doctor Mohammad Ramzan owner of the property in suit?

2. It was contended by the learned counsel for the petitioner that in the plaint, defendant No. 2 is shown as a contractor, having no interest in the matter beyond that of a servant; therefore, his presence as a party was not necessary in order to enable the Court to effectually and completely adjudi cate upon and settle the questions involved in the suit; and that the order of injunction could be given effect to without impleading him as a party. The general rule is that on an appeal by one of the defendants, the appellate Court can reverse or vary the decree of the trial Court only in favour of the appealing defendant. This was exactly the case here. However, by the application of rule 4 of Order XLI, Cr. P. C. the Court below could have proceeded to meet the ends of justice. As stated earlier, the interest of the contractor was common rather subordinate to that of the petitioner and an effective decree could be passed in his absence. In the case of Ambica Prosad Singh v. Pardip Singh and others (A I R 1915 Cal. 618) it was held:- "It is not necessary for the application of Order XLI, rule 4, Civil P. C., that the decree should proceed on every ground common to all the parties. It is quite sufficient if it proceeds on any ground common to the party to which the appellant belongs..." Similar view was taken in the case of Abdur Rehman v. Bashir All (P L D 1962 Dacca 23).

3. The learned counsel for the respondents quoted the case of Shah Muhammad and others v. Muhammad Bakhsh (PLD 1972 SC 321) in support of the view taken by the learned lower appellate Court. The cited case supports the view I am taking of the matter of which the relevant portion reads: "The provision of Order XLI, rule 4, C. P. C. is merely an enabling provision which confers a privilege on one of the plaintiffs or defendants to prefer an appeal from a decree which proceeds on any ground common to all the plaintiffs or to all the defendants. . ."

4. The learned appellate Court appears to have mis-informed himself with regard to the provisions of Order XLI, C. P. C. in conferring the powers upon an Appellate Court to interfere in a proper case It was the intention of the Legislature that this power should be exercised. The perusal of the facts of the case in the trial Court reveals that the defence of both the defendants was common and the judgment and decree of the trial Court was complete against them. This view is supported by the case of Muhammad Rassan v. Zaffar Ali Khan and others (P L D 1962 Pesh. 199), wherein it was held that:- "Order XLI, rule 4, C. P. C. was applicable to the circumstances of the case and the appellate Court was competent to grant the full relief, notwithstanding that one of the vendees had not been arrayed as appellant."

5. The decree passed by the Court of first instance proceeded upon a ground common to both the defendants, in which the interest of the appealing defendant was paramount and the brunt of the decree was to be borne by hi alone. The result, therefore, is that this revision is allowed and the judgment and decree passed by the Appellate Court are set aside and the case is remanded to the lower appellate Court for decision on merits. However, there shall be no order as to costs. Revision allowed. Case remanded.