1993 PLP '2174 (CLC)

‑‑‑‑OXLI, R.1 & S.115‑‑‑One co‑plaintiff not joining in filing appeal Application to implead such plaintiff in appeal as a necessary party was dismissed by Appellate Court‑‑‑Validity‑‑‑Refusing application to implead co -plaintiff as a party in appeal had resulted in miscarriage of justice‑‑‑Dismissal of appeal as having not been properly constituted was illegal and without lawful authority‑‑‑Jurisdiction exercised by Appellate Court in dismissing appeal for non‑joinder of a party in appeal was illegal and irregular‑‑Case was remanded for decision afresh‑‑‑Petitioners were allowed to file fresh memorandum of appeal impleading co‑plaintiff as a party in appeal. Tanveer Bashir Ansari for Petitioners. Raja Ajaib Khan for Respondents. Date of hearing: 26th May, 1993. The petitioners Nos.1 to 3 in this civil revision filed a suit for possession of immovable property situate in Rawalpindi City. Qurban Hussain son of Noor Alam petitioner No.4 and Muhammad Sarwar alias Ghulam Sarwar were impleaded as parties to the suit subsequently on their application as defendants Nos.15 and

16. Subsequently on their request they were transposed as plaintiffs Nos.4 and

5. The suit was contested by the defendants and was ultimately dismissed by learned Civil Judge, Rawalpindi vide judgment and decree dated 19‑6‑1984. Name of Ghulam Sarwar co‑plaintiff of the petitioner however was left out of the decree‑sheet prepared by the trial Court and the copy supplied to the petitioners for the purpose of filing in appeal did not reflect his name as a co‑plaintiff. In the copy of the judgment also parties name were not mentioned. Muhammad Sarwar alias Ghulam Sarwar did not join the petitioners to file an appeal against judgment and decree rendered by the trial Court, consequently, the petitioners filed regular first appeal before the District Court of Rawalpindi. Name of Muhammad Sarwar alias Ghulam Sarwar could not be mentioned as co‑appellant as he did not join the appellants in appeal and as a respondent for the reasons that his name was not reflected in the copy of the decree‑sheet supplied to the petitioner as a party to the suit. The appeal was ultimately heard by the learned Additional District Judge, Rawalpindi. An objection was taken on behalf of the respondents that Muhammad Sarwar alias Ghulam Sarwar who was a party to the original suit having been left out, the appeal is not properly constituted. An application for his impleadment as a party was made by the petitioner. Learned Additional District Judge, however, did not allow the application and dismissed the appeal vide judgment and decree dated 8‑10‑1985 as having not been property constituted Hence this civil revision.

2. Mr. Tanvir Bashir Ansari, Advocate, has appeared on behalf of the petitioners whereas Raja Ajaib Khan, Advocate, has appeared on behalf of respondents Nos. 1, 2, 3, and

5. None has appeared on behalf of the others in spite of their service hence are proceeded against ex parte. Learned counsel has argued that as per provision of Order 41, Rule 4 read with Rule 33, it was not necessary to implead Muhammad Sarwar a co‑plaintiff as a party to the appeal who himself had not joined the petitioners, particularly, when it was a case of decree of dismissal of the suit and his name was not shown in the decree‑sheet as a party to the suit. Therefore his non‑joinder was not fatal to the appeal. In support of his arguments, learned counsel has placed reliance from case of Mst. Murad Begum v. Muhammad Rafiq (PLD 1974 SC 322) and Mst. Maqbool Begum v. Gullan and others (PLD 1982 SC 46). Learned counsel has further contended that application filed by the petitioners seeking permission to implead the omitted party as a respondent in the appeal has illegally been dismissed inasmuch as the omission was not intentional but was due to the fact that name of the omitted party was not reflected in the copies of the judgment and decree supplied to the petitioners, therefore, the appeal could not have been dismissed due to non‑joinder of such a party. Learned counsel has taken support for the above view from the cases referred to supra. On the other hand, learned counsel for the respondents has argued that Muhammad Sarwar alias Ghulam Sarwar being a co‑plaintiff in the original suit, was a necessary party and therefore without his impleadment the appeal was not properly constituted hence had rightly been dismissed. In support of his arguments learned counsel has placed reliance on cases of VPRV Chockalingam Chetty v. Seethai Ache and others (AIR 1927 Privy Council 252), Gwyer CJ. Suleman and Varadachariar, JJ. United Provinces v. Mt. Atiqa Begum, (AIR 1941 FC 16) and Labhu Ram and others v. Ram Partap and others (AIR 1944 Lahore 76).

3. I have considered the arguments addressed by the learned counsel for the parties and have also gone through the record. Muhammad Sarwar alias Ghulam Sarwar was a co‑plaintiff in the suit which was dismissed by the learned trial Court. As per provision of Order 41, R.4 of the C.P.C. even one plaintiff can successfully challenge a decree passed in a joint suit. The petitioners could not force the other plaintiffs to join with them to file an appeal under the provision of Order 41, Rule 33, C.P.C., the learned appellate Court is competent to pass any decree in appeal even if a party to a suit has not challenged the decree and is not even a party before the Court, consequently, Muhammad Sarwar alias Ghulam Sarwar was not in fad a necessary party for the purposes of challenging the decree in question by the petitioners and hence it cannot be said that the appeal was not properly constituted.

4. Omission of his name of Muhammad Sarwar a co‑plaintiff as a party ,a to the appeal can also not be said to be intentional. His name was not reflected in the copy of parcha‑decree and copy of judgment supplied to the petitioners for filing of an appeal. Under Order 41, Rule 20, C.P.C., learned lower appellate Court had the jurisdiction to implead a necessary party during the course of appeal even after expiry of period of limitation to file an appeal ac held in cases of Said Muhammad v. M. Sardar and others (PLD 1989 SC 532), Punjab Road Transport Board v. Abdul Ghafoor (PLD 1989 SC 541), Ghulam Hussain v. Faiz Muhammad (PLD 1991 SC 218) and Mst. Sardar Begum v. Muhammad Anwar Shah (1993 SCMR 363). Law declared in cases referred to by the learned counsel for the respondent does not hold good in view of the law declared by the Hon'ble Supreme Court in the abovementioned judgments. Consequently, refusing application filed by the petitioners to implead Muhammad Sarwar alias Ghulam Sarwar as party to the appeal has resulted in miscarriage of justice and it can safely be said that the impugned judgment rendered in appeal is illegal and is without a lawful authority. Learned first appellate Court has failed to follow the law declared by the Hon'ble Supreme Court in this behalf and hence has exercised jurisdiction illegally and with a 8 material irregularity. In view of the above, I accept this civil revision, set aside the impugned judgment and decree rendered by the learned first appellate Court and remand the appeal for decision thereof afresh by the lower appellate Court. The petitioners shall be allowed to file a fresh memorendum of appeal impleading Muhammad Sarwar alias Ghulam Sarwar as a party to the appeal which shall be decided afresh on merits in accordance with law. Parties are left to bear their own costs. AA./N‑171/L Appeal accepted.