P L D 1969 Supreme Court 65 (PLP)

ABDUS SATTAR, J.‑

This appeal by special leave arises out of a suit instituted by the appellants against respondents No. 1 for a declaration and perpetual injunction. Respondents No. 1 are manufacturers of vegetable oil products. The appellants were appointed as sole distributors for Karachi and the area comprising former Sind for distribu tion of the said vegetable and oil products by an agreement dated the 18th of October, 1959 and entered into with the predecessor of respondents No. 1, namely, Hyderabad Sind Vegetable Oil and Allied Industries, Limited. In July 1950, the name of Hyderabad Sind Vegetable Oil and Allied Industries, Limited, was changed to Wazir Ali Industries, Limited. On the 19th August 1961, the appellants furnished a bank guarantee for Rs. 3,00,000 by authorising their bankers, Habib Bank Limited, to pass a guarantee in favour of National and Grindlays Bark Limited, the bankers of Wazir Ali Industries Limited. This guarantee expired on 15‑8‑1962. Later on, it was renewed from year to year, the last renewal date being the 24th August, 1964, under which the guarantee was to remain in force up to the 19th August 1965. Wazir Ali Industries, Limited, by their Letter dated the 10th September, 1964, gave notice to the appellants to terminate their agency on and from the 10th October, 1964. Saya & Co., filed a suit on the 8th of October, 1964 against the respondents No. 1 for a declaration that the agreement of agency was subsisting and for an injunction to restrain them from stopping the supplies of goods as well as for the specific performance of the agency agreement. An application for ad interim injunction was made and an order of injunction obtained. Wazir Ali Industries Limited preferred an appeal against the above order of ad interim injunction. The appeal was allowed and the order granting ad interim injunction was set aside. Saya & Co., filed a revision application against the order of the appellate Court which was dismissed by the judgment under appeal before us. We are not, however, concerned with this litigation any further. Suffice it, however, to say that the suit filed by Saya & Co., has ultimately been withdrawn. While Saya & Co., were making all efforts to compel Wazir Ali Industries to continue supplies of their products for distribution, the latter were demanding the payment of the price of the goods which had already been supplied. National and Grindlays Bank Limited, on their behalf, pressed Habib Bank Limited to make payment in terms of the guarantee. Saya & Co., then filed Suit No. 369 of 1964 in the Court of Civil Judge, Karachi, against Habib Bank Limited, only for a declaration that the extension of the guarantee upto the 19th August, 1965, was void and of no effect and for an injunction restraining the said bank from making payments to National and Grindlays Bank Limited on the basis of the guarantee. An application for ad interim injunction was moved and an order of injuction obtained on the 30th of October, 1964. On the 10th of November 1964, Wazir Ali Industries, Ltd., made an application to the trial Court to be imp-leaded as a necessary party to the suit. On the 11th of November, 1964, they filed an appeal against the order of injuction in the Court of the District Judge, Karachi. The learned Additional District Judge, who heard the matter, permitted Wazir Ali Industrie3, Limited, to file the appeal as they were aggrieved by the order. The appeal was admitted and the operation of the order of ad interim injunction was stayed. Saya & Co., filed a revision application against the orders of the learned Additional District Judge and the main conten tion raised was, that the appeal preferred by Wazir Ali Industries Limited, against the order of ad interim injunction passed in suit No. 369 of 1954 was not maintainable as they were not parties to the suit in which the said order was passed. This contention did not find favour with the learned Single Judge of the High Court and hence this appeal. Leave to appeal was granted to consider whether the High Court was right in holding that a stranger to a suit or proceeding can file an appeal if he is adversely affected by an order in that suit or proceeding. The learned counsel for the appellants has contended that as there is no provision in ‑the Code of Civil Procedure permitting a stranger to a suit or proceeding to file an appeal against an order passed therein, the appeal filed by the respondents No. 1 against the order of ad interim injunc tion was incompetent. The proper course, according to the learned counsel, for Wazir Ali Industries Limited, was to make an application under Order 1, rule 10 of the Code of Civil Procedure and to get themselves added as parties in the suit before they could file the appeal. There can be no dispute that the only party which was adversely affected by the order of ad interim injunction w is respondents No.

1. We are satisfied that Saya & Co., deliberately omitted to make them parties with the intention of avoiding a contest. They knew fully well that the reliefs sought were really directed against Wazir Ali Industries, Limited, and their bankers. A stranger to a suit or a proceed ing is not prohibited by the Code of Civil Procedure from filing an appeal from an order passed therein. It is true that there is no express provision permitting such party to prefer an appeal against such an order. This omission, how ever, cannot be understood to amount to prohibition. The Court ought not to act on the principle that every procedure is to be taken as prohibited unless it is expressly provided for. To give such a meaning to the omission would result in grave injustice. The facts of this case are clear example in point. The Court should proceed on the principle that every procedure which furthers administration of justice is permissible even if there is no express provision permitting the same. Section 96 of the Civil Procedure Code deals with appeals from decrees and section 104 deals with appeals from orders. These provisions do not in terms say who is entitled to prefer an appeal. The Code, however, lays down that it is the decree or the order that has to be appealed against. If the decree or order appealed from adversely affects a person he should be permitted to challenge the same in appeal even if he was not made a party to the original suit or proceeding. The learned counsel for the appellants has, in support of his contention, relied upon three decisions. In the case of J. Rustamji of Lahore v. Official Liquidator of the People's and Amritsar Bank, Ltd. and another (A I R 1919 Lah. 180), an appeal filed under section 169 of the Companies Act by a creditor against an order sanctioning a compromise was found to be incompetent as the appellant had not qualified himself under rule 58 of the Rules framed under the Act to attend the proceedings and was not a party to the proceed ings before the trial Judge. In the case of Indian Bank Limited, Madras v. Saith Bansiram Jashamal (Firm) and another (A I R 1934 Mad. 360) an appeal preferred by a creditor of an insolvent against the decree in a suit in which the Official Receiver was imp-leaded as a party was found to be incompetent as the appellant was not a party to the suit. This decision, however, was not fully approved in the case of Sm. K. Pannalagu Ammal v. The State of Madras and others (A I R 1953 Mad. 485) wherein the right of the appellate Court to grant permission to a person who is not a party to the suit but is affected by the judgment, decree or order of the trial Court to prefer an appeal against the same was recognized. Lastly the learned counsel for the appellants referred to the case of Al‑Kisan Transport Co. Ltd., v. Regional Transport, Authority, Lahore (P L D 1961 Lah. 723). In this case it was observed:‑ "The only reasonable interpretation that can be placed on the language employed in the relevant provisions of the Code of Civil Procedure is that an appeal can be instituted by a party to the proceedings in which the order sought to be appealed against was passed and this conclusion is inevitable even if I proceed on the assumption that the Code of Civil Procedure did not in terms say that an appealed could be presented by a party to the proceedings in which the order appealed against was passed. It in inconceivable that the intention of the authors of the Code of Civil Procedure, parts of which devote meticulous attention to the question what persons could or should be parties to pro ceedings in Courts, was that an appeal could be lodged by person who was not a party to the proceedings in which the order intended to be appealed against was passed. If this were so, numerous rules occurring in the Code of Civil Procedure with regard to imp-leading persons as parties to the proceedings governed by that Code would be entirely redundant and in the absence of very cogent proof to that effect I am not prepared to hold that the Legislature which was responsible for passing the Code of Civil Procedure had indulged in redundancy on a very prolix scale." We may point out, with due respect, that it has not been possible for us to accept the above observations. The English Courts have consistently followed the practice that a person who is not a party to a suit or a proceeding may prefer an appeal if he is affected by the judgment, decree or order of the trial Court provided he obtains leave from the Court of appeal. The test applied in granting leave to appeal, in such cases, is that if the person who) wants to prefer the appeal might properly have been a party in the suit or proceeding then he may obtain leave to appeal. The case of In re : B. An Infant ((1958) 1 Q B 12, 17) on which Mr. Dingoomal has relied lends support to the above proposition. In our view this is an equitable rule which should be followed in the absence of any provision to the contrary in the Code of Civil Procedure. In the present case the learned counsel for the appellants had to concede that the order of ad interim injunction passed in the suit really affected Wazir Ali Industries Limited. They filed the appeal against the order with 'the leave of the appellate Court. In these circumstances the learned Single Judge of the High Court rightly held that the appeal preferred by them was competent. The present appeal has no merits. It is, therefore, dismissed with costs. K. B. A. Appeal dismissed.