1993 PLP 1013 (CLC)

T. H. Rizvi for Appellant. Hafz Tariq Nasim and Zahid Hassan Khan for Respondent. Dates of hearing: 30th and 31st January, 1993. This judgment will govern F.A.Os. Nos. 107 and 108 of 1972 as they are between the same parties and involve the examination of same questions of law and facts.

2. The facts, briefly stated, giving rise to these. appeals are; that Syed Bashir Hussain Shah, and Syed Mazhar Hussain Shah were granted lots Nos.25 and 28 situated in revenue estate/RH Rakh Hetu Tehsil Bhakkar. These lots are fully described in the head note of the plaints and hereinafter shall be referred to as lots Nos.25 and

28. Pursuant to the orders of grants, each appellant deposited Rs.1,300 as earnest money for the grant. On 10‑4‑1954 the appellants were informed through a communication sent by Thal Authorities to the effect that Tubewell Sinking Scheme had been abandoned by the Government of West Pakistan and, therefore, the orders of grant made in their favour stood at naught. The appellants were further asked to take back the earnest money which they had deposited. In compliance with this communication, the appellants withdrew the earnest money. Thereafter the appellants came to know that the communication addressed to them by Thal Authorities was a fake one; that Tubewell Sinking Scheme had not been abandoned by the Government (then erstwhile West Pakistan). On these facts, the appellants brought two separate suits in the Court of Civil Judge, Mianwali under section ‑t2 of the Specific Relief Act (I of 1877) against Administrator, Thal Development Authority, alleging therein that the communication of respondent dated 10‑4‑1954 was based upon a fraudulent representation and, therefore, was of no legal consequence; that the appellants continued to be the grantees of lots Nos.25 and 28 under Tubewell Sinking Scheme and were entitled to their possession. It was prayed therein that the suits be decreed with requested reliefs. The ‑ suits filed by the appellants were contested by Administrator, Thal Development Authority who, in written statements contended that lots after resumption from the appellants were allotted to different persons who were affectees of Chashma Barrage Project; that these allottees had obtained possession from the Thal Development Authority; that these allottees were, therefore, necessary parties and suits could not proceed in their absence; that the Civil Court had no jurisdiction to decide the suit as the question pertaining to grants of lots Nos.25 and 28 and their cancellation was exclusively within the domain of Thal Development Authority. On these pleadings, as many as nine issues were settled between the parties which are not necessary to be recapitulated as they are not relevant for the purpose of deciding these appeals. Upon the survey of the evidence so adduced by the parties, the learned original Court held that the communication of Thal Development Authority dated 10‑4‑1954 was based upon non‑existent premises and, therefore, was of no lawful consequence. On this conclusion, the suits filed by the appellants were decreed with requested reliefs subject to the condition that each appellant would pay an amount of Rs.1,350 as earnest money. This happened vide decisions dated 2‑9‑1971.

3. Feeling aggrieved with this decision, the respondent preferred two first appeals which came up for hearing before the learned District Judge, Mianwali. During pendency of these appeals, Mst. Maryan, Farid and Fateh Sher lodged an application under Order I, Rule 10 read with section 151 of the Code of Civil Procedure for being impleaded as respondents/defendants in Civil Appeal No.t7 of 19,'1 It was emphasised therein that lot No.25 was allotted to them under Scheme for Rehabilitation of E%icttcs of Chashma Scheme; that under the order of allotment the applicants were in possession of lot No.25, and therefore, had acquired legal vested right in this lot and were, therefore, necessary parties. Similarly Amir Khan, Ata Muhammad Khan and Sardar Khan submitted application under the same provisions of law for being impleaded as a party in Civil Appeal No.15 of 1972 on the premises that lots m dispute in this appeal had been allotted to the applicants by the competent authorities under the Scheme for Rehabilitation of Evictees of Chashma Scheme. It was contended therein that the applicants had acquired vested legal rights in the lots in dispute and, therefore, were necessary parties. These applications were vigorously opposed by the appellants. Vide decision dated 5‑5‑1972, the learned first appellate Court found that the applicants were necessary parties and, therefore, allowed their applications. In view of this finding, the learned appellate Court accepted the appeals, remanded the cases to the learned Administrative Civil Judge, Mianwali for de novo trial after affording opportunity of hearing to newly impleaded defendants/respondents under the law. These orders of remand of the learned first appellate Court in First Appeals Nos.15 and 17 of 1972 are the subject‑matter of challenge in the. appeals in hand.

4. Learned counsel for the appeal ants impeached the impugned orders of allotment on two‑fold grounds:‑‑ Firstly, that newly impleaded respondents were not parties to the original '' suits. therefore, the Court had no jurisdiction under Order XLI, Rule 20 of the Code of Civil Procedure to implead them as respondents. Strength was sought from Sohan Singh v. Santa Singh (AIR 1923 Lahore 491). Secondly, the lots Nos. 25 and 28 were allotted to newly‑impleaded respondents during the pendency of suits lodged by the appellants. On the basis of this circumstance, it was suggested that the grants of the lots Nos. 25 and 28 to newly‑impleaded respondents were hit by the principle of lis pendens embodied in section 52 of the Transfer of Property Act (IV of 1882). Reliance was placed on Pir Abdullah Shah v. Hamayun (PLD 1957 Lahore 1054) and Malik Muhammad Iqbal v. Ghulam Muhammad and another (1990 CLC 670).

5. On the contrary, learned counsel for the respondent vigorously defended the impugned orders by saying that under section 107 of the Code of Civil Procedure, the appellate Court possessed the same powers which were exercisable by the trial Court. On these premises, it was argued that the appellate Court had a power under section 151 of the Code of Civil Procedure (hereinafter called as the Code) to implead the newly‑impleaded respondents who prima facie were necessary parties. Reliance was placed on Muhammad Nisab Khan v. Azad Government of A.J.K. (1987 CLC 1329). Continuing, the learned counsel for the respondent submitted that the principle of lis pendens was not attracted to the facts of the appeals in hand.

6. From the above narration the first and foremost question arising for consideration is "whether the first appellate Court had powers under the provisions of the Code to implead the newly impleaded respondents who were admittedly not party to the suit". This question had never been free from difficulty. In pre‑Partition era, there was divergence of judicial opinions on this point. Pachkauri v. Ram Khelawan (AIR 1914 Allahabad 293), Firm Shiam Lal v. Dhanpat Rai (AIR 1925 Allahabad 768), Monjiram v. Maneklal (AIR 1929 All. 353) are the authorities in support of rule that the appellate Court in presence of provisions of Rule 20 of Order XLI of the Code, has no power to implead a person as a party in appeal who was not party to the suit before the primary Court. In Zamindar Garu v. Govindarajulu Venkata Subbarayadu (4 Indian Cases 1132), the Division Bench of Madras High Court took different view that the appellate Court had inherent power under section 151 of the Code to implead a person party to the appeal who was not arrayed as a defendant in the suit before the original Court. The same view was taken by Division Bench of Patna High Court in Sirimati Hemanigini Debi v. Haridas Banerjee (40 Indian Cases 398). In United Province v. Atiqa Begum (AIR 1941 F.C. 16), after examining Order XLI, Rule 20, Order I, Rule 10 and section 151 of the Code Sulaiman, J. in a separate opinion expressed that language of Rule 20 of Order XLI of the Code "does not show that it is exclusive or exhaustive as to deprive appellate Court of inherent power which it may possess and can exercise in special circumstances, and it has been saved by section 151 of the Code". These observations were made while considering Order I, Rule 10 (2) of the Code which empowers the Court of original jurisdiction to order the name of any person who might have joined or whose presence before the Court was necessary in order to enable the Court to effectually and completely decide and settle all the questions raised to suit". In this case the U.P. Government was impleaded as a party in the appeal which was not party in the original suit. The view taken in United Provinces' case (AIR 1941 FC 16), supra was followed by Division Bench of Lahore High Court in Shanti Lal and others v. Firm Hira Lai Sheo Narain through Shiv Karan Das and others (AIR 1941 Lahore 402). , ,

7. The aforesaid question came up for consideration before the Supreme Court in somewhat different circumstances, in Said Muhammad and others v. M. Sardar and others (PLD 1989 SC 532). In this case M. Sardar and others had instituted a suit in the Court of Civil Judge Okara to seek a declaration that they and Abdul Ghafoor one of the defendants were owners in possession of the suit land under an exchange. During the pendency of the suit, the Court referred the dispute to arbitration of two real brothers Mian Abdul Haq and Mian Bashir Ahmad and appointed Mian Abdul Wahab as an umpire in case of difference of opinion. The arbitrators and umpire gave an unanimous award in the terms that respondents will remain exclusive owners of the land in Daya Ram Dauluwal village jointly with Abdul Ghafoor and to compensate the appellants they would give nine acres of land to the appellant in the area in village Dauluwal. The appellants filed objections to the award which were rejected and award was made the rule of Court by decision dated 6‑3‑1968. The appellant filed an appeal against the aWve decision, but without impleading Abdul Ghafoor as a party in the appeal. On 20‑2‑1969 an application was filed under Order XLI, Rule 20 of the Code for impleadment of Abdul Ghafoor on the ground that name of Abdul Ghafoor was left by inadvertent error of typist. An application for condonation of delay under Section 5 of the Limitation Act was also lodged. The first appellate Court however refused to implead Abdul Ghafoor as one of the respondents holding that appeal was improperly constituted; that the application has been filed after the period of limitation has expired against the said Abdul Ghafoor. 1n the second appeal the High Court upheld the view taken by the first appellate Court. In this factual background Saeed Ahmad a d others filed appeal which was accepted by the Supreme Court vide decision dated‑ .18‑12‑1988. 1n this case the question for consideration was "whether the appellate Court in terms of Order XLI, Rule 20 of the Code was competent to implead a necessary party against whom the impugned decree has become final on account of the expiry of limitation. The rule laid down in precedents referred to in preceding paragraph was approved. It was held that the provisions of Order XLI, Rule 20 of the Code were neither exhaustive nor exclusive. The appellate Court by virtue of powers under section 107 of the Code was possessed of the same powers which were conferred upon the trial Court and was fully competent to implead a party in appeal against whom the time prescribed under Limitation Act has expired. It was further held that statement of law in Labhuram's case was no longer correct view.

8. From the above discussion, the ratio deducible is: (i) That Order XLI, Rule 20 of the Code is neither ,comprehensive nor exclusive. This does not denude appellate Court from its inherent powers under section 151 of the Code to implead a party who is not a party to the original suit if it is shown that he is a necessary party and no decision can be rendered without such party. (ii) That the provisions of Rule 20 of Order XLI, Rule 10 of Order I and section 151 of the Code are the. part of procedural law and so are to be liberally construed in order to advance the calls of doing substantial justice instead of killing the causes on mere fetish of technicalities. (iii) That the appellate Court, apart from Order XLI, Rule 20 of the Code has powers under section 151 of the Code to implead any party as respondent who has been left out by the appellant due to inadvertent error, even after the expiry of period of limitation prescribed for filing appeal subject to the consequence of Limitation Act.

9. Applying these tests to the circumstances of this case, it is crystal clear that the newly‑impleaded respondents were allotted lots Nos.25 and 28 by the competent Authorities; that they had been in possession of the lots in dispute; that these respondents had acquired valuable legal rights in these lots and, therefore, were correctly held by the first appellate Court to be necessary parties in suits filed by the appellants. The conclusion arrived at by the first appellate Court is eminently correct, just and congruent with law. 1 have, therefore,, no hesitation to hold that the decisions of the learned first appellate Court are not exceptionable.

10. There is another remarkable feature of the case. Vide impugned decisions dated 5‑5‑1972 Mst. Maryan, Farid and Fateh Sher in Civil Appeal No. 17 of 1972 and Amir Khan, Ata Muhammad Khan and Sardar Khan in Civil Appeal No. 15 of 1972, were impleaded as parties. In spite of this order, the appeals were filed without impleading them. It is a settled principle, of law that a lis brought before the Court without impleading necessary party is improperly constituted and can be straightaway dismissed on this ground alone. it may be noted at this stage Hafiz Tariq Nasim, Advocate, appeared on behalf of newly‑impleaded respondents and raised .preliminary objection regarding the maintainability of the appeal on the ground that these appeals had been preferred without the newly‑impleaded respondents, therefore, were incompetent. There is force in this contention.

11. As regards the question of lis pendens, this plea cannot be taken into consideration in these appeals. This being plea of facts, shall be available before the original Court. The contention is found to be devoid of force and is, accordingly, repelled.

12. For the reasons stated above these appeals are found to be wholly untenable and are, accordingly, hereby dismissed. The appellants shah bear the costs of proceedings throughout. Since these appeals had been pending adjudication before this Court for a petty long time, I therefore, find it proper to direct the original Court to decide the suits filed by the appellants after affording opportunity of hearing to the parties in accordance with law within a period of one year commencing from the receipt of the order of this Court. AA./B‑70/L Appeals dismissed.