1987 PLP 95 (SCMR)

‑‑‑Art. 185(3)‑‑Civil Procedure Code (V of 1908),

0. I, R. 10‑‑Specific Relief Act (I of 1877), S.54‑‑Transfer of Property Act (IV of 1882), S.54‑‑Suit in name of wrong person‑‑Transfer of immovable property‑ Leave to appeal granted to consider whether High Court had not refused to exercise jurisdiction so vested in it in not dismissing respondent's appeal, as not legally and properly constituted after deletion of petitioner's name, a necessary party, from amongst respondents/ defendants; whether provisions of Order I, R.10, C.P.C. S. 54 of Act (I of 1877) read with S.54 of Act (IV of 1882) were misconstrued resulting in failure of exercise of jurisdiction. A.R. Sheikh, Senior Advocate Supreme Court and Faiz Muhammad Bhatti, Advocate‑on‑Record for Petitioner. M. Jalal, Advocate Supreme Court and Ch. Akhtar Ali, Advocate -on‑Record for Respondent No.1. Date of hearing: 3rd November, 1986. MIAN BURHANUDIN KHAN, J.‑‑Petitioner seeks leave to appeal against the judgment and order of the Lahore High Court, Rawalpindi Bench, dated 11‑12‑1984 passed in R.S.A. No. 305 of 1967 on the grounds whether the learned Judge, in Chamber, has not refused to exercise jurisdiction so vested in him in not dismissing the respondent's appeal as not legally and properly constituted after the deletion of the petitioner's name, a necessary party, from amongst the array of respondents /defendants; whether the provisions of Order I, Rule 10, C.P.A., section 54 of the Specific Relief Act read with section 54 of the Transfer of Property Act, have not been misconstrued and such misconstruction has resulted in failure of exercise of jurisdiction. 2.The Murree Improvement Trust, the third respondent acquired area in Murree Mills in pursuance of the provisions of section 7 of the Punjab Development of Damaged Areas Act, 1952. Appellants were invited by public notice. One plot out of the area, bearing No.23, measuring 0.80 Acre, was allotted to Mian Saeed Ahmad, Superintending Engineer, P.W.D., Lahore. Mian Saeed Ahmad made a request that the area allotted to him may be split into two parts as it was too unwieldy. This request was acceded to and the plot was bifurcated and it was re‑numbered as 23‑A and 23‑B. The respondents got Plot No.23‑B but failed to comply with the terms of allotment with the result that after repeated reminders and notices the Trust resumed the plot which was put to public auction and was given to the petitioner being the highest bidder. The respondents instituted a civil suit against the Trust and Mr. Hanif Moonnoo in the Court of the Administrative Civil Judge Hanif Moonnoo appeared and pleaded that he was neither the proper nor necessary party and that the auction‑purchaser, the petitioner, be impleaded. No effort was made by the respondents to implead the petitioner and the matter proceeded ex parte against Mr. Hanif Moonnoo. Consequently a decree was passed in favour of the respondents' appeal filed by the Trust was allowed by the learned Additional District Judge Rawalpindi and the suit was dismissed vide order, dated 7‑1‑1967. This judgment and decree was challenged in the High Court in R.S.A. 305 of 1967 and the petitioner was impleaded as a respondent but her address given was wrong, and, therefore, ex-parte order. Petitioner's attempt to revive the appeal failed and she came to this Court by way of C.P.L. 501/R of 1983 which was converted into an appeal on 1‑1‑1983; order of the High Court was set aside and the case was remanded for decision afresh. After remand when the case came up for re‑hearing before the High Court on the objection of the respondent name of the petitioner was again struck off from the appeal as respondent. The petitioner has come again to this Court seeking leave to appeal on various questions of law.

3. We have examined the contentions raised by the learned counsel and would grant leave to examine the same Security rupees two thousand and five hundred. To be heard on the present record with liberty to the parties to file additional documents, if desired. In the meantime no change to be made in the character of the property. M.I. Leave granted.