P L D 1974 Supreme Court 322 (PLP)

Aggrieved by this judgment of the Division Bench of the High Court, the plaintiff filed an appeal before the Judicial Committee of the former Bahawalpur State. On the merger of the States and Provinces of West Pakistan into One Unit with effect from the 14th of October 1955 this appeal stood transferred to the Federal Court of Pakistan. It was ultimately heard and allowed by the Supreme Court of Pakistan on the 28th of April 1964, on the ground that the learned Single Judge who had accepted the defendants' first appeal on the 4th of April 1948 had ceased to hold office, at the time he signed the judgment, owing to his appointment as Minister in the Government of the Bahawalpur State. It was held that the judgment delivered by him was a nullity, as he had become, functus officio at the relevant time. The Supreme Court, therefore, set aside the judgments of the former Bahawalpur High Court and held that the first appeal would be deemed to be still pending in the High Court, as it had not been disposed of in accordance with law. As a result of the judgment of this Court dated the 28th of April 1964, the defendants' appeal instituted on 14‑2‑1944 was heard afresh by a Division Bench of the High Court and dismissed on 23‑12‑1966, for the reason that the legal representatives of certain defendants, who were necessary parties, had not been brought on the record by the appellants, with the result that the appeal against them had abated, and that it could not proceed in respect of the other defendants, as the interests of all the defendants in the suit were joint and indivisible, and inconsistent decrees in respect of the same subject‑matter were likely to come into existence if the appeal were to be allowed in part. The defendants' contention that it was not necessary to implead the legal representatives of defendants Buland, Dhunno Mal and Muhammad Musa as they had died before the decree was passed by the trial Court, was rejected by the High Court on the ground that these defendants had died after the hearing of the suit but before the decree was passed, and accordingly the decree was not a nullity against them under rule 6 of Order XXII of the Code of Civil Procedure. The High Court held that it was, therefore, the duty of the appellants to have impleaded the heirs of these three persons as respondents to the appeal. A preliminary objection was raised by Mr. Inayat Ali, learned counsel for the contesting plaintiff‑respondents, to the effect that the present appeal was not properly constituted, as Mst. Razia Begum, daughter of the late plaintiff Qazi Mehr Din, had not been impleaded as a respondent although she was alive, and in her stead her legal representatives had been impleaded. He submitted that in precisely the same situation the plaintiff's Constitutional appeal was dismissed by a Division Bench of the High Court of the former Bahawalpur State on 27‑2‑1950 for the reason that defendant Fateh Mohammad was not impleaded, although alive, and instead his legal representatives had been brought on the record. Learned counsel contended that in the absence of Mst. Razia Begum on the record the present appeal could not proceed as the decree was joint and indivisible in favour of all the legal representatives of the plaintiff, Qazi Mehr Din. He further submitted that now it was too late to substitute Mst. Razia Begum for her legal representatives. In reply, Sh. Ghias Mohammad, learned counsel for the appellants, submitted that it is correct that Mst. Razia Begum was alive and she should have been impleaded as a respondent in her own right and not through her legal representatives, but unfortunately the appellants were misled by the fact that in the decree‑sheet prepared in the High Court on the dismissal of the appellants R. F. A. No. 14 of 1944, Mst. Razia Begum had been shown as a respondent through her legal representatives, and this description was repeated by the appellants in this Court. The learned counsel submitted that, in these circumstances, the Court may condone delay under rule 9 of Order XVI of the Pakistan Supreme Court Rules; 1956. The learned counsel also contended that in any case the estate of the deceased plaintiff, Qazi Mehr Din, was sufficiently represented on the record by his other legal representatives, and, therefore, the absence of Mst. Razia Begum, one of the daughters of the plaintiff, would not render the appeal incompetent. We have perused the certified copy of the decree‑sheet prepared by the High Court in the Regular First Appeal and we find that it is indeed correct that in this sheet Mst. Razia Begum, daughter of Qazi Mehr Din has been described as "through legal representatives respondents No. 1 and 4". It is, therefore, clear that the appellants were misled into adopting the same description while presenting their petition for special leave to appeal. In the circumstances, sufficient cause does exist for condoning delay and A allowing the name of Mst. Razia Begum to be substituted for her legal representatives. We consider that the appeal cannot be allowed to be defeated owing to a technical defect arising out of a mis description appearing in the decree under appeal. We would order accordingly and proceed with the appeal on merits. On this view of the matter, it is not necessary to examine Sh. Ghias Mohammad's contention that even without Mst. Razia Begum, the estate of the deceased plaintiff should be deemed to be adequately represented on the record. In support of this appeal, it is contended by Sh. Ghias Mohammad that :‑ (a) the learned Judges in the High Court have erred in thinking that the defendants who did not appeal and were not impleaded as respondents in the first appeal were necessary parties, as in fact the vendee was only one person, namely, Sh. Mehr Din, and the remaining fifteen defendants were tenants under him, and did not have any independent right in the property in dispute ; (b) the decree being in favour of the plaintiff, Qazi Mehr Din, the main relief in the R. F. A. was being sought against him or his legal representatives, and, therefore, the failure of the appealing defendants to implead some of the defendants who had not joined them in the appeal, did not in any manner affect the competence of the appeal ; (c) three of the defendants, namely, Buland, Dhannu Mal and Mohammad Musa having died during the pendency of the suit and before the passing of the decree by the trial Court, there was no valid and binding decree against them, and accordingly failure to implead them as respondents could not have any effect on the maintainability of the R. F. A. preferred by the other defendants ; (d) the plaintiff himself had given up as unnecessary defendants Moti, Ali Mohammad, Abdur Rehman as well as the legal representatives of defendant Abdullah in the appeal previously heard by the Supreme Court at his instance. namely, Civil Appeal No. 6 of 1961, as a result of which the Regular First Appeal was remanded to the High Court for a fresh hearing, and accordingly the plaintiff or his legal representatives cannot now be permitted to question the competence of the Regular First Appeal on the ground that these four defendants were not impleaded by the present appellants ; and (e) the absence of seven defendants being thus satisfactorily explained, the only objection which the High Court ought to have considered was with regard to defendants Palya and Abdul Waheed, and these two defendants were not at all necessary parties as they were mere cultivators under the vendee Sh. Mehr Din; and further that the name of Palya had in fact been left out even in the Constitutional appeal filed by the plaintiff before the Division Bench of the High Court of the Bahawalpur State. It will be seen that the main question calling for determination in this case is regarding the nature of the decree obtained by the plaintiff Qazi Mehr Din against the principal defendant Sh. Mehr Din and his fifteen co‑defendants. In order to view the matter in its correct perspective, let us first examine the claim made in the plaint and the plea on which it was resisted by the contesting defendants. It may be stated here that the learned counsel for the appellants does not appear to be correct in thinking that the joint written statement was filed in the suit by seven defendants. From the record it transpires that the joint written statement was filed only by three defendants, namely, Sh. Mehr Din, Karam Ilahi and Muhammad Din, and that ex parte proceedings were taken by the learned trial Judge against defendants Nos. 5 to

16. We have already referred to the averments made in paragraph 4 of the amended plaint dated the 2nd of May 1938 to the effect that defendants Nos. 2 to 16, in collusion with defendant No. 1, were keeping the land in their illegal possession. The reply given to this paragraph in the joint written statement, whether filed by three or seven defendants, has also been mentioned, namely, that after the rights of Sh. Mehr Din had become absolute by presenting the money in accordance with the agreement, he had orally sold the suit land to the other defendants. It was asserted in this paragraph that their possession at the spot was, therefore, on account of the oral sale in their favour as effected by Sh. Mehr Din. Sh. Ghias Muhammad argued that these remarks bad reference only to the seven contesting defendants who had filed the joint written statement. However, this submission is not supported by the generality of the remarks embodied in paragraph 4 of the written statement, which remarks appear to embrace all the defendants cited by the plaintiff. At this stage of the suit; there was no allegation by any of the defendants that they were mere cultivators under Sh. Mehr Din. On the 20th of October 1938, Sh. Mehr Din made a detailed statement on oath before the trial Court, asserting that the plaintiff Qazi Mehr Din had asked him to sell the land in dispute on commission basis, that he had settled the bargain with defendants Muhammad Din and others at the rate of Rs. 27 per bigha, out of which he was to retain Rs. 2 per bigha as commission, and that in pursuance of this arrangement Muhammad Din and others had been in possession of the land for more then twelve years. He ended the statement by saying that "I sold the land to Muhammad Din. His brothers etc: might be his sub‑purchasers. Muhammad Din is responsible to me and he is a purchaser." It will be noticed that even in this statement the principal defendant Sh. Mehr Din did not describe the other fifteen defen dants as mere cultivators of the land; on the contrary, he made it appear that they, along with Muhammad Din, were the real purchasers, and that he himself was merely acting as a broker. It is also interesting to observe that in paragraph 3 of the concise statement filed by the appellants in this Court, the position was stated thus:‑ "After the said agreement Sh. Mehr Din entered into a deed with Muhammad Din (the predecessor‑in‑interest of appellants Nos. 4 to 6), who in turn associated with him in the said deal with fourteen other persons." It is clear that the effect of this paragraph, which forms part of the main narration of facts in the concise statement, cannot be allowed to be whittled down by the grounds mentioned under the heading "Reasons", of the concise statement, in which the stand taken is contrary to the main recital. The position which, therefore, clearly emerges from the pleadings of the parties is that the defendants were asserting that all the sixteen of them were in possession of the land as vendees thereof. It is well settled that a party cannot be permitted to raise an altogether new ground of attack or defence, by departing from its previous pleadings, especially when the opposite‑party had no opportunity to adduce evidence in this behalf or to otherwise have an opportunity of meeting the plea during, the course of the trial. Reference in this behalf may be made to Siddik Mahamed Shah v. Mst. Saran (A I R 1930 P C 57(1)), Hem Chand v. Pearay Lal (AIR 1942 P C 64), Kanda v. Waghu (AIR 1950 P C 68), Messrs Choudhry Brothers v. Jaranwala Central Co‑operative Bank Ltd. (1968 S C M R 804), Mst. Sherina v. Haji Ghawar Khan (1972 S C M R 646) and Abdul Karim v. Mirza Bashir Ahmad (P L D 1974 S C 61). It is therefore, clear that the present appeal must be on the basis that all the sixteen defendants to the suit were in joint and undivided possession of the land in dispute, and that a joint and indivisible decree was passed against them by the trial Court, not only for possession, but also for recovery of the earnest money and mesne profits and interest thereon. In so far as this decree was concerned, there were no pro forma defendants, as all of them, on their own showing, were in possession as vendees under an oral sale from Sh. Mehr Din, who in turn had entered into an agreement with the plaintiff Qazi Mehr Din. Once it is found that the decree appealed from by some of the defendants was joint and indivisible against all the defendants, then it follows that their failure to implead the remaining defendants, or any of ‑them, would render the appeal incompetent. The principle underlying this rule is that otherwise inconsistent and contradictory decrees would come into existence regarding the same subject‑matter and as a result of the same litigation. This principle has been reiterated by the superior Courts on several occasions‑See , Ram Chand Dalli Mal v. Badri Nath (A I R 1935 Pesh. 106), Ramzan v. Allah Diwaya (P L D 1953 B J 45), Qasim Khan v. Mst. Malkai (P L D 1963 Pesh. 58), Muhammad Jamil v. Chairman, Industrial Court (P L D 1964 S C 559), Wali v Manak Ali (PLD 1965SC651) and Shah Muhammad v. Muhammad Bakhsh (PLD 1972SC321). There is accordingly no escape from the conclusion that the Regular First Appeal filed in the High Court by only seven defendants, out of 16, impleading five defendants as respondents and leaving out four defendants altogether, was not properly constituted, and merited dismissal on that score. The question, however, arises whether there are any special features or circumstances justifying a departure from this well‑established rule. As already stated, the appellants appended a note to their memorandum of appeal in the High Court that defendants Buland, Dhannu Mal and Muhammad Musa were not being impleaded as respondents as they had died before the decree was passed by the trial Court. The learned Judges in the High Court did not accept this explanation as they took the view that the statement embodied in the aforesaid note brought the case within the purview of rule 6 of Order XXII of the Code of Civil Procedure, namely, that there would be no abatement by reason of the death of either party between the conclusion of the hearing and pronouncing of the judgment and judgment may in such case be pronounced notwithstanding the death, and shall have the same force and effect as if it had been pronounced before the death took place. The learned Judges observed that the decree was, therefore, not a nullity against these three defendants, and their legal representatives; were, therefore, necessary parties to the appeal. We are inclined to agree with the view taken by the High Court in this behalf. Apart from the note appended to the memorandum of appeal, the appellants did not bring anything on the record to show that these three defendants had died before the conclusion of the hearing of the suit, so that the matter was not covered by the rule relied upon by the High Court. As a consequence, three necessary parties to the appeal were left out. The omission of defendant Palya was sought to be explained by saying that at the time of the hearing of the first appeal by a learned Single Judge of the former High Court of Bahawalpur the plaintiff‑decree‑holder had not objected to the absence of Palya, and that in his own Constitutional appeal filed against the judgment of the Single Bench dated the 4th of April 1948, the plaintiff had similarly omitted to implead Palya. We consider that these explanations cannot be accepted. The Judgment of the learned Single Judge dated the 4th of April 1948 having been set aside by this Court as being a nullity in the eye of law, it is hardly relevant to explain the omission of the name of Palya by reference to the proceedings taken by that learned Judge. The omission of Palya's name in‑the Constitutional appeal filed by the decree‑holder against that judgment was obviously due to the fact that: his name did not figure in the judgment and decree appealed from at that stage. It is also obvious that the conduct of the decree‑holder, which has any relevance in this context, has to be prior in time to the institution of the Regular First Appeal, and not subsequent to its disposal by the learned Single Judge. We are, therefore, of the view that the absence of Palya from the list of respondents in the First Appeal was not at all satisfactorily explained by the appellants. As a result, the High Court was right in. holding the appeal to be incompetent on the ground that four of the defendants, namely, Buland, Dhannu Mal, Muhammad Musa and Palya who were necessary parties, had not been impleaded at all as respondents. For this reason the appeal merited dismissal. At one stage in the arguments it was submitted by Sh. Ghias Muhammad that the reason for omitting Palya's name from the list of respondents in the first appeal was that in the Decree‑sheet prepared by the learned District Judge, Rahim Yar Khan, this man's name was not mentioned. However, a perusal of the decree‑sheet does not support his contention as the name of Palya son of Sarbuland is mentioned at serial No. 10 in the list of defendants. However, certain further developments took place during the pendency of the appeal in the High Court. The decree‑holder as well as the appellants Muhammad Din, Fateh Muhammad and Karam Ilahi died during this period besides the defendant‑respondents Moti, Abdul Waheed and Muhammad Abdullah. While action was taken to bring on record the legal representa tives of the decree‑holder Qazi Mehr Din and appellants Muhammad Din. Fateh Muhammad and Karam Ilahi, the appellants gave up as unnecessary the respondents Moti, Muhammad Abdullah and Abdul Waheed. An order to this effect was made by a Division Bench of the High Court on the 3rd of March 1965, observing that the names of these defendants were being struck off from the category of respondents on the statement of the learned counsel for the appellants who wanted to give them up as unnecessary but the consequences of this action would be borne by the appellants. From the judgment of the High Court under appeal it appears that two other defendant‑respondents had also died during the pendency of the R. F. A., namely, Ali Muhammad and Abdur Rahman, and no action was taken by the appellants to bring their legal representatives on the record. Nothing was said at the Bar to challenge the correctness of this position, except that in the previous appeal pending in the Supreme Court the plaintiff' had himself given up Moti, Abdullah, Ali Muhammad and Abdur Rahman. In this behalf reference was made to an application made by the plaintiff in the Supreme Court on the 27th of June 1961. We have already observed that the conduct of the plaintiff, or his legal representatives, which has a direct bearing on the question we are considering, here, must relate to a point of time period to the institution of the R. F. ,1. in the High Court. and not to subsequent events which may or may not be justified in the context in which they occurred. In view of the fact that the decree obtained by the plaintiff Qazi Mehr Din was joint and indivisible against all the sixteen defendants, the onus lies heavily on the present appellants to show that their appeal could proceed in the absence of certain necessary parties. The decree‑holders were not estopped from challenging the competence of this appeal, simply because in a subsequent appeal filed by them in the Supreme Court, they had given up some of the defendants. It would thus appear that the R. F. A. had clearly abated against some of the defendants owing to the failure of the appellants to implead their legal representatives, and for this reason again, the appeal could not proceed: in view of the nature of the decree passed by the trial Court. The High. Court appears to us to have correctly applied in this behalf the rule laid down by this Court in Wali v. Manak Ali. For the foregoing reasons, we have reached the conclusion that, in the first place, the R. F. A. was incompetent because it omitted to implead defendant Palya, and the legal representatives of defendants Buland, Dhannu Mal and Muhammad Musa. In the second place, the appeal abated as against Moti, Ali Muhammad, Abdul Rahman, Abdul Waheed and Muhammad Abdullah, on account of the failure of the appellants to implead their legal representatives within the time allowed by law for this purpose. As the decree under appeal was joint and indivisible against all the defen dants, these deceased defendants were necessary parties, and the appeal could not proceed at all in the absence of their legal representatives. For both these reasons, the High Court was justified in dismissing the appeal. Accordingly, the present appeal fails and is hereby dismissed with costs. K. B. A. Appeal dismiss