2016 PLP 2798 (YLR)

MUHAMMAD JUNAID GHAFFAR, J.

Learned Counsel for the applicant submits that through impugned order, the Appeal filed by the applicant was dismissed on the ground that the applicant had not arrayed all the Defendants in the Suit as respondents in the Appeal filed before the Additional District Judge, Sukkur. Per learned Counsel though this was a mistake on the part of applicant, however, in terms of Order XLI Rule 20, C.P.C., there is no limitation in this regard, whereas Appellate Court could have exercised its Suo Motu powers and directed the applicant to implead all the Defendants in the Suit as respondents in the Appeal. Learned Counsel in support of his contentions has relied upon case of Mst. Sardar Begum v. Muhammad Anwar Shah (1993 SCMR 363) and Muhammad Siddique v. Kareem Bakhsh (2008 CLC 1586). From perusal of the impugned order, it appears that the applicant who was Defendant No.1 in F.C. Suit No. 61 of 2008 filed by the respondent along with 11 other Defendants, while filing Appeal before the Additional District Judge, Sukkur, against judgment dated 6.10.2010 passed by the Senior Civil Judge, Sukkur in Suit No. 61 of 2008, had arrayed only the respondent No. 1 as the sole respondent and had left out other Defendants in the Suit who were also required to be arrayed as respondents in the Appeal. It is further noted that even after filing of objections in this regard by the respondents through an application seeking dismissal of Appeal as not being maintainable, the applicant had not made any effort to seek permission of the Appellate Court for bringing on record the remaining Defendants, as respondents in the Appeal. Learned Appellate Court has, therefore, dismissed the Appeal as being, not maintainable by relying on the case of Mst. Murad Begum v. Muhammad Rafiq (PLD 1974 SC 322), wherein the Hon'ble Supreme Court has held as under:-- "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 Mahmed Shah v. Mst. Saran (1), Hem Chand v. Pearay Lal (2), Kanda v. Waghu (3), Messrs Choudhry Brothers v. Jaranwala Central Co-operative Bank Ltd. (4) Mst. Sherina v. Haji Ghawar Khan (5) and Abdul Karim v. Mirza Bashir (6). 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, nor 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 in to an agreement with the plaintiff Qazi Mehar Din. Once it is found that the decree appealed from by some of the defendants was joint and indivisible against all the defendants, and 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 Rath (1), Ramzan v. Allah Diwaya (2), Qasim Khan v. Mst. Malkai (3), Muhammad Jamil v. Chairman Industrial Court (4), Wali v. Manak Ali (5) and Shah Muhammad v. Muhammad Bakhsh (6). 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". It is further noted that even no explanation was appended with the memo of appeal or in any other manner so as to justify such conduct on the part of applicant, whereby the other Defendants in the Suit were left out and not arrayed as respondents in the Appeal. Though I am mindful of the fact that procedural provisions, like Order XLI, Rule 20, C.P.C., are to be construed liberally in order to advance the cause of justice and a party to lis shall not be denied relief on account of technicalities in the procedural law, however, it must also be kept in mind that while exercising such discretionary relief, the Court is also duty bound to look into the conduct of the party seeking such relief, as there may be a situation wherein, due to exercise of such discretion the interest of the other party is seriously prejudiced and rights accrued are also infringed, without there being any mistake on its part. In this regard would I like to refer to the observations of the Hon'ble Supreme Court in the case of Muhammad Jamil v. Chairman, Industrial Court, West Pakistan and another (PLD 1994 SC 559), wherein the facts were that an appeal against an award of Industrial Court of West Pakistan, Lahore, was filed and the employer was not impleaded as a respondent in the appeal, which was dismissed on the ground of non-joinder, whereas, the request for impleading the employer under Order XLI, Rule 20, C.P.C., was also dismissed. The Hon'ble Supreme Court while dismissing the appeal recorded the following observation with regard to the rights accrued to the employer and as to exercise of discretion under Order XLI, Rule 20, C.P.C., which reads as under: "The employer is therefore, entitled to hold to the award which is in his favour and in the words of Sir John Wallis in V.P.R. Chockalingam Chetty v. Seethai Ache and others (AIR 1927 PC 252) it is a substantive right of a very valuable kind of which they should not lightly be deprived'. In these circumstances Mr.Zafar has rightly contended that in the absence of the employer it would not be possible to modify or set aside the award. Mr. Zaman has prayed for condonation of the delay. No doubt under Order XLI, Rule 20 of the Code of Civil Procedure the Court has power in a proper case to allow a necessary party to be added as a respondent, but the power to take the action is discretionary and should not be exercised in case of extreme neglect. On 13th February, 1963, The Court enquired suo motu why the employer was not added as a party in this case and the appellant thereafter on 19th February, 1963, filed a petition for adding the employer as a respondent in the appeal. He however, even then did not file any petition for condonation of the delay. In the petition he merely stated that through inadvertence he did not implead the employer as a party. The employer has acquired a valuable right which we do not think should be taken away from his in circumstances of the present case. The preliminary objection therefore ought to prevail." The above observation of the Hon'ble Supreme Court is relevant to the facts of the instant matter, as in the instant matter, neither any application was filed by the applicant under Order XLI, Rule 20, C.P.C. for seeking leave of the Appellate Court for bringing the other Defendants on record, nor had sought condonation of delay in this regard by filing appropriate application. Not only this, even after filing of application by the respondent, objecting the maintainability of the Appeal on this ground, no serious effort was made by the applicant in this regard, rather the said application was contested by filing a counter affidavit/reply. In my opinion the Appellate Court has correctly upheld the objections, which otherwise ought to have prevailed, looking at the conduct of the applicant in the facts and circumstances of the instant case. In view of hereinabove facts and circumstances of instant case, I am of the view that the learned Appellate Court has rightly dismissed the Appeal as being incompetent in law by relying on the judgment in the case of Mst. Murad Begum v. Muhammad Rafiq (PLD 1974 SC 322) and the impugned order being unexception-able, does not require any interference by this Court. Accordingly, instant Revision Application being misconceived in facts and law is dismissed in limine. ZC/R-9/Sindh Revision dismissed.