1991 PLP 1729 (SCMR)

SHAFIUR RAHMAN, J.‑‑‑Leave to appeal was granted to examine whether the High Court was justified in accepting the request of plaintiffs/respondents Nos.1 and 2 of deleting the name of the appellant as a party to the proceedings and deciding the appeal pending before it in the absence of the appellant.

2. The plaintiffs were allottees of Plot No.23‑B, View Forth Road, Murree which was resumed from them on 6‑6‑1961 on account of their failure to abide by the terms of their allotment. The same plot was thereafter sold by public auction on 12‑8‑1961 in favour of the appellant which auction was confirmed and she deposited the necessary amount then due from her for the purchase of the plot. It w s in this background (hat on 6‑9‑1962, the plaintiffs instituted a civil suit impleading the Murree Improvement Trust and the husband of the appellant as the auction‑purchaser. Their claim in the suit was for perpetual injunction restraining the Murree Improvement Trust from dispossessing the plaintiffs from Plot No.23‑A or in any other manner interfering with their right of user and ownership over the said plot and delivering its possession to the husband of the appellant. The suit was proceeded ex parte against the husband of the appellant. Notwithstanding the fact that he disclosed the particulars of the purchaser, an ex parte decree was granted. On appeal, it was set aside. In second appeal, the appellant was impleaded but proper service was not effected on her and the appeal was decided by the High Court accepting the contentions of the plaintiffs and restoring the judgment and decree of the trial Court. The matter was brought to this Court and that appeal was allowed with the following observations:‑‑ "We have gone through the various orders impugned before us and find that there has been unnecessary hurry with the hearing of the case; that the petitioner was not properly impleaded nor any occasion arose for a situation to justify early hearing; nor proper attempt has been made to serve the petitioner personally or to affix the notice on the permanent residence of the petitioner; it was also not favourably considered that address of the petitioner who is member of a well‑known family of the area, was not known to the respondents/plaintiffs. Mr. S. M. Zafar learned counsel for the respondents‑plaintiffs also did not very seriously challenge the points raised. We convert this petition into appeal, set aside the order of the learned High Court dated 20‑2‑1983 and remand the case for fresh decision of appeal (R.SA. 305 of 1967) after proper notice to the parties. expeditiously. No order as to costs."

3. Consequent to this decision, the matter again went before the High Court. The appellant was served and heard and at an advanced stage of the arguments it is said the learned counsel for the plaintiffs/appellants before the High Court made a statement again for striking off the name of the appellant. The High Court allowed this request observing as hereunder: . "Today when the R.SA. came up for hearing, her name was struck off the record on the statement of Mr.S.M. Zafar, counsel for the appellants, as in his view she was not even a proper party to the appeal. It appears that she was not impleaded in the suit and was joined for the first time by the appellant‑Improvement Trust in the first appeal preferred before the learned Additional District Judge, Rawalpindi. Mian Nisar Ahmad, Advocate, for her, at the outset pointed out this lacuna emphasizing his request for remanding the whole case to the trial Court to afford her an opportunity of being heard as a subsequent allottee of the impugned plot but perhaps to avoid any such eventuality, counsel for the appellants relying upon M/s Jans Caterers v. The Islamic Republic of Pakistan through the Chairman, Pakistan Western Railway, Lahore and 2 others P L D 1972 Lahore 169 (172) thought of giving her up altogether as her non‑joinder would not affect his rights based entirely upon the initial contract of allotment of the plot in his favour. He made the statement accordingly and she stands written off." The appeal was accepted after striking off the appellant as a party and the judgment of the first Appellate Court was set aside and that of the trial Court restored.

4. The question whether the appellant Mrs. Haliman Hanif Moonnoo was necessary party or not stands decided and conclusively by the decision of this Court, portions of which have been reproduced above. If she was a proper party, there could have been no occasion for setting aside the judgment of the High Court and for remanding the case to the High Court. The remand itself indicates that the decision was required to be taken by necessarily impleading her, by properly serving her and by allowing an adequate opportunity to her to defend her interest. An indication was also given in the same judgment that the plaintiffs had been proceeding rather hurriedly to conclude the proceedings in the suit in the absence of the person having real interest in the property as a result of the auction. Nothing more was required to be said to emphasise these two aspects. The High Court has not examined this aspect of the matter at all.

5. That the auction‑purchaser was a necessary party to the suit is borne out from the nature of the suit itself. It was for a permanent injunction. The legal basis for the permanent injunction was the subsisting title of the plaintiffs in the land and possession over it on account of such title. Prior to the institution of the suit the title in the suit property had come to vest in the appellant. Any recognition or enforcement of plaintiffs' title and possession on account of it would necessarily imply complete and total ouster of the title and interest of the appellant. The plaintiffs cannot succeed at all without effacing the title and interest of the appellant. Plaintiffs' interest and that of the appellant cannot co exist or stand together. That such title/interest of the appellant had come to vest prior to the suit of the plaintiffs makes all the difference. That the suit is not for a mere declaration against the act of the local authority also makes some difference. That the plaintiffs themselves considered the auction‑purchaser to be .a necessary party is borne out by the fact that there was a defendant No.2, mistakenly taken to be auction‑purchaser. Then when the appellant was substituted and introduced, proper service on her was blatantly neglected by giving address which could hardly befit serious litigants concerned about their vital interest in immovable property. Much has already been said about it. In the absence of the appellant, the suit cannot proceed to a decision. As a factual inquiry is required to be undertaken in her presence and with her participation it is necessary that the trial Court should deal with it de novo, in the first instance.

6. This appeal is allowed. The judgment of the High Court is set aside and also all the other judgments delivered without impleading the appellant and the case shall stand remanded to the trial Court where she shall be impleaded as a defendant, properly served and the trial shall take place de novo with her (the appellant's) participation and in her presence. No order as to costs. A.A./H‑126/S Appeal allowed.