2001 PLP 1337 (CLC)

‑‑‑‑Ss. 96, 115 & 0.1, R.10‑‑‑Non‑impleading of party‑‑‑Appeal against judgment and decree of Trial Court was dismissed by Appellate Court on the ground that one female who was impleaded as one of the defendants in the suit before the Trial Court, had not been impleaded as a party to the appeal‑‑ Reason for non‑impleading of said female was that her name stood omitted in decree‑sheet prepared by the office of the Trial Court, but Appellate Court had failed to take into consideration that fact‑‑‑Appellate Court in dismissing appeal had acted with material irregularity in exercise of its jurisdiction, while dismissing the appeal on short ground that the female had not been impleaded‑‑‑High Court in exercise of its revisional jurisdiction set aside order of Appellate Court. Said Muhammad and others v. M. Sardar and others PLD 1989 SC 532 ref. Usman Subhani for Petitioners. Nemo for Respondents. Date of hearing: 8th March, 2001. On 1‑11‑1968 respondent No.1 filed a suit against the petitioners and the remaining respondents. In the plaint it was alleged that the suit‑land was owned by Mst. Nawabun Nisa, widow of Rajab Ali; that she made a registered will in favour of respondent No. l on 18‑2‑1956. The testator died on 29‑5‑1959 and respondent No. l took over possession under the will. The suit was resisted by the petitioners. For the order 1 propose to pass I do not feel the necessity to refer to the defence. Suffice it to say that issues were framed, evidence of the parties was recorded and the suit was decreed on 7‑4‑1980 by the learned trial Court. Feeling aggrieved the petitioners filed a first appeal which was heard by a learned Additional District Judge. Sialkot. On 4‑3‑1986 the learned Additional District Judge found that Mst. Khurshid Begum who was impleaded as defendant No.20 in the suit had not been impleaded as a party to the appeal. On this ground the learned Additional District Judge had proceeded to dismiss the appeal.

2. Learned counsel for the petitioners contends that sufficient cause had been shown for non‑impleadment of the said Mst. Khurshid Begum and the learned Additional District Judge ought to have allowed them to implead her and to proceed with the appeal on its merits. The contesting respondent No.1/plaintiff had been served but. she has not put up appearance. She is proceeded against ex parte.

3. I have gone through the record. The explanations given by the petitioners for non‑impleadment of Mst. Khurshid Begum was that her name stood omitted in the decree sheet prepared by the office of the learned trial Court. I have examined the said decree sheet which is available at pages 22 and 23 of the paper book and I agree with the learned counsel that the name of Mst. Khurshid Begum stood omitted from the array of defendants in the decree sheet. The Supreme Court of Pakistan in the case of Said Muhammad and others v. M. Sardar and others PLD 1989 SC 532 has held that powers under Order I, Rule 10, C.P.C. an available to an Appellate Court as well and a similar explanation offered for non‑impleadment of a necessary party was accepted. I, therefore, hold that the learned Additional District Judge has acted with material irregularity in the exercise of his jurisdiction while dismissing the appeal of the petitioners on the short ground that Mst. Khurshid Begum had not been impleaded. This civil revision is accordingly allowed. The judgment and decree, dated 4‑3‑1986 of learned Additional District Judge Sialkot is set aside. The result would be that the appeal filed petitioners shall be deemed to be pending before the learned District Judge, Sialkot where they shall appear on 10‑4‑2001. The learned District Judge shall requisition the record and allow the petitioners to implead Mst. Khurshid Begum or her L.Rs. in the appeal and thereafter either to proceed with the same himself or make it over to a learned Additional District Judge for hearing and decision of the case on merits. No orders as to costs. H.B.T./A‑197/L Revision allowed.