2006 PLP 1165 (CLC)

MAULVI ANWARUL HAQ, J.

For the order I propose to pass in this case, reference to the pleaded facts would not be necessary. Suffice it to say that feeling aggrieved of judgment and decree dated 14-12-1989 passed by the learned trial Court whereby a declaratory suit filed by the petitioners had been dismissed, they filed a first appeal. During the course of the said appeal, it was pointed out that Sher Muhammad and Khair Muhammad defendants Nos.1 and 2 in the original suit had died during the pendency of the suit and their legal representatives had also been brought on record but the said L.Rs. have A not been impleaded and instead Sher Muhammad and Khair Muhammad were impleaded as such. An application was filed on 9-1-1991 by the petitioners for permission to implead the L.Rs. of the said deceased persons. The learned Additional District Judge vide order, dated 24-9-1995 proceeded to dismiss the application and to dismiss the appeal as well finding it to be not maintainable in absence of the L.Rs. of the said Sher Muhammad and Khair Muhammad.

2. Learned counsel for the petitioners contend that the impugned judgment and decree of the learned Additional District Judge, Kot Addu, is violative of the dictum of the Honourable Supreme Court of Pakistan in the cases of Mst. Sardar Begum v. Muhammad Anwar Shah and others 1993 SCMR 363 and Said Muhammad and others v,. M. Sardar and others PLD 1989 SC

532. Learned counsel for the contesting respondents has not much to say to oppose the said contention. He, however, insists that the application had been filed belatedly.

3. I have examined the copies of the records. The reason as to why the appeal had been dismissed has already been noted by me above. It is but evident that the impugned judgment and decree of the learned Additional District Judge, Kot Addu, fails to take note of the said latter judgment of the Honourable Supreme Court of Pakistan interpreting Order XLI, rule 20, C.P.C. In the said case of Said Muhammad and others, the following rule was laid which was also confirmed in the said later authority:-- "The rigidity in the application of Order XLI, Rule 20, C.P.C., as concluded in Labhuram's case that where a party is not impleaded in appeal within the period of limitation he can never be deemed to be an interested party in the result of the appeal is no longer an inviolable rule. In this milieu, this Court in Muhammad Jamil's case examined the question of negligence but did not implead the necessary party in the exercise of its discretion irrespective of the fact that the limitation had run out. This confirms the legislative intent in enacting Order XLI, rule 20, C.P.C. Further as to the reason that although the Court. can exercise such powers suo motu yet it is deprived from exercising such powers at the instance of the party is also of no substance for it would make no difference even if it is initiated by the party whose move for the addition of a party is necessitated by the circumstances of the case as in that event too it will be an exercise of suo motu power. This will be in consonance with the principle that the Court will ordinarily exercise power because technicalities notwithstanding laws or procedure are meant for the advancement of justice and not for denying it."

4. Now it is being urged by the learned counsel that the matters were given in the hand of a learned Advocate and who instead of impleading the parties with reference to the contents of the decree-sheet prepared the memo. of parties with reference to the original plaint. Now C this cannot be termed as a fault of the said party and it should not be allowed to suffer on the basis of a technicality. To my mind, the dictum laid down above by the honourable apex Court is fully applicable to the petitioner's present case. The civil revision accordingly is allowed. The impugned judgment and decree, dated 24-9-1995 of the learned Additional District Judge, Kot Addu, is set aside, the result would be that the first appeal filed by the petitioners shall be deemed to be pending before the learned Additional District Judge, Kot Addu, before whom the petitioner parties shall appear on 8-5-2006. An amended memo. of first appeal shall be filed on the same date. The learned Court of first appeal shall summon the remaining respondents, requisition the records and proceed to decide the appeal on its merits. No orders as to costs in this civil revision but the petitioner shall deposit a sum of Rs.5,000 in the Court of learned Additional District Judge to he disbursed to the respondents as directed by the said Court.

5. A copy of this judgment be immediately remitted to the learned Additional District Judge, Kot Addu. S.A.K./K-26/L??????????????????????????????????????????????????????????????????????????????????????????????? Revision accepted.