P L D 1989 Supreme Court 532 (PLP)

The main obstacle for not impleading Abdul Ghafoor was that as the time had run out against him, he ceased to be a necessary party, and that by joining him now in the appeal there would be the possibility of two inconsistent decrees being passed. This conclusion rested on the ground that under Order XLI, Rule 20, C.P.C. a necessary party against whom the period of limitation to file an appeal has run out cannot be said to be interested in the result of the appeal; and support for this view was taker# from the cases reported as V.P.R.V. Chockalingam Chetty v. Seethai Ache and others (A I R 1927 Privy Council 252) and Labhuram and others v. Ram Partap and others (A I R 1944 Lah. 76). It would appear from the observations of the Privy Council in the first case that in the appeals filed in the High Court against the decree of the trial Court dismissing the suits‑‑two of the defendants in one suit and one defendnat in other suit were not parties to the appeal and in the context of Order 1, Rule 10, C.P.C. their Lordships held that when parties are added after the institution of the suit it is the date when they are added which should be deemed to be the date of the institution of the suit so far as those parties are concerned for purposes of limitation by reason of section 22 of the Limitation Act, and, therefore, the rights they have acquired under the Limitation Act are sufficiently safeguarded. Accordingly, the failure to make these defendants as respondents in the appeals within the time limited for filing such appeals so far as they are concerned became prima facie barred by limitation and they are entitled to hold the decrees in their favour which is a substantive right of a very valuable kind of which they should not lightly be deprived. Referring to Order XLI, Rule 20, C.P.C. , their Lordships observed that the rule empowers the Court to make such a party respondent when it appears to it that "he is interested in the result of the appeal" and upon g'‑v'‑no these words their natural meaning their Lordships held that in the facts and circumstances of this case, the defendants against whom the suits were dismissed and as against whom the right of appeal has become barred, it seems impossible to say that they are interested in the result of the appeal filed by the plaintiff against the other defendants. Concluding, their Lordships observed that it was for the appellant who applied to the Court to exercise its power under this rule to show what was the nature of the interest and this the appellant had failed to do. The essence of the statement is that for the Court to act under this rule it must appear that the defendant who is sought to be made a party is interested in the result of the appeal and the onus is on the party who seeks to implead the defendant as a respondent in the appeal to show as to what was the nature of the interest. It did not foreclose the exercise of discretion to be exercised in the circumstances of the case and that this carried with it the power to condone the delay. In the second case, the observations of their Lordships of the Privy Council in the first case were relied on for holding that it was open to the appellant to show whether the defendant who is not impleaded in appeal retains any interest in the result of the appeal in the light of the remarks that precedes the sentence namely that the defendant against whom an appeal has become time‑barred ceases to have any interest in the result of the appeal. And further that once time for an appeal has run out it is not possible for an appellant subsequently to implead those defendants who were not originally impleaded as respondents in the appeal and that no question of the application of section 5 of the Limitation Act arises in such cases as neither an application by an appellant for the exercise of the power of the Court under Order XLI, Rule 20, C.P.C. can be characterised as an appeal nor it is any such application as is contemplated by section 5 of the Limitation Act. Adding further, it was said that under Order XLI, Rule 20, C.P.C. no right vests in any appellant to make an application under Order XLI, Rule 20, C.P.C. It is the Court which has the discretion to add a party who is interested in the result of the appeal and it is the Court that can make that order suo motu. It seems to be clear from the ratio decidendi of this case that a Court can exercise suo motu power to override limitation in case if it finds that the defendant sought to be impleaded was interested in the result of the appeal. However, the word "appears" occurring in Order XLI, Rule 20, C.P.C. is given a restricted meaning to mean only the suo motu exercise of power instead of giving to it its ordinary meaning. In Mehtab Beg and 2 others v. Ghulam Muhammad and others, P L D 1975 Lah. 580, it was held following the afore‑stated Privy Council's case that Order XLI, Rule 20, C.P.C. empowers the Court to make such a party as respondent when it appears to the Court that he is interested in the result of the appeal and it was for the Court in each case to exercise it discretion as to whether or not it will make an order for the addition of a party. Having concluded so, the issue was further clinched that this power could not be exercised on the application of a party and the reliance seems to be for this conclusion on the case of Labhuram cited above. In Muhammad Sher v. Muhammad Khan, P L D 1975 Lah. 1016 again the observations of Privy Council in the above cited case were examined and it was held: I have purposely used the expression ordinarily', the reason being that their Lordships did not lay it down as a rigid proposition of law applicable in all circumstances. The tenor of the judgment shows that it would depend upon the circumstances of each case as to whether such a defendant is interested in the result of the appeal or not. In other words, 'it is for the plaintiff /appellant (where a defendant has to be added as respondent in appeal) who applies to the Court to exercise its powers under this rule, to show what is the nature of the interest of such defendant'. This interpretation of .the ruling of their Lordships of the Privy Council finds support from the last part of their judgment in V.P.R.V. Chockalingam Chetty v. Seethai Ache and others, (A I R 1927 P C 252 at page 256 of the report) where the argument, that apart from rule 20 of Order XLI, rule 33 thereof may also be attracted, was considered." Sulaiman, J., in his separate opinion in United Provinces v. Atiqa Begum, (A I R 1941 F C 16) while holding that Order XLI, Rule 20 would not apply to the case under consideration, nonetheless expressed that the language of Rule 20 of Order XLI "does not show that it is exclusive or exhaustive so as to deprive a Court of any inherent power which it may possess and can exercise in special circumstances, and which has been saved by section 151, C.P.C." These observations were made while considering Order 1, Rule 10(2), C.P.C. which empowers the Court of original jurisdiction to order that the name of any person who ought to have been joined or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved, be added. A person would be a necessary party in whose absence no effective decree can be passed at all and he would be a proper party if his presence is necessary for an effectual and complete adjudication. As the facts stand out the case under consideration was one in which dispute was between a landlord and his tenant and in that controversy the Provincial Government could not be considered a necessary party at all as a proper decree could be passed in their absence. But when in such a suit the validity of an Act of the Provincial Legislature was in question, the adjudication would affect a large section of the public, and the Provincial Government would be indirectly interested in such an adjudication, and as in the present case to this further extent that the effect of the High Court's judgment would be to nullify certain orders, previously issued by the Government, the enforceability of which was indirectly attempted by the impugned Act. Accordingly, the High Court thought that it would not only be convenient but quite fair to make the U.P. Government a respondent to enable it to secure a more authoritative prounoucement particularly because the Act was passed during the pendency of the High Court appeal, and thus there was no early occasion on which the Government could have been impleaded. In Munshi Ram v. Abdul Aziz, A I R 1943 Lah. 252, it was held that the language of Order XLI, Rule 20 is not exclusive or exhaustive so as to deprive a Court of any inherent power (saved by section 151) which it may possess and can exercise in special circumstances. Further upon the review of the judgment of the Privy Council cited earlier the Court held: "It was, however, held in I.L.R. (1938) Mad. 52 that the Privy Council ruling cannot be taken as laying down that no person against whom the right of appeal has become barred can ever be added as a respondent under the provisions of 0.41, R.20. The opinion of the Bombay High Court as expressed in I.L.R. (1937) Bom. 602 is that their Lordships of the Privy Council did not lay down any inflexible rule of interpretation of the expression 'interested in the result of the appeal', in 0.41, R.20, and that the remarks of their Lordships imply that the question whether the interest of the respondents proposed to be added still survives in the appeal must depend on the nature of the litigation, the decree passed, the subject‑matter of the appeal, and the effect of the decisions in appeal in their absence. With all deference this view appears to be the correct one. Apart from this it was held by the Federal Court in the case already referred to A I R 1941 F C 16 that the language of 0.41, R.20, does not show that it is exclusive or exhaustive so as to deprive a Court of any inherent power which it may possess and can exercise in special circumstances and which has been saved by S.151. This ruling was following by Tek Chand and Beckett, JJ. In AI R 1941 Lahore 402, and they held that the Courts have inherent powers to add a party to appeal even after the expiry of period of limitation if they think fit to do so." In Jangir Singh v. Mit Singh, (A I R 1955 Pepsu 62), on account of a mistake the name of the plaintiff was omitted from the memorandum of appeal filed by the defendants as there was a similarity of the names with that of another plaintiff. The mistake came to light at the hearing of the appeal and the appellant then sought permission to correct the memorandum of appeal by adding the name of that plaintiff. This course was resisted by the respondents who relied on A I R 1927 P C 252 and A IR 1944 Lah.

76. The counsel for the appellants relied on A I R 1941 F C

16. The Division Bench considered a large number of cases for and against the proposition and at page 64 of the report held as under: "So, the weight of judicial opinion is against the view of Din Muhammad, J., in A I R 1944 Lah. 76 (ILR (1945) 26 Lah. 18) (FB). We prefer to follow the dictum of Sulaiman, J. , in A I R 1941 F C 16, and particularly as it is not opposed to the decision in the Privy Council case in A I R 1927 P C

252. The present being a case in which the name of plaintiff Ishar Singh, son of Fateh Singh was omitted by a bona fide mistake because of the sameness of his name with that of another plaintiff, we are of the opinion that the Court has power to rectify the mistake and order the addition of Ishar Singh, son of Fateh Singh, as party respondent in the appeal under 5.151, Civil Procedure Code. In this view the judgment of the learned District Judge cannot be upheld." In Notified Area Committee v. Gobind Ram, (A I R 1959 Punjab 277) at page 287, it was held upon an examination of the case‑law; "For the reasons given above, I am of the opinion that no inflexible rule of interpretation of the words 'interested in the result of the appeal' as given in Order XLI, rule 20, Civil Procedure Code, has been given by their Lordships of the Privy Council in ILR 6 Rang 29 (A I R 1927 P C 252), and that the view taken of this case by the Full Bench in ILR (1945) 26 Lah. 18 (A I R 1944 Lah. 76), as also in the other cases referred to above is not correct, and that it must be decided on the facts and circumstances of each particular case whether the person sought to be added in that case is one interested in the result of the appeal. The Privy Council case cannot, at any rate, be taken to be an authority for the proposition that a party left out or not impleaded in appeal on account of a bona fide mistake cannot be so impleaded under the inherent powers of the Court, more especially when the error is on the part of the Court or its officials in supplying an erroneous copy either of the decree or of the judgment." In Jalal Din v. Karim Bakhsh, (A I R 1930 Lah. 295), it was held that if by omission the name of the party is left out due to oversight, the proper course for the appellate Court is to exercise its power under Order XLI, Rule 20 and implead the party so omitted in appeal. In Kisanrao v. Nanaji, (A I R 1935 Nagpur 182), some three defendants were left out from being joined as parties in the memorandum of appeal through inadvertence. An application was thereupon moved under Order 41, Rule 20, seeking for the joinder of these defendants as respondents on the ground of mistake. An objection was taken that this application was belated but as they were interested in the result of the appeal, they were ordered to be impleaded. In this context the Court observed: "Even if an application had not been made by the appellants for their joinder the Court could itself make them respondents under the provisions of 0.41, R.20, Civil P.C., as they were interested in the result of the appeal." In Muhammad Jamil v. Chairman Industrial Court, West Pakistan, (PLD 1964 S C 559), there was an industrial dispute between the employer and its Labour Trade Union and on the failure of the conciliation proceedings an award was given in pursuance of an application filed under subsection (5) of section 5 of the Industrial Disputes Ordinance, 1959. In the petition for special leave to appeal filed by the appellant on 9‑5‑1962, the employer was not impleaded as party. It was on 19‑2‑1963 that the appellant filed a petition for adding the employer as a respondent which was allowed by the Court subject to all just exceptions long after the period of limitation had expired. An objection was taken at the hearing by the learned counsel for the appellant as to the competency of the appeal as being improperly instituted which prevailed as it was found to be a case of extreme neglect. In this context this Court observed: "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 of 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 the 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 him in the circumstances of the present case. The preliminary objection therefore ought to prevail." It is obvious from the above that the power was not exercised because of extreme negligence on the part of the appellants despite the fact that the employer was a necessary party, and what is significant is that while having taken note of the Privy Council decision in V.P.R.V. Chockalingam Chetty's case, it did not deny the relief on the ground that ‑as the time had run out the employer ceased to be a necessary party or that the Court could not act on the application moved for this purpose or that the limitation could not be cordoned. Here I may repeat what the Court held: "He, however, even then did not file any petition for condonation of delay." Neither the appellate Court nor the High Court took note of this decision before rejecting the appeal. From the above discussion, the statement of law in V.P.R.V. Chockalingam Chetty's case stands explained and the preponderance of opinion is against the rigid view taken in Labhuram's case. The Legislature in its wisdom by enacting Order 41, Rule 20, C.P.C. empowered the Court to allow a party to be added in an appeal already filed when none could be added after the limitation had run out. The purpose more or less is the same as that with investing the Court with the powers to condone the delay under' section 5 of the limitation Act which is not in terms applicable. The purpose is not far to seek as the Legislature must be presumed to have visualized situations where there could be an omission to implead the necessary parties either as a result of bona fide mistake or o account of no mistake of a party seeking addition of the necessary party or for some other justifiable reason. The rigidity in the application of Order 41, Rule 20, C.P.C. as concluded in Labhuram's case that where a party is not impleade S 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 impdead 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 41, 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 wake 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. Coming now to the facts of the case, we are of the view that non‑impleading of Abdul Ghafoor as a party in the case was an inadvertent error, and, accordingly, it was none else but a bona fide mistake which the Courts below failed to appreciate. Two applications were filed; one by the appellant on 17‑4‑1988 and the other by the respondent on 5‑2‑1987 seeking redress in the light of the allegations made therein, but in view of the order that we propose to make, we would leave it to the Additional District Judge II, Sahiwal to decide them on merits. In the result and for the reasons given above the appellant succeeds. At the conclusion of the hearing we announced the result of the appeal by a short order which is as under: "For the reasons to be given later, we allow the appeal with costs, set aside the impugned orders of the appellate Courts and remand the case to the Additional District Judge lI, Sahiwal with the direction to implead Abdul Ghafoor as a respondent in the appeal and to dispose it of in accordance with law within six months. As for the application filed by the appellants on 17th of April, 1988, in this Court for examining the legal implications arising from the subsequent events during the pendency of the appeal namely the factum of gift by Motian Bibi of her share measuring 20 Kanals 3 Marlas out of the land situate at village Lohariwala alleged to have been exchanged with the land of the appellants; and the respondents' application, dated 5th of February, 1987, complaining of visible discrepancies and apparent interpolations in the award printed in the paper book which was found, on inspection of the record, not to have been printed from the original award but from a document which was smuggled into the record of the lower Courts, are both matters which should be agitated before the first appellate Court for redress as this Court, in view of the order passed, cannot go into these questions. The contempt application has become infructuous and is disposed of accordingly." M.B.A./S‑315/S Order accordingly.