P L D 1992 Supreme Court 590 (PLP)

MUHAMMAD AFZAL ZULLAH, C J.

In these appeals arising out of land acquisition matters the question involved is; whether, the appeals A filed by the Central Government before the High Court were competent. Relying on the well-known case of -Pir Khan v. Military Estate Officer PLD 1987 Supreme Court 485 the High Court held that they were not competent. The applications made by the Collector, who was a respondent in all the appeals before the High Court for transposition as Collector with a view to remove the defect, were also dismissed. Leave to appeal in these cases was granted in view of the fact that this Court had by then decided to re-consider the view taken in the case of Pir Khan. See WAPDA v. Muhammad Farid and others 1990 SCMR 98. . When these appeals came up for hearing the case of Pir Khan had already been re-examined in Iftikhar Hussain Shah v. Pakistan through Secretary, Ministry of Defence, Rawalpindi 1991 SCMR 2193. In accordance with combined reading of these two judgments the learned counsel agreed that although the Collector who was a respondent in these appeals as well as the Provincial Government and/or both of them could have filed the appeals. the view taken by the Peshawar High Court in treating the appeals riled by the Central Government alone as incompetent was unassailable. The question; as to whether, the Collector could be transposed as appellant and/or whether the Provincial Government could be permitted at this stage to join as appellant was however reserved for further examination. In the meanwhile the appellants as well as the Collector were allowed to make application for addition/ substitution/transposition of any or more parties. An application in this behalf has been filed by the learned A.O.R. for the appellants' side; with the request that the Provincial Government of N.-W.F.P. through . the Collector Abbottabad may be transposed as co-appellant in these appeals in the interest of justice. Notice of this application was sent to the other side as is apparent from the affidavit of the A.O.R. . No reply, has been submitted to this application. In the meanwhile another development has taken place. Several appeals including two Civil Appeals Nos. 242 and 538 of 1990 filed by the Land Acquisition Collector came up for hearing before this Court. They were decided on 24th March, 7992. After analysing the two judgments of this Court in the cases of Pir Khan PLD t987 SC 485 and Iftikhar Hussain's case 1991 SCMR 2193, the question; as to whether, an appeal filed by the Collector would have met the objection as to the competency was also examined and it was held that the appeal by the Collector would be competent. Accordingly, two Civil Appeals Nos. 242 and 538 of 1990 were not onlv considered on merits but also allowed. While doing so, the objection as to the maintainability of the R.F.As before the High Court was not found sustainable. The question now that. emerges in these appeals is whether the Collector not having filed the appeals and he being nevertheless a party to them as a respondent could be allowed to be transposed. The High Court, as already noted, examined this aspect of the case and except for Civil Appeal No.398 of 1990 wherein it was not examined, refused the request for transposition of Collector as appellant. The impugned judgment on this question reads as follows:-- "Regarding the applications for transposition of the Collector as appellant it is obvious that the Collector could himself file appeal as there was no legal hindrance in his way. 1t appears that he did not feel aggrieved of the impugned orders but the applications for this purpose have been moved at the instance of the appellant. Therefore, these such belated applications without any plausible explanation are liable to be dismissed on this count alone. Moreover, there is no valid appeal, therefore. to transpose the applicant as appellant would be out of question." In our view, the High Court has taken too strict view of the power granted to the Court by the provisions of the Code of Civil Procedure. Order 1 Rule 10, C.P.C. is very wide in its scope. The power to transpose is derived amongst others, from the said provision which has always been interpreted liberally so as to achieve the complete adjudication of all the questions which are involved in the lis, one of the purpose being to avoid multiplicity of the proceedings. In other words the power to transpose is to be exercised liberally and no technical hurdle is considered so strong as to override the considerations of "adjudication" or right to justice. It is in that very context that when a defendant/respondent is transposed as plaintiff/appellant no question of limitation as such is involved. Order I, rule 9; C.P.C. gives also, very strong support for the foregoing approach regarding interpretation and application of Order I, rule 10, C.P.C. This provision (Rule 9) is in a mandatory negative form; namely, that no suit shall be defeated by reason of the misjoinder or non-joinder of parties and the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties are concerned. It is not at all in dispute nor the High Court had any such constraint that what is applicable to the plaintiff and defendant at the trial stage can also apply in appeal, to the appellant and the respondent in so far as these two provisions in Order I, Rules 9 and 10, C.P.C. arc concerned. Not only this it is now well-settled that under Order 41, Rule 33, C.P.C. that the High Court and under Order 33, Rule 5 of the Supreme Court Rules this Court, can exercise the appellate powers in favour of all or any of the respondents or parties although such respondents or parties may not have filed any appeal or objection. See Province of West Pakistan through Secretary Revenue Department, Lahore v. Associated Hotels of India Ltd. 1973 -SCMR

367. It is clear that what can be done under Order 1, Rule 10, C.P.C, for purpose of transposition on an oral request or specific application, can also be done by the Court concerned suo motu without any application. The afore discussed considerations, with respect, were not examined by the Higb ;Court when refusing the transposition in this case. The impression, that the Collector had accepted the verdict and was not thus interested in himself filing the appeal, with respect, is also not correct. The facts and circumstances indicate otherwise and this present assumption finds support from the averments made in the application submitted by the A.O.R. of the appellants side which is, of course, supported by an unrebutted affidavit. In the light of the foregoing discussion we transpose the Collector (the respondent in these appeals) to the position of an appellant. That being so, all these appeals are held to be competent as declared by this Court in the recent judgment, dated 25th March, 1992 in Civil Appeals Nos. 242 of 1990 and 538 of 1990 which were filed by the Land Acquisition Collector. The next question arises; whether, these appeals should be decided on merits as was the course adopted in the aforenoticed two appeals; CA-242 and 538 of 1990 or they should be remanded for hearing, on merits by the High Court. The High Court had not decided these appeals on merits nor the merits were argued before us. We, therefore, in the interest of justice consider it just and proper, while allowing these appeals as held above regarding competency and transposition, remand the case to the High Court for re-hearing of the appeals with the transposition of the parties, as ordered above. They shall be deemed to be pending and shall be decided afresh on merits after affording further opportunity of hearing to the parties as now determined- There shall be no order as to costs. M.BA./C-105/S ??????????? Order accordingly.