2007 PLP 2754 (YLR)

SH. HAKIM ALI, J.

Asghar Ali, appellant had filed a suit for specific performance of contract allegedly .on the basis of an agreement to sell dated 8-3-1986, with regard to lands measuring 103 Kanals 4 Marlas, having been agreed to sell by Ahmed Ali for Rs. 1,65,000 out of which Rs.1,30,000 were allegedly paid as earnest money to Ahmad Ali.. In the aforesaid suit Asghar Ali had also prayed for recovery of possession and for cancellation of registered sale-deed dated 3-5-1988, which was executed by Ahmad Ali in favour of defendants Nos.2 to 4 (Muhammad Rasheed and others). The suit was contested by Ahmad Ali and all the other defendants. Agreement to sell as pleaded to be a forged document. So issues were framed and after production of evidence, the learned Civil Judge decreed the suit on 16-1-1996 in favour of Asghar Ali. Aggrieved from that judgment and decree, Ahmad Ali filed an appeal before the learned Additional District Judge, Pasroor, District Sialkot which was accepted and the impugned judgment of learned trial Court was set aside by learned Additional District Judge on 22-3-2002. Dissatisfied from that judgment and decree of the learned appellate Court, the present Regular Second Appeal has been filed in this Court.

2. At the very outset, it has been brought to the notice of this Court that this appeal is not properly constituted. Learned counsel for respondent has referred to C.M. No.476 of 2003- filed on 21-5-2003 and C.M. No.2 of 2003 filed on 7-7-2003. As per Learned counsel for the appellant, two legal representatives of Ahmad Ali, deceased, namely, Mst. Noor Begum and Mst. Naseem Akhtar and the other party, Muhammad Sarwar son of Ghulam Qadir were left over from the array of respondents inadvertently, therefore; through these two petitions, impleadment of these persons have been prayed for. According to the learned counsel for the appellant, these persons being necessary party" and having been left over inadvertently from the array of respondents may be allowed to be impleaded. Learned counsel appearing or1 behalf of respondents has resisted .the. acceptance of these applications by stating that Ahmad Ali had expired during the pendency of the appeal filed before the learned Additional District Judge in the year 1996 and his legal representatives were brought on the record during that appeal, therefore, appellant was aware of this tact, while for Muhammad Sarwar, learned counsel for .respondents .submits that the non-impleadment of legal heirs in the array of respondents is not bayed on any sound reasons, therefore, the appeal may be dismissed due to non?impleadment of necessary parties in the appeal. ???????????

3. On the other hand learned counsel for the appellant submits that according to PLD 1975 Lahore 1016 (Muhammad Sher v. Muhammad Khan) these persons can be impleaded as a party in the appeal.

4. I have considered the arguments of both the learned counsels acid have perused the record.

5. It is an admitted fact that Ahmad Ali .had .expired during the pendency if the appeal filed before the learned Additional District Judge and according to the record, the legal representatives of Ahmad Ali were brought on the record. Therefore, the legal representatives of Ahmad Ali, deceased were necessary party to be impleaded into the memo of appeal before this Court. In the same manner, Muhammad Sarwar, who was purchaser was also a necessary party to the instant appeal. It may be noted that this appeal was filed on 26-6-2002 against the judgment and decree of learned appellate Court passed on 22-3-2002. The reason of inadvertence cannot be considered to be a good ground when the facts explaining the mistake have displayed it otherwise. The non-impleadment of legal representatives of Ahmad Ali and Muhammad Sarwar hall shown the carelessness attitude of the appellant, who was too much negligent in the process of constitution and preparation of memorandum of appeal that he left over not only one respondent but three respondents at a time. It is pertinent to point out that when application C.M. No.476 of 2003 was moved on 21-5-2003 for impleament of legal representatives of Ahmad Ali, the appellant should have been vigilant to file application for the impleadment of Muhammad Sarwar also, the other respondent who was left" over from the array of respondents. There is no explanation as to why prayer at that stage, was not made for the impleadment of Muhammad Sarwar at the time of filling of C.M. No.476 of 2003 filed on 21-5-2003 and why further period was allowed to pass? Why two and a half months were allowed to lapse from the filing of the aforesaid petition till the filing of second C.M. No. 2/C of 2003 filed on 7-7-2003. When these petitions were moved, admittedly the limitation had expired for the filing of appeal. Accordingly to PLD 1982 Supreme Court 46 (Mst. Maqbool Begum and others v. Gullan and others) this appeal cannot be held to be properly constituted appeal as it had missed the necessary parties to it. According to PLD 1975 Lahore 1016 (Muhammad Sher v. Muhammad Khan), the mistake had cropped up on the basis of the decree, which had not included therein the name of the legal representatives of a deceased. Therefore, the aforementioned judgment is not applicable to the facts and circumstances of the case whereas the present case is a case of clear neglect, carelessness and not a bona fide act of appellant himself, so keeping in view the facts and circumstances of the case, this appeal is dismissed as having not been properly constituted, by dismissing both the C.Ms. M.H./A-165/L???????????????????????? ??????????????????????????????????????????????????????????? Appeal dismissed.