1994 PLP 1182 (MLD)

This revision petition arises out of a suit for specific performance of the contract filed by the petitioner on 22-12-1987 in the Court of the Civil Judge, Shorekot. It was dismissed by the trial Court vide the judgment and decree, dated 8-6-1992. The appellate Court dismissed the petitioners' appeal vide the judgment and decree dated 19-10-1992.

2. The petitioners' learned counsel submits that the appellate Court acted with material irregularity in dismissing appeal on the sole ground that Mst. Jannat Mai widow of Karam Hussain Shah was not impleaded as a respondent in the appeal. He submits that Karam Shah was inadvertently shown as a respondent, although he had died and in his place his widow Mst. Jannat Mai had been impleaded as a defendant in the suit. He adds that the appellate Court took hyper technical view of the matter and arbitrarily dismissed the application to implead Mst. Jannat Mai. He further submits that even otherwise the appeal could competently proceed against Muhammad Hussain Shah, respondent No.1. In support of his contention he places reliance on the judgments in the cases of Syed Bashir Hussain Shah and another v. Administrator, Thal Bhakkar 1993 CLC 1013 and Mir Mazar v. Azim PLD 1993 SC

332. On the other hand, the respondents' learned counsel submits that Mst. Jannat Mai was a necessary party and the petitioners had shown gross negligence to implead her in the appeal. Hence, the application to implead her as a respondent, as well as the appeal were rightly dismissed by the appellate Court.

3. After hearing the learned counsel for the parties at considerable length I find that the appellants are guilty of gross negligence because they not only omitted to implead Mst. Jannat Mai in the appeal before the District Judge but they have also failed to implead her in the present revision petition. Instead, they have again impleaded Karam Shah as respondent No.2 without showing him to be a dead person. No doubt, in the case of Syed Bashir Hussain Shah it has been emphasised that the provisions of procedural law are to be liberally construed in order to advance the calls of doing substantial justice instead of killing the cause on mere fetish of technicalities but at the same time it has been held that where necessary parties were not impleaded in the appeal before the High Court despite an order to that effect passed by the Ist appellate Court, the lis can be straightaway dismissed on that ground alone. Realizing their mistake the petitioners filed C.M. No.1-C of 1993 after about six months of the institution of the civil revision for impleading Mst. Jannat Mai in the present revision. I am afraid, their prayer cannot be granted because they are guilty of gross negligence. The revision petition against Mst. Jannat Mai has also become time-barred. There is no legal justification whatsoever to accommodate the petitioners who ought to have been careful after the dismissal of their appeal due to non-impleadment of Mst. Jannat Mai. Hence, C.M. 1-C of 1993 is dismissed.

4. However, there is considerable weight in the argument of the petitioners' learned counsel that their appeal before the District Judge did not merit dismissal in toto. It could competently proceed against Muhammad Hussain (who was party to the agreement Exh.P.1 dated 30-5-1983) on the principle embodied in Order 1, Rule 9 of the C.P.C. At the trial level a suit is not to be defeated by misjoinder or non-joinder of the parties and the Court can m every suit proceed with the matter regarding the right and interests of the parties actually before it. In the present case, two persons namely, Muhammad Hussain Shah and Karam Hussain were said to have entered into an agreement to sell 8 Kanals of land in favour of the petitioners. In case the petitioners succeed in establishing their right to specific performance of the contract, they can press their claim against Muhammad Hussain Shah, respondent No.1 to the extent of his liability in the matter.

5. For the foregoing discussion, the revision petition is partly allowed, the judgment and decree of the learned District Judge is set aside and the case is sent back to him for decision of the appeal on merits as against Muhammad Hussain Shah, respondent No.1. The parties are left to bear their own costs. H.B.T./M-1457/L Order accordingly.