P L D 1995 Karachi 271 (PLP)

In evidence, the plaintiffs only examined Haji Muhammad, plaintiff No.1, defendants Nos.l and 3 examining attorney of the landlord, Haroon son of Rahriiatullah, and himself respectively. Two other witnesses namely, Muhammad Younus son of Adam and Anwar Muhammad son of Ghulam Muhammad, were also examined by the defendants Nos.l and

3. The learned Civil Judge, upon appraisal of the evidence, dismissed the suit on 29‑11‑1987. An appeal, namely, Civil Appeal No.11 of 1988, was taken by plaintiff No.l, Haji Muhammad, alone and was allowed, through an order of remand per judgment of the learned Vth Additional District Judge, Karachi (South) dated 22‑11‑1988, from which Civil Revision Applications Nos.22 of 1989 and 118 of 1989 have been filed by defendant No.3 and plaintiff No.1 respectively. ‑ I have heard the learned counsel for the parties and have also perused the record. Preponderance of the evidence seems to be that at the time of delivery of possession by defendant No.2, brother of the plaintiff, to the landlord defendant No.l, the plaintiffs were not shown conclusively to have been in physical possession of the tenant‑hold: That circumstance, however, in itself is not crucial as to the principal reliefs sought in the suit. Thus while that conclusion would adversely reflect on the recovery of goods and articles, stated to have been in the tenant‑hold at the time it was made over to the landlord, such would not be of significance relative to the remaining reliefs in view of the fact that ~ Mst. Hoor Bai, the erstwhile tenant, was the mother of the five plaintiffs as well as the defendant No.2. The tenancy, on the demise of such lady would, arguably, devolve on all her legal representatives, unless it was shown that one or more of them had relinquished their rights in the tenancy and the other or others had assumed such rights. From the material on record it is clear that the deposit of rents during the course of proceedings of the rent case and subsequently were always made by the plaintiffs. It is also likewise clear that there was a dispute between the plaintiffs and their brother, defendant No.2 in the suit, and the landlord had been time and again warned of that defendant's side‑tracking and over‑stepping the rights of the plaintiffs. Indeed there seems to be a chain of correspondence on the point right from the time when the rent case was pending. In such circumstances, it cannot be said that the legal representatives of the deceased tenants, other than the defendant No.2, had relinquished their rights in the tenancy or that defendant No.2 had become the exclusive tenant. The order of remand on such basis for determination of the rights of the parties by the learned Additional District Judge appears to be eminently just and may not call for interference in either of the revision applications. However, there are some technical pleas, which were raised in the first instance before the learned appellate Judge and have been reagitated here. The learned counsel for defendant. No.3 (current tenant and applicant in Revision Application No. 22 of 1989), Mr. M.G. Destagir, has contended that the appeal, which was preferred before the learned District Judge, was filed by plaintiff No.l alone without citing the remaining plaintiffs even as respondents and, therefore, necessary parties were omitted, rendering the appeal to be non maintainable. It is further urged that two of the defendants in the suit namely, defendant No.1 and defendant No.3, were alone impleaded in the appeal and defendant No.2, the common brother of the plaintiffs, was also not sued as respondent at the appellate stage. Like result is claimed on the basis of such non‑joinder. The appellate Court has rejected such contention largely on the ground that the Court, including one which is exercising appellate jurisdiction, is fully competent to implead all necessary parties if, for any reason, such have been omitted at the stage of preferment of the appeal. However, even there an ostensible error seems to have crept in because in spite of such a finding the learned appellate Judge, did not join the missing party(s) at the stage of pendency of the appeal. Now there are two different kinds of non‑joinders at the stages of the appeal and these revisions because none of the parties, including the defendant No.3, who also has come in revision to this Court, has joined any of the . purported omitted parties to the proceedings. Ins the first place, in so far as :common interests are concerned, the rule as to non‑joinder is contained in Order XLI, Rule 4, C.P.C., which runs thus:‑‑ "

4. One of several plaintiffs or d Pendants via‑' obtain reversal of whole decree where it proceeds on grounds nom o all‑‑‑‑Where there are more plaintiffs or more defendants than one m a suit, and the decree appealed from proceeds on any ground common to all the plaintiffs or to, all the defendants, any one of the plaintiffs or of the defendants may appeal from the whole decree, and thereupon the Appellate Court may reverse or vary the decree in favour of all the plaintiffs or defendants, as the case may be:' Accordingly, it becomes obvious that where there are more plaintiffs or more defendants than one and the decree appealed from proceeds on any ground common to all such plaintiffs or defendants any of the plaintiffs or defendants may appeal from the whole decree and thereupon the Appellate Court may reverse or vary the decree in favour of all the plaintiffs or defendants, as the case may be, irrespective of the fact whether the other or others have or have not appealed. The principles leas been. recognized in Muhammad Yaseen v. llegum Noor, PLD 1978 SC (A.I&K) 112 and P.it.T.6 v. Abdul Ghatoor PLD 1989 SC 1 to which reference has been made by Mr. Abdus Sattar Osman Memon, the learned counsel representing the plaintiff‑applicant, Haji 'Muhammad. agahme this, relicce from the other side was placed on Shale Muhammad v. Muhammad Bukhsh PLD 1972 SC 321 and Mehrajuddin v. Settlement Authorities 1982 SCMR 859, but both those judgments are distinguishable on the premise of the various enabling rules contained in the Code and besides, on the subject, the general principle, touching equitable considerations, as covered by Manager, Jummu and Kashmir State Property in Pakistan v. Khuda Yar PLD 1975 SC 678, would also be invocable. Even so, this is only so far as plaintiffs and defendants arrayed on the same side are concerned and would cover such situation alone in these proceedings where merely the plaintiff No.1 appealed from out of the several plaintiffs and likewise only the same plaintiff preferred the revision application from out of the same number. The benefit under the concept of Order XLI, Rule 4, C.P.C. thus may not be extendable to such persons) as were arrayed on the other side and in relation to whom no common interest was involved but were still not impleaded as respondent(s). This, therefore, takes us to the cognate plea in the case namely, that the defendant No.2 aforesaid was not cited as a respondent either before the appellate Court or in the revision here, a situation similarity to which may be found in the case of Mehrajuddin (supra). This aspect will have to be seen from more angles than one. Thus, in the first place, it will have to be examined whether such person was or was not a necessary party in the appeal and consequential proceedings. Next, the circumstances, if any, which resulted. in his non‑joinder, shall have to come up for consideration. Finally, the conduct of both parties in relation to the broader concept of advancement of justice shall also conceptually have to be dealt with. In so far as the joinder of the referred defendant at the appellate and revisional stages is concerned, while such defendant was obviously relevant to the proceedings because, allegedly, it was on account of collusion with him that the possession was taken over, it is not free from doubt whether he was a necessary party: A necessary party is one without whose presence no effective decree in a proceeding can be passed and in context the relevant reliefs sought in the suit have to be adequately gone into. It is obvious that the defendant in question is no longer in possession and such possession cannot be obtained from him. Likewise, the permanent injunction sought in the suit had no relevance to him because such pertained to further disposition of the tenant‑hold, with which too he would have nothing to do. Similarly, as to declaration of legal interest of the plaintiffs, it is nobody's case that defendant No.2 was claiming any exclusive right of tenancy in supersession of the rights of other legal representatives of deceased Hoor Bai. He had, avowedly, only trampled upon the rights of others. The only relevant relief, which could possibly have concerned such defendant pertained to the loss of goods and of articles, which resulted to the plaintiffs on account of the tenant‑hold having allegedly been made over by him to the landlord but that relief, as seen, does not seems to have remained available in view of the fact that the plaintiffs were not found to have been in physical possession of the premises at the time it was made over to the landlord. Resultantly, it can plausibly be said that the defendant No.2 has no longer remained an interested party, even if at same stage he was either a proper or a necessary party. The observations on the point recorded in Sarshar Ali v. Roberts Cotton Association Limited PLD 1963 SC 244 and Ghulam Muhammad v. Mehtab Beg 1993 SCMR 849, may here be referred to with advantage. Assuming, however, that the defendant No.2, remained a relevant party, necessary or proper as the case may be, on account of the relief concerning the loss of goods and articles aforesaid, the situation leads apparently to two separate consequences. First, the referred relief can be refused at the relevant stage in relation to such an absent party. Second, the Court, in the larger interest of justice, can examine the prospect of allowing the appropriate joinder at any stage of the proceedings. The last‑mentioned situation, inter alia, is fully covered by the almost successive decisions of the Supreme Court in Saeed Muhammad v. M. Sardar PLD 1989 SC 532 and P.R.T.B. v. Abdul Ghafoor PLD 1989 SC 541, in which specific references were also made to Order XL,I, Rules 4, 20 and 33, C.P.C. besides Order I, Rule 9, C.P.C. ' On the plane of justice in the case the omission to join the defendant No.2, as a respondent in the appeal, may have been occasioned due to such defendant not defending the suit and resultant misapprehension that he had no longer remained relevant to the appeal. Besides the plaintiff No.l had also claimed Benami tenancy. In the cross‑revisions he may have been left out because he was not cited in the appeal. These were errors no doubt but explainable and even curable errors. Indeed, as seen, the learned Judge of the appellate Court rightly concluded that the non‑joinder, if any, as regards defendant No.2, was curable and opted to administer that cure. What he missed was that he, in fact, did not join the omitted party at his stage of the proceedings and did not pass the appropriate order in the presence of all the parties. In the circumstances of the case, this may only have been a technicality. However, to cut the controversy short, I would allow both these revision applications and remand the case back to the appellate Court, requiring the appellant there to join defendant No.2, from the suit as a party respondent and it would thereupon be seen by the appellate Court as to on what terms a further order of remand for reconsideration of the outcome of the suit van be made to the trial Court. In view of whit has Wen said above, would be unnecessary to join the remaining four plaintiffs in the proceeding for the obvious reason that their common interests are covered by rule 4 of Order XLI, C.P.C. and further plaintiff No.1 also held a power of attorney from them, which is not shown either to have been cancelled or rescinded. Revisions allowed but parties to bear their own costs. H.B.T./A‑1526/K Revisions allowed.