1990 PLP 1196 (CLC)

In a suit for possession by partition of a Sarai and a house situate in Kinjal Nawab, Bannu City, by Umar Daraz Khan and 5 others against Damsaz Khan and 5 others, a preliminary decree for possession by partition of 19 marlas of the disputed property was passed on 24‑1‑1985 in favour of the plaintiffs against the defendants. An appeal against this judgment and decree to the learned District Judge, Bannu, was filed but without any success.

2. Umar Daraz Khan and 5 others plaintiffs then moved an application for grant of final decree for partition of their share by metes and bounds.

3. After a number of adjournments, Umar Ayyar Khan respondent No.3 and respondents 1, 2 and 6 attended the Court while the others were placed ex parte. On 29‑10‑1986 in pursuance of an earlier order of the trial Court under Rule 13 of Order XXVI of the Code of Civil Procedure the learned trial Court issued a Commission to an Advocate to make partition of the disputed property according to the rights as determined in the preliminary decree. Umar Ayyar Khan, respondent No.3, was recorded to have been present through his brother and attorney cited as respondent No.2. Ultimately the Local Commissioner presented a report delineating a vacant parcel of the disputed property and allocating it to the plaintiff petitioners.

3. An objection petition was filed on behalf of Umar Ayyar Khan before the trial Court challenging the validity of the inspection carried out by the Local Commissioner principally on the ground of want of notice by the Court or the Commissioner. The learned trial Court by its order dated 28‑7‑1987 held that respondent No.3 through respondent No.2 was duly represented on 29‑11‑1986. In this context the learned trial Judge observed as follows:‑ "The power of attorney must have been filed before he could be admitted as attorney of respondents 3 and

4. No doubt the power of attorney is not available on the file but the fact remains that respondent No.2 is the real brother of respondent No.3 and son of respondent No.4 who had posed himself to be the attorney and he had submitted power of attorney, otherwise he could not be admitted as attorney. But the same could be taken out from the file by nobody else than the objector himself."

4. The learned trial Judge further held that, in any case, even if it is accepted that respondent No.2 was not representing him, still there was a clear direction by the Court to the parties to be present on the spot at, 9.00 a.m. on 5‑12‑1986 and, therefore, no fresh notice was required to be issued by the Local Commissioner to the parties for their presence on the date and at the time of spot inspection. The objection raised by Umar Ayyar Khan, respondent was thus overruled and in consequence the final decree was passed in accordance with the report of the Local Commissioner.

5. The learned Additional District Judge, on the other hand, held the view that notwithstanding the correctness of the grievance of the petitioner that he had appointed no attorney, respondents 7 to 11, whose interest was not conflicting with him remained in attendance throughout and his interest was neither prejudiced nor adversely affected by his alleged absence. He observed further that since vacant site was allotted to the female respondents 2 to 6 and while the built up area was allotted to the petitioners and respondents 7 to 11, therefore, he should have no real grievance against the report proposing mode of partition. The appeal was thus dismissed by the learned Additional District Judge.

6. Umar Ayyar Khan petitioner has filed civil revision challenging the validity of the orders of the two Courts below.

7. Mr. Muhammad Iqbal Khan Kundi, Advocate appearing on behalf of the petitioner relying on: (1) Dawood Cotton Mills Limited v. Guftar Shah (P L D 1981 SC 225), (2) Umra v. Allah Yar (1986 S C M R 622) and (3) Sanaullah Butt v. Master of the Pak Mint (1987 S C M R 875) contended that petitioner's rights in property could not be affected without granting him a chance of hearing and, therefore, the impugned order of the Local Commissioner, having been passed in violation of the principle of natural justice, the orders of the two Courts below may be set aside.

8. Mr. Amanullah Khan Kala Khel, Advocate appearing for the answering respondents, on the other hand, argued that the contention of the petitioner's counsel is devoid of force, in that the impugned order of appointment of Local Commissioner was made in the presence of the petitioner or in any case in the presence of his real brother and attorney, and, therefore, even if the impugned order is set aside, no material purpose would be served in the present case. In support of his contention, he placed reliance on Mst. Bakht Bano v. Jamila Begum (P L D 1981 SC 364).

9. There is no cavil with the proposition enunciated by the august Supreme Court in the three cases cited by the learned counsel for the petitioner that the orders impugned therein were bad in law as they offended the principle of natural justice in the first mentioned two service cases and in the last mentioned case of consolidation of land holdings. Likewise, the authority of Bakht Bano relied upon by the learned counsel for the respondents is also of not much help to him.

10. In the last mentioned precedent, the contention of the learned counsel for Mst. Bakht Bano that she should have been served as required by Order XXVI, rule 18 ibid before the passing of the preliminary decree so as to have enabled her to participate in the proceedings before the Commission and, therefore, the final decree passed in her absence was a nullity, was repelled thus: "Ordinarily this submission would have had substance in it but in the instant case no material purpose will be served as the ex parte preliminary decree has not been set aside which in terms deprives her of her widow's share and renders some of the properties, which she claimed to belong to her, liable to partition and separate possession as left over by her deceased husband. It is unfortunate that there has been no adjudication of her claim but for this she is alone responsible:"

11. Mst. Bakht Bano, having been finally convicted for the murder of her husband and sentenced to death would even otherwise have been deprived of her share as widow. In the instant case no such plea of deprivation of the share of the petitioner is involved. Undoubtedly under rule 1$ Order XXVI, C.P.C. it is mandatory for the Court to direct the parties to appear before the Commissioner in person or by their agents or pleader. Any such omission on the part of the Court would ordinarily render the proceedings before the Commissioner a nullity. The direction of the Court to appear envisaged by rule 18 1s to the "parties". The word 'parties' occurring in the rule has not been defined in the Code of Civil Procedure. In the Halsbury's Laws of England `party' has been defined as under: "In relation to any proceedings, "party" includes any person who, pursuant to or by virtue of rules of Court or any other statutory provision, has been served with notice of, or has intervened in, proceedings. It may mean "person" or it may mean plaintiffs or defendants collectively. The next friend or guardian ad‑item of a person under disability is a party for the purposes of discovery of documents and interrogatories. In a representative action "part" includes a person who is represented even though he is not named on the record. A person served with originating process but: not acknowledging service is nevertheless a party." In Corpus Juris Secundum, it has been defined as follows. "With reference to judicial proceedings, the word "party" is generally used as meaning one of two opposing litigants, he or they by or against whom a suit is brought, whether at law or in equity, the plaintiff or defendant, whether natural or legal persons."

12. Nonetheless in legal parlance it is invariably taken to mean plaintiffs within the contemplation of Order I rule 1 and defendants within the purview of Order I, rule

3. This being so, the mandatory requirement of rule 18 ibid would be deemed to have been satisfied if the notice is issued to plaintiffs on the one hand and the defendants on the other. Consequently the direction to any one of the plaintiffs and defendants contained in rule 18 ibid would be tantamount to direction to all the plaintiffs and all defendants respectively, provided their interest inter se does not clash. In the instant case, it is not the case of the petitioner‑defendant that his interest was in any way, in conflict with his co defendants 1, 2 and

4. Conversely, the two written statements dated 1 2‑2‑ t 983 and 12‑3‑1983 which, inter alia, bear the thumb impression of the petitioner have been jointly filed by the petitioner and his co‑defendants 1, 2 and

4. It has also been recognised that where several persons have common interest or are subject to joint liability, notice to one of them may operate as notice to all as, for example, notice to one of the plaintiffs or defendants having common interest in the same subject‑matter. In the present case, the notice to defendants 1, 2 and 4, with whom defendant‑petitioner has common interest in the disputed property shall operate as a notice to the petitioner. Consequently the direction dated 29‑11‑1986 to defendants 1, 2 and 4 by the trial Court to appear before the Commissioner on 5‑12-1986 is sufficient compliance of rule 18 ibid. The findings of the learned trial Court as well as the learned Appellate Court, therefore, call for no interference under the revisional jurisdiction of the High Court.

13. For the foregoing reasons, there is no merit in this revision which is dismissed with costs. AA./991/P Revision dismissed