2010 PLP 1210 (SCMR)

RAHMAT HUSSAIN JAFFARI, J

This direct appeal under Article 185(2)(d)(e) of the Constitution of Islamic Republic of Pakistan, 1973 has been filed to challenge the judgment dated 7-3-2003 passed by Lahore High Court, Lahore, whereby the Revision Application bearing No.2408-D of 1996 filed by the respondents/defendants was allowed on the technical ground that one of the plaintiff, namely Adalat Khan was not impleaded as party.

2. The facts relevant for the present appeal are that the appellants/plaintiffs filed a suit challenging the Mutation No.8062 entered in Revenue Record on 28-12-1986 and sanctioned on 30-12-1986 by which the suit property was transferred in the name of the defendants/ respondents. Such mutation was made on the basis of transfer made by Noor Muhammad, predecessor-in-interest of the plaintiffs, in favour of the defendants. The suit was contested by the defendants. The trial Court dismissed the suit of the plaintiffs. There were eight plaintiffs in the suit out of them seven had filed the appeal, except Adalat Khan one of the plaintiffs before the District Court. The appeal was allowed and the judgment and decree of the trial Court was set aside. Consequently the suit of the plaintiff was decreed. The two defendants Muhammad Anwar and Muhammad Ashraf preferred revision application before the High Court in which they impleaded seven plaintiffs except Adalat Khan. On 30-5-2002, the plaintiffs moved an application under Order I, Rule 10, Order XLI, Rule 20 read with section 151, C.P.C. for impleading Adalat Khan as one of the respondents in the revision application, who was not made party by the defendants. After hearing the parties not only the said application was dismissed but the revision application was allowed without discussing the merits of the case under the impugned judgment dated 7-3-2003. Hence the present appeal.

3. Learned counsel for the appellants has stated that Adalat Khan, who was one of the plaintiffs, was necessary party before the revisional Court, as without his presence, the suit could not have been properly decided because he acquired valuable right when the decree of the trial Court was set aside by the appellate Court; that the said Adalat Khan should have been joined party by the respondents, as the Appellate Court decreed the suit as prayed in the plaint; that instead of allowing the application under Order I, rule 10, Order XLI, rule 20 read with section 151, C.P.C., the High Court allowed the revision application without hearing and discussing the merits of the case on technical ground of non-impleading Adalat Khan as party in the proceedings.

4. Conversely, learned counsel for the respondents has stated that Adalat Khan had accepted the decree of trial Court, therefore, he did not prefer appeal before the District Court; that the said decree became final against Adalat Khan, hence he was not required to have been made party in the revision application and that the application under Order I, rule 10, Order XLI, rule 20 read with section 151, C.P.C. filed by the appellants was time barred, therefore, the revisional Court had rightly dismissed the said application and allowed the revision application.

5. Having heard the parties' counsel and perusing the record, we find that eight plaintiffs including Adalat Khan had filed the suit challenging the Mutation No.8062 entered in the Revenue Record on 18-12-1986 and sanctioned on 30-12-1986 with the following prayer:

The trial Court dismissed the suit of the plaintiffs but the appellate Court set aside the judgment and decree of the trial Court in the following manner:-- "that the impugned judgment and decree dated 7-1-96, passed by the trial Court are hereby set aside and the suit of the appellants/plaintiffs stands decreed as prayed leaving the parties to bear their own costs."

6. From the judgment of the appellate Court apparently it is clear that the prayer made in the plaint was allowed without any exception and the suit was decreed in terms of said prayer, under which Entry No.8062 was cancelled thereby reverting the property back to Noor Muhammad. As he had died, therefore, prima facie his legal heirs acquired the rights as per their share according to the right of inheritance. No doubt, Adalat Khan did not prefer appeal before the District Court but the dispute was common as the entry was affecting all the plaintiffs. The appellate Court allowed the prayer in toto, which can be done under Order XLI, rules 4, 20 and 33 of Code of Civil Procedure, 1908 (hereinafter referred to as 'C.P.C.) as held in the case of PRTB v. Abdul Ghafoor PLD 1989 SC

541. It appears that Adalat Khan also benefited from the same and became rightful owner in the property to the extent of his share for the simple reason that Entry No.8062 was cancelled. Thus, when the appellants filed the revision application, it was against the judgment and decree of the appellate Court by which the aforesaid prayer was decreed prima facie conferring the right of inheritance upon all the legal heirs of Noor Muhammad, including Adalat Khan, therefore, Adalat Khan became one of the necessary party as such he should have been joined as respondent in the matter but it appears that due to some bona fide mistake or misunderstanding in the mind of the appellants for the reason that the judgment of the trial Court became final against Adalat Khan, he was not joined as party which appears to be m :conception, as per decision of appellate Court.

7. In these circumstances, instead of the appellants, the respondents moved an application under Order I, Rule 10, Order XLI, Rule 20 read with section 151, C.P.C. for impleading Adalat Khan as party but by that time the said application became time-barred; hence dismissed. It is important to note that provisions of Order XLI, rule 20, Order I, rule 10 and section 151, C.P.C. are part of procedural law, therefore, they are to be liberally construed in order to advance the cause of doing substantial justice instead of gagging the cause. General law with regard to impleading the necessary party and the effect of Order I, rule 9., C.P.C. is that no suit shall be defeated by reason of mis-joinder or non-jonder of the 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 actually before it. However, under Order XLI, rule 20 read with section 151, C.P.C. there was inherit power with the appellate Court to overcome such difficulty even after the expiry of period of limitation by exercising suo motu jurisdiction and should have impleaded Adalat Khan as respondent in the matter because without his presence the revision application could not have been properly decided as his presence would have facilitated and enabled the Court to effectively and completely adjudicate upon all the questions involved in the suit so as to resolve the controversy finally. Unfortunately, the High Court after disallowing the application under Order I, rule 10, C.P.C. allowed the revision application without hearing, discussing the merits of the case and giving finding on any issue involved in the suit. This, in our view, has caused miscarriage of justice.

8. In the light of what has been discussed above, we are of the considered view that Adalat Khan should be made party, which is hereby done. Consequently, the impugned order is set aside and the matter is remanded to the High Court for decision afresh in accordance with law after providing opportunity of hearing to all concerned. The suit was filed in the year 1987; as such the High Court shall decide the matter within a period of three months from the date of receipt of the order. The appeal is allowed in the above terms. S.A.K./B-4/SC??????????????????????????????????????????????????????????????????????????????????? Appeal accepted.