P L D 1975 Lahore 1167 (PLP)

Ahmed Saeed Khan for Respondent No.

1. Nemo for Respondents Nos. 2 to

14. Dates of hearing : 28th and 30th January 1975. The appellants' appeal against a decree for joint possession of property left by Chiragh Din deceased passed in favour of plaintiff‑respondent No. I was dismissed by Mr. Muhammad Amir Akbar Khan, Additional District Judge, Lahore, on the 7th January 1964, for non‑prosecution since the process fee for the summoning of defendants‑respondents Nos. 2 to 15 was not deposited by the appellants in time. An application under Order XLI, rule 19, C. P. C. for restoration of the appeal was also dismissed by the learned Additional District Judge on the 1st July 1964.

2. Hence this appeal.

3. Plaintiff‑respondent No. 1 filed a suit for joint possession of the property left by Chiragh Din deceased on the ground that being the real sister of the deceased, she was entitled to inherit from him but she had been excluded by the defendants‑appellants from the inheritance. The other respondents were impleaded as party since Chiragh Din was owner of only 1/3rd of the Khata while the other defendants were co‑owners of the balance. 3‑A. The learned trial Court found that Mst. Mehraj Bibi was a uterine sister of the deceased and as such was entitled to 1 /6th of the property left by him. He accordingly decreed the plaintiffs' suit for joint possession in 1/3rd of the property which was actually owned by Chiragh Din.

4. In appeal also the defendants were impleaded as respondents. On the 7th January 1964, it was found that only the plaintiff‑respondent was present but process fee of other respondents had not been deposited by the appellants. Their appeal was, therefore, dismissed under Order XLI, rule 18, C. P. C.

5. In the application under Order XLI, rule 19, C. P. C. various grounds were taken which included a legal point that the other respondents being only pro forma respondents, the appeal could have been dismissed only against them and not against plaintiff‑respondent No. 1.

6. The learned Additional District Judge held that the only question which required consideration in the application under Order XLI, rule 19, C. P. C. was whether there was sufficient cause for non‑payment of the process fee. He held that the ground of ignorance and illiteracy which was urged by the appellants was not sufficient ground for showing any indul gence to them. Moreover the order of deposit of process fee was made in the presence of their counsel on the 14th December 1963. The other allegation that one of the appellants was sick and hence could not comply with the order was repelled on the ground that no certificate of sickness bad been filed and that the other appellants could have complied with the Court's order. It was urged before the learned Additional District Judge that the date on which the appeal was dismissed was not a date of hearing. It was, however, held that being a date fixed for bearing of arguments on the application for production of additional evidence it could not be but a date of, hearing of the appeal. The last point that the other respondents being only pro forma respondents, the appeal could have been dismissed against them but not against the plaintiff‑respondent, was repelled on the ground that since they were parties to the appeal, no further proceedings could be taken without service of summons on them.

7. The learned counsel for the appellants urged this last point before me and argued that the dismissal of appeal could have been ordered only against those persons for whose service process fee had not been deposited and the Court ought then to have determined whether in view of the dis missal of the appeal as against the said respondents, the appeal against respondent No. 1 could proceed. He also urged that the other respondents being only pro forma the dismissal of the appeal against them could not have affected the competence or propriety of the appeal against the plaintiff- respondent.

8. In the preliminary objections urged by the learned counsel for the respondents against the competence of the appeal this point was conceded. He urged that the appeal was incompetent since the learned Additional District Judge had no jurisdiction to dismiss the appeal against respondent No. I under Order XLI, rule 18, C. P. C. and consequently, as regards her, Order XLI, rule 19, C. P. C. was not applicable. The only remedy open to the appellants was to file an appeal not against the order dated the 1st July 1964, but only against the earlier order of dismissal of the appeal for non‑prosecutions; but such appeal would now be barred by time. He also argued that since the order dated the 7th January 1964, was itself appealable a revision petition against the order would also not be competent. As such this appeal cannot be treated as a revision petition.

9. I am not impressed by this argument. The learned Additional District Judge had purported to act under Order XLI, rule 18, C. P. C. while dismissing the appeal for non‑prosecution against respondent No. 1 also. The provisions of Order XLI, rule 19, therefore, could be invoked by the appellants. For this reason the appeal against respondent No. 1 is legally competent.

10. On merits, I have already held that the point urged by the learned counsel for the appellants has been conceded by the learned counsel for respondent No. 1 raising the preliminary objection which is based on that concession. But being a concession on a point of law it may not bind res pondent No.

1. I have therefore considered this point. I am of the view that Order XLI, rule 18, C. P. C. allows dismissal of appeal in part against those respondents for whose service the process fee has not been deposited .l, Such orders were passed in A I R 1915 Cal. 786 and A I R 1930` Cal. 346.

11. There may be cases in which the dismissal of the appeal against some of the respondents may affect the continuance of appeal against others and such an appeal may cease to be properly framed or competent. In such cases the Court can pass an order of dismissal of the entire appeal If, however, the appellate Court comes to the conclusion that the respondent, against whom the appeal is liable to be dismissed under Order XLI, rule 18; C. P. C. are merely pro forma respondents and the dismissal of the appeal against them may not warrant the dismissal of appeal against other respon dents who have already been served, the appellate Court will not have any jurisdiction to dismiss the whole appeal.

12. Applying this principle to the facts of the present case, it will be seen that respondents 2 to 15 had no interest in the suit. Chiragh Din deceased was owner of 1/3rd of the joint property while these defendants own the balance 2 3rd. They were impleaded merely as pro forma defendants, although they were neither necessary nor even proper party to the suit. Tile suit could have been filed and decreed without impleading them as a party., The dismissal of the appeal against those respondents could not, therefore, affect the maintainability or competence of the appeal against respondent No.

1. This was sufficient cause for setting aside the order passed under Order XLI, rule 18, C. P. C. dismissing the appeal of the appellants against respondent No. 1.

13. I, therefore, allow this appeal with costs against respondent No. 1, allow the application under Order XLI, rule 19, C. P. C. and set aside the order of dismissal of the appeal dated the 7th January 1964, in so far as respondent No. 1 is concerned. The order refusing to restore the appeal against other respondents is, however, confirmed. S. A. H Appeal allowed.