1980 PLP 1093 (CLC)

S. Rifaqat Ali Shah for Petitioner. Q. Sabahuddin for Respondents: Date of hearing : 2nd February, 1980. The petitioner Hazrat Shah instituted a suit in the Court of Civil Judge claiming that he was entitled to receive the amount of offerings on the shrine situated in field No. 197 in village Prang for 180 days in a year. The learned trial Judge declared him to be entitled to the amount of offerings for 78 days only. From this order an appeal was taken to the Additional District Judge, Peshawar by the pre3ent petitioner but it was found that in appeal two persons, namely, Mst. Shaheen and Mst. Basri, minors, who were defendants in the original suit, had not been made par ties. The omission was brought to the notice of the learned Additional District Judge by counsel appearing for the contesting respondents. The petitioner, when confronted with this omission, made an application for impleading these minors as parties to the appeal but the learned Additional District Judge dismissed the appeal on the ground that the said two persons who were necessary parties to the dispute had not been impleaded as respondents within the period of limitation and as such the appeal could not proceed. In doing so he referred ,to three cases in his order but the citation in respect of the two cases is incomplete and they could not, therefore, be got hold of. The third case referred to by the learned Judge is reported as P L D 1954 Pesh. 52 wherein it was held that when a necessary party, who was defendant in the suit, is not impleaded in the appeal, the appeal is liable to be dismissed. 2. In the present petition the learned counsel appearing for the petitioner has contended that the omission to include the two persons was the result of wrong copy of judgment supplied by the Copying Department wherein the names of the said two persons were not given. On going through the record of the appellate Court I find that the contention is correct. It was thus a bona fade mistake on the part of the petitioner which resulted in the omission that proved fatal to his appeal. 3. Rule 20 of Order XLI, C. P. C, provides that when a party to the suit in the Court from whose decree the appeal is preferred is not made a party to the appeal and such party is "interested in the result of the appeal", the appellate Court may direct that such party be made a respondent. The learned counsel for the petitioner contends that in spite of the appli cation having been made in this respect the learned Additional District Judge made no order or direction for impleading the two persons as par ties and as such committed an error of procedure affecting the merits of the case. . 4, 'the learned counsel appearing for the respondent, on the other had, contended that the appeal against the two persons, referred to above, had become time barred and, therefore, the learned Additional District Judge rightly refused to implead them as parties when an objection was raised in this respect. 5. There are several authorities on the been held that rule ZO ibid would not be applicable in a case whore the appeal against a party whose name is omitted becomes barred by time because in such a case the said party would not be "interested in the result of the appeal", to attract the provision of the aforesaid rule. Dealing with this question the Privy 'Council in the case of Chockalingam Chetty V. Sheetha Ache (1) had held that the defendant against whom a suit had been dismissed and against whom the right of appeal becomes time barred does not remain an interested .person in the result of appeal filed by the plaintiff against the other defendants and that such persons could not be brought on record under rule 20 ibid. This decision had come up for discussion in several other cases and the consensus is that the rule laid down by tare Privy Council is not inflexible and that a party against whom the time for filing an appeal has expired could be impleaded as respondent in appropriate cases. The precise question was, however, dealt in detail in the case of Notified Area Committee v. Gumband Ram (2). In this case the three Judges of the Court held that if a party to the original proceedings is not impleaded in appeal on account of a bona fide and honest mistake on the part of the appellant, the appellate Court has ample power under rule 20 of Order XLI C. P. C. to allow the mistake to be rectified and the party to be added. In this case the Privy Council's decision in the case of Chockalingam Chetty v. Sheetha Ache was also discussed and it was observed that the said case could not at any rate be taken to be an au thority for the proposition that the party left out in appeal on account of bona fide mistake could not be impleaded as party by the appellate Court specially when the error is the result of supplying an erroneous copy either of the decree or of the judgment. In the present case, as already held the mistake of the petitioner in failing to implead the two persons mentioned above as parties resulted from the erroneous copy of the judgment furnished to him and it was, therefore, a bona fide mistake when in appeal he omitted to implead the two persons as respondents. 6. In view of the above facts I am of the opinion that the learned Additional District Judge should have invoked the provisions of rule 2 of Order XLI, C.P.C. and should have condoned the delay and should have allowed the petitioner to implead the two persons as respondents. The present petition is, therefore, accepted and the judgment and decree of the Additional District Judge are set aside. The matter is remitted back to him with the direction that the two persons, referred to above,. be made parties to the appeal and the appeal be decided on its own merits. The present petitioner, who was the appellant before the learned Additional District Judge, should pay a cost of Rs. 200 before he is permitted to add to the said two persons as parties. M. Y. M. Petition accepted.