P L D 1972 Supreme Court 307 (PLP)

The appellants came up to the High Court on appeal but this appeal was later transferred to the District Judge In view of the provisions of the West Pakistan Civil Courts Ordinance. 1962. During the pendency of the appeal In the Court of the District Judge, one of the appellants, namely Najaba, died on the 22nd of September 1961, but his legal representatives were not brought on the record. The respondent therefore, on the 30th of November 1962, applied to have the appeal declared abated. The learned Additional District Judge held that, as all the twenty-five defendants (now appellants) in the suit were in joint possession of the house, each one of them was a necessary party, and the death of one of them would result in the appeal being not properly constituted. The appeal had thus abated as a whole and had to be dismissed so such. The appellants then came up on second appeal to the High Court which was admitted on the 3rd of August 1965, on two grounds, namely :

(1) as to whether the appeal before the District Judge had abated to toto, and (2) whether the civil Courts had jurisdiction to entertain the suit. During the pendency of the second appeal in the High Court, another appellant, namely, Sondoo, died on the 19th of December 1967. The appellants, again, did not take any step in time, but, on the 17th of May 1968, made an application for setting aside the abatement and bringing the heirs and legal representatives of Sondoo on the record along with an application for condona tion of delay. The High Court found that the reasons advanced for the condonation of the delay were not sufficient, and that the decree being indivisible, the appeal had abated to toto. The appeal was accordingly dismissed on the 15th of April 1969. Leave was granted In this case on the 8th of July 1969, to consider whether the provisions of rule 4, Order XLI of the Civil Procedure Code should have been applied in this case and the right to prosecute the appeal held to have survived to the remaining appellants after the death of any one of them. Leave was also granted to consider whether the Courts below were right In taking the view that the decree was indivisible and as to whether each of the appellants could be said to have held separate possession of his own portion in the house in dispute. The sole respondent in this appeal died during the pendency of the appeal in this Court on the 10th of August 1970, and an application was made for the substitution of his heirs; but as none of them has appeared in this appeal, it has been heard ex parte against the respondents. Rule 4, Order XLI of the Civil Procedure Code is in these terms :

"Where there are more plaintiffs or more defendants than one in 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." This is merely an enabling provision which confers a privilege on one of the plaintiffs or defendants to prefer an appeal from a decree which proceeds on any ground common to all the plaintiffs or to all the defendants. It nowhere lays down that any person, who is a necessary party to the appeal, can be excluded and still the appeal will be properly constituted. The provisions of this rule do not also exclude the operation of the provisions of Order XXII of the Code. They would apply only where the provisions of Order XXII pose no difficulty in the prosecution of the appeal. In order to exercise the powers given by this rule, all persons to be affected by the order must be before a Court. It would be totally wrong to hold that an Appellate Court can proceed to hear an appeal, even if the necessary parties are not before it. The provisions of this rule do not, therefore, indicate that any abatement that occurs on the death of one of the appellants can be ignored or overlooked or even set aside. It would be wholly wrong to think that the provisions of rule 4 of Order XLI of the Civil Procedure Code nullify the provisions of rules 3 and 4 of Order XXII, or that they prevent an appeal from abatement If It otherwise stands abated. If we were to read the provisions of rule 4 of Order XLI in the manner in which the learned counsel appearing for the appellants wants us to do, then it would render completely nugatory the other provisions of the Code relating to abatement of appeals. This could not have been the intention of the framers of the above-mentioned rule. As was rightly pointed out by a Full Bench of the Lahore High Court in the case of Manak v. Ahmad Ali (A I R 1946 Lah. 399) the provisions of rule 4 of Order XLI of the Code cannot be applied where the non-appealing plaintiff or defendant, as the case may be, has not been impleaded in the appeal at all and is not before the appellate Court. The same view was taken earlier by a Full Bench of the Patna High Court in the case of Rampal Sahu v. Babu Satdeo Jha (A I R 1940 Pat. 346) and has since been followed by the Courts in Pakistan vide Iman Ali Malsana v. Furkun Ali Mondal (P L D 1960 Darns 3) and Allah Dad v. Nawab (P L D 1960 Lab. 277). We approve the same. To determine the question of the abatement of the appeal, one has necessarily to consider whether the decree was indivisible or not. We had, therefore, called for the records of the trial Court and having examined the pleadings in this case are satisfied that the case as made out there was that the defendants (now appellants) were jointly occupying a portion of the premises. There was no case made out either in the plaint or in the written statement of separate occupation of separate parts of the premises in dispute. In the circumstances, we are satisfied that the Courts below were right in taking the view that the decree was indivisible and each one of the appellants was a necessary party to the appeal and in the absence of anyone of them the decree could not be varied or altered. The death of one such party without substitution of his heirs was, therefore, rightly held to have resulted in the total abatement of the appeal. In any event, it appears to us that the question of abatement has now become purely academic, for, the declaration granted by the Custodian that the property in dispute is not an evacuee property has become final and cannot be set aside or reversed as even the Custodian has now lost the power of review. No useful purpose would be served, therefore, if this appeal were to be allowed and sent back for re-hearing. Learned counsel has sought to contend that, with regard to some other properties claimed by the respondent through the said Rana Mal, litigations are still pending and different views have been taken; but, even assuming that this is so, it would not help the appellants, so far as the property in dispute is concerned. It is no longer open to them to agitate that this property is an evacuee property after the declaration granted by the Custodian which has now become final. Learned counsel also sought to contend that the declaration was obtained by practising a fraud on the Custodian. If that is so, then the appellants should seek other remedies to have the declaration set aside. In these proceedings, the civil Courts cannot declare the property to be non-evacuee. For these reasons, we are of the view that this appeal must fail and is accordingly dismissed; but since the respondent has not appeared there will be no order as to costs. K. B. A. Appeal dismissed.