P (PLP)

ABDUL AZIZ, C. J.‑A suit for the possession of some agricultural land was brought by Qazi Mehar Din against several persons including one Fateh Mohammad as a defendant.., The suit of the plaintiff was decreed and an appeal was preferred by the defendants to the High Court which according to the constitution of this Court was heard and decided by a single Judge. The appeal was accepted and the decree of the original Court was set aside and the suit of the plaintiff was dismissed. Plaintiff therefore presented another appeal to the High Court which is entertained as a constitutional appeal. In that appeal the name of Fateh Mohammad was omitted on the assumption that be was dead and his sons were impleaded as his legal representatives. During the pendency of that appeal it transpired that Fateh Mohammad was alive consequently an application was trade by the appellant to remove the name‑ of the legal representatives from the category of the respondents and to add the name of Fateh Mohammad to that category. This request was accepted by the Court but subject to all "just exceptions." When the appeal came up for hearing it was contended on behalf of the respondents that as the period of limitation to appeal, against Fateh Mohammad had expired, his name could be added to the category, of respondents only within the period of limitation consequently the order dated 27th of February 1949, be set aside and the appeal be dismissed. In support of his contention the learned counsel relied on A. I. R. 1944 Lah.

76. The learned counsel for the appellant asked for some time to consider the situation that had arisen on account of that mistake, and to devise means to make his appeal competent according to law. He therefore came in with an application under section 151 Civil Procedure Code and requested the Court to use its inherent powers to accept the request, of the appellant and to allow the addition of Fateh Mohammad as a respondent in the appeal. The learned counsel for the respondent contended that the addition of a respondent could be ordered only under order 41 rule '20, a provision specially meant for that purpose consequently the learned counsel for the appellant was not competent to invoke the help of the Court under its inherent powers. Mr. 13ashir Ahmad on behalf of the appellant contended that the present is not a case of the addition but of a substitution of a respondent and this could be ordered, under Order 1; rule 10 (2) section 107 Civil Procedure Code and section 151 of the same Code. Order 41, rule 20 enacts :‑

"Where it appears to the Court at the hearing that any person who was a party to a suit in the Court from whose decree the appeal, is preferred but who has not been made a party, to the appeal, is interested in the result of the appeal; the Court may adjourn the hearing to a future day to be fixed by the Court and direct that such person be made a respondent". Order 1, rule 10 (2) reads as follows :

"The Court may at any stage of the proceedings either upon or without the application of either party and on such terms as may appear to the Court to be just, order that the nacre of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added". Section iC7 (2) says:‑

. "Subject as aforesaid, the Appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Code on Courts of‑ original jurisdiction in respect of suits instituted therein". Section 151 lays down': ‑‑ "Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court". There was a conflict of opinion among the High Courts, on this question. The controversy however was set at rest by the decision of their Lordships of the Privy Council in a case reported in 6 Rangoon 29 where some persons were ,defendants in the original suits before the District judge, but in appeal to the High Court two in one and one in the other appeal were Omitted from the category of the respondents. When the matter came up before the High Court it was held by the judges that the omission of the respondents who were party to the original suit was fatal in law and could not be remedied under Order 41, rule 20 after the lapse‑of the time against them. When the matter went up to the judicial Committee it was decided in the following terms :‑‑ "As regards the rest of the case; owing to the, plaintiffs failure to make these defendants-respondents within the time limited for filing an appeal, these appeals, so far as they are concerned, are prima facie barred by limitation, and they are entitled to hold the decrees in their favour, which, as pointed out by their Lordships in a very recent case, is a substantive right of a very valuable kind of which they should not lightly be deprived. When parties are added by the Court after the institution of a suit under Order 1, rule 10 (2), section 22, Limitation Act, provides that the date when they are added is to be deemed to be the date of the institution of the suit so far as they are concerned for purposes of limitation; and the rights which they may have acquired under the Limitation Act are therefore sufficiently safeguarded. The addition of a respondent whom the appellant has not made a party to the appeal is expressly dealt with in Order 41, rule 20 on which the plaintiff relied both in the Appellate Court and before their Lordships. That rule empowers the Court to make such party a respondent when it appears, to the Court that "he is interested in the result of the' appeal". Giving these words their natural meaning‑and they cannot be : disregarded it seems impossible to say that in this case the defendants against whom these suits have been dismiss ed, and against whom the right o appeal has become barred, are interested in the result of the appeal filed by the plaintiff against the other defendants. It was for the plaintiff‑appellant, who applied to the Court to exercise its powers under this rule, to show what was the nature of their interest and this he has filed to do. Their Lordships are therefore of opinion that the appellant was right in rejecting his application under this rule. Similar question had come up before the Lahore High Court in Labhoo Ram and others v. Ram Parkash and others 1944 Lah. 76 in which the Full Bench after going into all the conflicting authorities had adopted the view which had been laid down by their Lordships of the Privy Council. The principal judgment in that appeal was written by Din Muhammad, J. who while discussing this question and considering the observation of their Lordships of the Privy Council quoted above had observed:

"It is significant that in this connection the only provisions of law that were relied upon before their Lordships were Order 41, rule 20, Order 1, rule 10 and section 107, Civil Procedure Code, No reference was made to section 151, Civil Procedure Code, or to any inherent power of the Court to add parties in such circumstances. As I read this judgment, it set its seal on the matter in controversy and ruled once for all that if once the time for filing an appeal had expired persons who were parties to the original suits but had been left out on appeal could not be added unless it was shown that they were interested in the result of the appeal in any manner. It further follows from the passage quoted above that, although Order 1, rule 10 was present to the minds of their Lordships of the Privy, Council while dealing with this aspect of the case and although section 107, Civil Procedure Code, had been brought to their Lordships notice, they did not invoke any of these provisions to enable an Appellate Court to add such respondents in appeal. In my view, therefore, all those previous authorities which laid down to the contrary were rendered obsolete by this judgment and could no longer be relied upon in support of the propositions of law enunciated therein." It is no doubt true as appears from the discussion on page 84 of the report and the observations on page 3061 Civil Procedure Code by Chitaley‑that the judgment of their Lordships of the Judicial Committee has not been invoked as laying down an inflexible rule that the Courts are not competent to exercise their discretion. This much however is true that much diversity does not exist since the decision of the Judicial Committee among the High Courts on 'one important question‑that is where the limitation has expired against the omitted respondent who was a "necessary party to the suit" to refuse him to be brought on the file. This is supported by the view that was taken in A. I. R. 1933 Mad. 806 which was considered by Din Muhammad, J. His observations which would be pertinent to be produced here make the position clear: "It is apparent that the learned judge fully realised while delivering his judgment that in a case in which a necessary party to an appeal had been omitted, the Court could not exercise any power vested in it under Order 41, rule 20, to cover the omission". This question again came up in A. I. R. 1937 All.82 Niamatullah, J. 9xpressed a definite opinion that more than one provision of the Civil Procedure Code, confer power on a Court of appeal to implead the defendants who had been left out in the original memorandum of appeal as respondents even after the expiry of the period of limitation for appeal and referred in this connection to Order 1 rule 10, section 107 and Order 41, rule 20, Civil Code Procedure. Confronted with the Privy Council decision mentioned above he observed that in his view their Lord ships never intended to hold that in no conceivable case could a Court implead a party as respondent if he was not impleaded by the appellant within limitation. Smith, J. with whom Niamatullah, J. was sitting did not agree in this exposition of the law and the case was placed before Sulaiman, C. J. whose conclusion was to the following effect :‑

"I am, therefore, of opinion that if a joint decree were passed in favour of a number of parties and an appeal were preferred against only some of the joint decree‑holders leaving out the rest and the period of limitation were to expire, then it would be too late for the 'lower Appellate Court to implead such joint decree‑holders as respondents in the appeal, in order to consider the appeal against them and pass a decree against them." He further observed while discussing the Privy Council judgment that "that ruling was a clear authority for the proposition that where a plaintiff's suit had been dismissed against some of the defendants 'and no appeal was preferred against them and the period of limitation had expired, it was not open to the Appellate Court to implead them under Order 41, rule 20". , In A. I. R. 1937 All. 243 Suleiman, C. J. expressed a similar opinion. In the same ruling 1944 Lah. 76, the learned judge while dealing with this question had observed that question came under the consideration of this Court both in 18 Lab. 136 and 18 Lah. 746 and it was held that the power conferred on a Court of appeal by Order 41, rule 20, Civil Procedure Code could be used in favour of that person alone who was interested in the result of the appeal, and that a defendant against whom the right of appeal had become barred was not a person so interested. After discussing the case law on the point the learned judge came to the conclusion in the following terms :‑-- "I am not prepared to agree with this suggestion that the power vested in an original Court under Order 1, rule 10 can be invoked by an Appellate Court by virtue of section 107 (2) Civil Procedure Code. In the first instance it is a recognized principle of law that where a special provision is made for a certain purpose, any general provision existing in a Code of law ceases to have any effect in that matter. Here it is evident that the power to add parties to an appeal in certain circums tances was specially provided for in Order 41, rule 20 Civil Procedure Code and this being so this special provision alone can be invoked in this matter and not the general provision." As already stated by me the fact, that their Lordships of the Privy Council did not apply Order 1, rule 10 to the case before them is conclusive on the point and it can no longer be argued what the Court is not empowered to do under Order 41, rule 20, it can still do under Order 1, rule 10 Civil Procedure Code. Similarly, I am disposed to think that section 151 Civil Procedure Code too cannot be invoked in such cases. As I read that section it is a residuary section and not an overriding provision of law. In other words, it comes into play only where no specific provision is made to meet an exigency that arises and cannot be relied upon to enable a Court to disregard a clear provision of law and to perform an Act which may otherwise be illegal. If once it is held that so long as the Privy Council judgment as reported in 6 Rangoon 29 holds the day, an Appellate Court has no power to add as a respondent a person who was a party to the suit and against whom the appeal is barred. Section 151 Civil Procedure Code would not enable the same Court to make the addition although prohibited otherwise. The learned counsel for the appellant feeling the, force of this decision contended that the case of his client is beyond the ambit of Order 41, rule

20. He basis his argument on the fact that this is not a case of an addition but of a substitution of a respondent and as such Order 1, 'rule JO (2) read with section 107 of the Civil Procedure Code supported by section 151 of the same Code empowers the Court to grant the request of his client. After giving my due consideration to the point in dispute I feel my inability to agree with the view of the learned counsel. To me it appears only a misconception, for instance an appellant puts in a wrong person as a respondent and omits the correct man from the category of the respondents. The period of limitation to appeal against the correct man is expired. The appellant makes an application to implead the correct man as a respondent and omits the name of the wrong person from that category. The question arises whether the correct man is not 'competent to tome and say to the Court that he has .got an indefeasible right in the property by virtue of the decree passed in his favour and the Court is not competent to favour the person who is guilty of the mistake and to deprive him of the right which the law has conferred on him. If the appellant cannot do so in that case I do not consider he can do it in the case of a respondent who is wrongly impleaded though he was the son of the right person. The right person that is the father of the wrong person has got the decree in his favour which by virtue of the lapse of the limitation cannot be impeached. In the present case Fateh Muhammad's right has become indefeasible. It may be due to the mistake indifference or the negligence of the appellant. I cannot understand why the Court should take away the right from him which the law. has created in his favour. The view of the learned counsel of the appellant therefore does not appear convincing to me. The present case therefore does not appear to me in any manner different from the case considered and decided in A. I. R. 1944 Lah.

76. The learned counsel however tried to seek help from 1942 Mad. 170 and 1948 All.

214. They relate to review petitions and consequently in my opinion have no relevancy to the present appeal. I therefore hold that the plaintiff appellant was guilty of extreme negligence in this matter and on account of this negligence had allowed the limitation to expire against Fateh Muhammad and consequently had created a position for him to say that he has no interest in the result of the appeal and as such his case is taken out of the ambit of Order 41, rule 20 ; the special provision under which he could be brought on the record as a respondent. The appeal, therefore becomes incompetent and is dismissed. As it fails on a technical question of law the parties are left to bear their own costs in a this appeal. Muhammad Rafique Mukhtar of the appellant and Ahmad Din respondent in person and Mukhtar of others are present. Announced. K.M. A./A. H. Appeal dismissed.