1998 PLP 726 (CLC)

2. Facts of the case are that Hamidullah Jan (plaintiff) had sued Zamani etc. (defendants) in the Court of Senior Civil Judge, Bannu for a declaration to the effect that he and pro forma defendants were owners of the suit property fully described in heading of the plaint and that Mutation No. 19996 attested on 29‑6‑1978 in respect thereof was wrong, illegal, mala fide, fraudulent and ineffective upon his rights and pro forma defendants liable to cancellation. Alongwith the plaint, an application for temporary injunction against defendants Nos. 1 to 6 therein restraining them from interference in the suit property was also filed.

3. After recording evidence of the parties pro and contra, plaintiff's suit was decreed on 27‑6‑1995. Feeling aggrieved, the defendants went in appeal to the Court of District Judge, Bannu which was entrusted to the learned Additional District Judge, Bannu for disposal.

4. During pendency of the appeal before the learned Additional District Judge, Bannu, Noor Ehsan, special attorney of one Mst. Sabir Jana (petitioner herein), filed an application there on 2‑10‑1995 for her impleadment as respondent in the appeal on the ground that she had become a co‑sharer in the suit property vide agreement‑deed, dated 23‑11‑1993 and was, therefore, a necessary party. Though it was mentioned in the said application that copy of the agreement‑deed referred above was annexed thereto but since it was not attached with the same, therefore, the application for her impleadment as respondent to the appeal was rejected. Thereafter, she filed a review petition on the ground that as by that time she had annexed the requisite copy of agreement‑deed, dated 23‑11‑1993 with the application, as such, she be impleaded as a party to the appeal. The said review petition was also dismissed vide order noted above and hence the instant revision petition for the said purpose.

5. Learned counsel for the petitioner vehemently argued that the impugned orders of the lower Appellate Court are illegal as the petitioner was not afforded with an opportunity to produce and bring on record the copy of agreement‑deed dated 23‑11‑1991 and that by not impleading the petitioner as party to the appear, being a necessary one and interested in result of the appeal, the Court below has exercised jurisdiction illegally and with material irregularity.

6. Learned counsel for the respondents, however, opposed the aforesaid contentions on variety of grounds and supported the impugned conclusion.

7. I have given due consideration to their respective arguments and thoroughly examined record of the case.

8. Order 47, sub‑rule (1), C.P.C., deals with the application for review of judgment which provides that the person considering himself aggrieved by a decree of order from which an appeal is allowed, but from which no appeal has been preferred, or by a decree or order from which no appeal is allowed, or from the discovery of new and important matter or evidence which after the exercise of due diligence was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order.

9. Perusal of the petitioner's application for her impleadment as respondent to the appeal reveals that due to purchase to a portion of the disputed property through an agreement‑deed, dated 23‑11‑1993 she had sought her impleadment but having failed to attach copy of the said deed therewith, her prayer was rejected. She is the wife of Sher Zaman alias Zamani who is contesting the suit throughout and is respondent No‑2 herein. Her 'special attorney was also attorney in the Appellate Court and is the grandson of respondent No.5 as also of the petitioner. Muhammad Hanif and Sahib Jan are the sons of respondents Nos. 6 and 3 respectively are witnesses to the alleged agreement‑deed who are contesting defendants. The challenged Mutation No.19996 attested on 29‑6‑1978 was held by the Trial Court as bogus, fake having no bearing on the rights of the plaintiff and in consequence a criminal case stood registered against Tehsildar and Girdawar, respondents Nos.10 and 11 herein, but were acquitted. The deed in question is an unregistered and has no legal sanctity. Respondents Nos. 40 to 44 who claimed to have sell the disputed land were served at the Trial Court but not turned up and were placed ex parte who should have come to the Court for setting aside the said ex pane decree and not the petitioner for her impleadment who had no legal status as yet.

10. There is yet another strange aspect of the case. The deed in question was written on 23‑11‑1991, but the petitioner made its basis in November, 1995 and remained mum over it for four years. Dispute between the contesting parties remained pending at the Trial Court for a lengthy period of three years but the petitioner, for reasons best known to her, remained silent about her being necessary party due to the agreement‑deed in question.

11. The upshot of the above discussion is that the learned lower Appellate Court has rightly dismissed both the application for her impleadment as respondent in the appeal and the review filed thereagainst.

12. The revision petition is devoid of any force and is hereby dismissed. A.A./2215/P Revision dismissed.