1983 PLP 1160 (CLC)

(f) Civil Procedure Code (V of 1908)‑ ‑‑ S. 96 read with O. I, r. 10 & O. XLI, r. 20‑Fatal Accidents Act (XIII of 1855), S. 1‑‑Appeal‑Co‑judgment‑debtor not made party by appellant‑ High Court declining to exercise discretion to implead him as party to adjudicate appeal on merits‑Appeal not properly constituted on account of absence of co‑judgment‑debtor necessary party from array of respondents Appeal, held, incompetent and dismissed. Syed Iqbal Haider Zaidl for Appellant. Mahmoodul Hassan for Respondents. Date of hearing: 15th May, 1983. JUD&MBNT GHAZANFAR AU GONDAL, J.‑This is a regular first appeal filed by the Punjab Road‑ Transport Board, against the judgment and decree of Civil Judge, 1st Class, Rawalpindi dated 12th June, 1982 passed in favour of Tanvir Ahmad and 4 others, respondents Nos. 1 to 5, granting them dama ges in the sum of Rs. 1,50,000 against the appellant and Nazar Muhammad driver jointly and severally.

2. The brief facts of the case are that on 19th October, 1977 bus No. RID 6345 owned by the Punjab Road Transport Board, which was being driven by Nazar Muhammad driver, struck against volkswagon car No. LEH 2774 driven by Dr. Haji Ahmad Janjua, deceased, causing his death. On 16th October. 1978. Tanvir Ahmad etc., respondents Nos. 1 to 5, successors and dependants of deceased Dr. Haji Ahmad Janjua, instituted a suit against the appellant and said Nazar Muhammad for damages to the tune of Rs. 1,50,000 on account of their joint liability in tort‑under the provisions of Fatal Accidents Act; 1885, for the death of Dr. Haji Ahmad Janjua, deceased, caused as a result of the rash and neg ligent driving of said Nazar Muhammad who was impleaded as defendant No. 2 in the suit. On. 12th June, 1982, the said suit was decreed for Rs. 1,50,000 in favour, of respondents Nos. 1 to 5 against the appellant and said Nazar Muhammad‑ jointly and severally.

3. The bus driver Nazar Muhammad did not file any appeal against the said decree. However, the Punjab Road 'Transport Bdard, appellant, preferred the, present appeal against .the said judgment and decree in this Court on 4th September, 1982 praying therein that the impugned judgment and decree be set aside and suit of respondents be dismissed with costs. Nazar Muhammad, the bus driver, who was defendant No. 2 in the suit and against whom the judgment and decree had been passed by the trial Judge jointly and severally, was not impleaded as party in this appeal. .

4. Learned counsel for the appellant had filed on 7th May, 1983 an application C. M. 340/C‑83 under Order XLI, rule 20, C. P. C. for imp leading Nazar Muhammad, driver as respondent in this appeal on the ground that while filing the appeal the said driver who is interested in the result of the appeal, was inadvertently omitted It is claimed in the application that the impleading of Nazar Muhammad will not pre judice the case of the respondents as no relief has been claimed from Nazar Muhammad. It is further contended therein that limitation does not stand in the way of impleading him as a party because no relief has been claimed by the appellant against Nazar Muhammad driver. This application has been controverted by the learned counsel for the respon dent in its reply dated 12th May, 1983 on the ground that decree impug ned in this appeal being single indivisable decree, Nazar Muhammad was a necessary party in the appeal, who ought to have been impleaded as a party within limitation, and the appeal which was improperly constituted was incompetent and was liable to be dismissed. It was further submitted therein that failure of\the appellant Punjab Road Transport Board to implead co‑defendant rendered the appeal incompetent on the principle that inconsistent and contradictory decrees would come into existence regarding the same subject‑matter and as a result of same litigation; and permission to implead Nazar Muhammad as a party at this stage, when limitation for appeal had expired, would result in irreparable loss to the respondents who had acquired a valuable right and that question of limi tation does arise irrespective of the fact whether any relief is claimed or not against the driver.

6. We have heard the learned counsel for the parties. In his oral address, the learned counsel for the appellant has submitted in addition that Nazar Muhammad was not a necessary party in the appeal as no relief had been claimed from him and appeal was properly constituted even in his absence from the record.

7. We have given our anxious thought to the arguments of the learn ed counsel for the parties. We would first like to deal with the submis sion of the learned counsel for the appellant that Nazar Muhammad ‑Driver is not a necessary party in this appeal. It is hardly possible to agree with they submission of the learned counsel for the appellant the when no relief is sought from a person in an appeal, he is not a necessary party. In our opinion, existence of a prayer for relief against a person, is not the only criterion for judging as to whether such a person is a necessary party or not. The true test laid down in. Order 1, rule 10, C.P.C, is that a necessary parts is a person who ought to be joined as a party or, as explained 'in. the precedents, a person in whose absence no effective decree can be passed: No relief may be sought from a person, yet he may be affected by the decree to be passed in appeal. When a person is likely to be affected by relief ought in appeal, he is a person in whose absence no effective decree can be passed and must be considered to be a neces sary party in the appeal. The impugned decree in this case held the appellant and Nazar Muhammad severally and jointly liable for the decretal amount. As already shown, in this appeal by the appellant, the prayer is for setting aside the said decree with costs or in other words for setting aside of the said decree in toto both against the appellant as well as Nazar Muhammad driver. However, such a relief can hardly be granted now, as Nazar Muhammad co‑judgment‑debtor is not a part in this appeal and he himself has not filed any appeal and has thus accepted the decree and allowed it to achieve finality as against hits. There fore, the only relief which can be considered feasible to this appeal is that the said decree be set aside as against the appellant Punjab Road Trans port Board alone. However, in case, the decree can be and is set aside against the appellant alone, the entire burden of the payment of the decretal amount would fall on the shoulders of Nazar Muhammad alone and he would be deprived of the facility of getting the decree satisfied from the funds of the appellant in part or whole and thus escaping from the difficult situation. Nazar Muhammad is, therefore, definitely a per son who is likely to be affected by grant of said relief in appeal and is thus a necessary party in this appeal. It was held in Shah Muhammad and others v. Muhammad Baksh (PLD 1972SC321) that joint decree of possession passed against many defendants was indivisible and each one of the defendants‑judgment‑debtors was a necessary party to the appeal and in the absence of any one of them the decree could not be varied or altered. 'In our view, therefore, in the present appeal against the joint and indivisible decree passed against the appellant and Nazar Muhammad, the said co -judgment‑debtor Nazar Muhammad was a necessary party.

8. As a corrollary to the above, we think the present appeals which has been filed without impleading Nazar Muhammad, a necessary `party, Jill was not properly constituted and is incompetent in the eye of law and liable to be dismissed on that ground.

9. As for the question whether under Order XLI, rule 20, C. P. C. Nazar Muhammad should at the instance of the appellant be impleaded as a respondent in this appeal, we find that the appellant has given no valid ground in his said application for omitting the name of Nazar Muhammad driver from the array of the parties. The only reason advanced in the application is that his name was inadvertently omitted. However, no detail of the inadvertence or the circumstances resulting in the alleged inadvertence or omission has been given to enable this Court to judge the correctness or otherwise of the said averment or he bona fides of the appellant in making the same. Exercise of discretionary power under Order XLI, rule 20, C: P. C. favour of an applicant is not automatic and cannot be had just for the asking. It is dependent upon existence of some valid and reasonable cause. None has been shown in this case. On the other hand, there are indications to the contrary which disentitle the appellant from benefit of exercise of discretion under the said provision in his favour. In the original suit, the primary liability in tort was laid on the driver Nazar Muhammad while claim against the appellant Punjab Road Transport Board was made on the ground of its liability in tort as employer of Nazar Muhammad. The prayer in the said suit was clearly for grant of a seve ral and joint decree for the suit sum against the appellant and Nazar Muhammad. The decree finally granted was for joint liability of the appellant as well 'as Nazar Muhammad as well as their several liability. The certified copy of the decree sheet filed alongwith this appeal clearly showed the name of Nazar Muhammad as defendant No.

2. These facts were staring in the face of the appellant and his counsel and they could not have left out Nazar Muhammad except on account of extreme negli gence on their part. Indeed, the emphasis of the learned counsel on the point that no relief had been claimed by the appellant in the present appeal against Nazar Muhammad gives rise to the impression that the exclusion of the name of Nazar Muhammad from the array of the parties to the appeal was not inadvertent but deliberate and appears to show that name of Nazar Muhammad was intentionally left out on the ground that no relief was being sought from him., The learned counsel does not appear to have checked up as to whether his said view was consistent with the legal position or not. If he had exercised a little bit of deligence and made a little search, he would have found that it was necessary for pro per constitution of the appeal to join Nazar Muhammad as an appellant or to implead him as a respondent. We are, therefore, of the considered opinion that Nazar Muhammad driver was not cited as a party in the appeal on account of gross negligence on the part of the appellant or his counsel. The law does not brook the acceptance of a petition under Order XLI, rule 20, C. P. C. made by a party who is guilty of gross negli gence. It was held in case of Muhammad Jamil v. Chairman, Industrial Court West Pakistan and another (P L D.1964 S C 559) that under Order XLI, rule 20, C.P.C. the court is no doubt empowered in a proper case to add a necessary party as a respondent in an appeal. but the power to take action under the said provision is discretionary and should not be exercised in the case of extreme neglect. Another strong reason which impels us to reject this application is that the discretion under Order XLI, rule 20, C. P. C. can not be exercised when the respondent decree holder has obtained a valu able right as against the person sought to be impleaded in appeal on account of decree of lower court having become res judicata against such person. Reference in this respect is invited to case of Ramchand Dhaliram v. Badri Nath and others (A I R 1935 Pesh. 106), where the said dictum of law was laid down. In case of Mehtab Beg and 2 others v. Ghulam Muhammad and others (P L D 1975 Lah, 580) it p was held that a person in whose favour lower court has passed a decree against which appeal is not filed within the period of limitation acquires a substantive right of a valuable kind and discretion under Order XLI, rule 20, C. P. C. should not be exercised to disturb such a right. Nazar Muhammad, whose name had been omitted, had not filed any appeal against the said decree which, therefore, had achieved finality as against him and therefore, respondents Nos. 1 to 5 had acquired a valuable right against said Nazar Muhammad. Therefore, discretion under Order XLI, rule 20, cannot be exercised against respondents Nos. 1 to

5. In view of the above, we do not feel inclined to accept this application and accordingly dismiss the same.

10. Faced with this situation, learned counsel for the appellant has placed reliance on Order XLI, rules 4 and 33, C. P. C. and has submitted that under these provisions this Court sitting in appellate jurisdiction has power to adjudicate the matter involved in this appeal even though no appeal has been filed by Nazar Muhammad and has urged that this Court should exercise power under Order XLI, rules 4 and 33, C. P. C. and pro ceed to adjudicate the appeal on merits. We are afraid we cannot accept this contention too. For the exercise of discretionary power under Order XLI, rules 4 and 33, the necessary parties must be before the court before it can make any order under this rule. Reference in this connection is invited to Nanak deceased v. Ahmad Ali (A I R 1946 Lah. 399) and Allah Dad and others v. Nawab and others (P L D 1960 Lah. 277.) and Shah Muhammad and others v. Muhamma Baksh (P L D 1972 S C 321).

11. Since Nazar Muhammad was not made a party and we have declined in exercise of our jurisdiction to implead him as a party, we can not exercise the discretion under Order XL1, rules 4 and

33. C. P. C. and adjudicate the appeal on merits.

12. The appeal having not been properly constituted on account o absence of Nazar Muhammad, a necessary party from array of respon dents, is incompetent. It is accordingly dismissed with costs. M. Y, H, Appeal dismissed.