P L D 1953 Baghdad﷓ ul﷓Jadid 45 (PLP)

ABDUL RASHID, J.‑The facts of the case which have given rise to this miscellaneous appeal are as follows :‑

One Bacha Lar was originally the owner of 98 kanals and 2 marlas of land in Mauza Gulan Lar, Tehsil Ahmadpur East. Sometime in the year 1920, he became of unsound mind and in a fit of insanity he left his abode. In his absence in 1921 Allah Diwaya respondent No. 1, his first cousin and the sole heir, repre senting him as dead, got his lands mutated in his own name and on the same day he sold off a part of the property to Mithani Khan respondent No. 2 and the remaining portion thereof to the ancestors of defendants Nos. 3 to

5. Subsequently Mathani Khan sold half of his land to defendants 3 and 4 and the other half to the ancestor of defendants Nos. 7 to

9. After sometime Bacha returned to his village and on 8th March 1945, filed through his next friend Gaman the present suit for declaration and possession of the land on the ground that the mutations of his property in his absence were null and void having been brought about wrongly by Allah Diwaya in collusion with defendants Nos. 2 to 9 all of whom were in unlawful possession thereof. Defendants Nos. 2 to 9 (Mithani Khan and others) pleaded in their written statement that they were the bona fide purchasers from Allah Diwaya who was the rightful heir of Bacha and that all of them were in lawful possession of the property. The trial Court after recording the evidence of the parties decreed the claim of the plaintiff for declaration and possession of the land against all the defendants. From this decree and judgment the defendants filed an appeal in the Court of Syed Tafazzul Hussain, District Judge, Rahimyar khan against Bacha plaintiff through Gaman as his guardian ad litem. During the pendency of the appeal Bacha died and Allah Diwaya respondent became his legal representative. The lower appellate Court after hearing the arguments on both sides accepted the appeal of the defendants on 7th December 1948 and dismissed the suit on the ground that since Allah Diwaya had induced the appellants to buy the land in suit and pay for it by leading them to believe that it was his own property, he was subsequently stopped under the provisions of section 115, Evi dence Act from asserting that at the time of the sale he had no title in the property in question. Realizing this legal bar in his way, Allah Diwaya filed the second appeal from the order of the District Judge through his two minor sons Allah Wasaya and Ilahi Bakhsh and impleaded his name in the array of respondents, but subsequently he applied to the Court for being transposed on the side of the appellants. The Division Bench of the High Court which heard this appeal, held that as the appeal was filed by persons who were not parties to the decree or order of the lower appellate Court, it was no appeal in the eye of the law and was not entertainable. They also rejected the application of Allah Diwaya for transposition of his name, which they regarded as tantamount to substitution beyond the period of limitation. Upon this Allah Diwaya filed a revision petition to the High Court against the order of District Judge, dated 7th December 1948, which was dismissed on 7th November 1949, on the ground that the revision petition was not entertainable, when the aggrieved party had a separate remedy open for him by way of second appeal and had failed to adopt it. During this interval the defendants vendees had filed a dec laratory suit in respect of the property in dispute in which they impleaded Allah Diwaya as a defendant. The Sub‑Judge at Ahmadpur East dismissed this suit on 12th June 1950 on the ground that the previous litigation between the same parties about the same subject‑matter of the suit operated as res judicata under section 11, C. P. C. and estopped them from further litigation in respect of the same property. After the disposal of the second suit, Allah Diwaya applied to Syed Abdul Jamil on 9th September 1930, for review of the order of 1st Appellate Court, dated 7th December 1948, on the ground that the appeal was incompetent on account of defective representation of Bacha respondent through Gaman instead of Abdul Rasool as his guardian ad litem in the appeal. This contention prevailed with the learned District Judge, who accepted the review petition and dismissed the first appeal. From this order the defendants have filed this miscellaneous appeal to this Court. At the outset Sheikh Inayat Ali has raised several preliminary objections with respect to the competency of the appeal. His first objection is that the order under appeal though not a decree has the force of a decree and that therefore an ad valorem Court‑fee is payable on the memorandum of appeal. Mr. Mustafa Khan's contention is that the order in question was passed under O 47, R. 4 from which a miscellaneous appeal has been filed under O. 43, R. 1 (w) with a fixed Court‑fee of Rs. 4 as provided under Schedule II, Art. 11, Court Fees Act. Now a reference to the order itself shows that the learned District Judge while hearing the review application did not strictly follow the procedure as laid down in Order 47, Civil Procedure Code, according to which there are three stages in the pro ceedings for review :‑

1. Application for review and notice to the opposite‑party.

2. The hearing of the application after such notice, under Rule 4.

3. Re‑hearing the case under Rule 8 if such application is granted. In this case the learned District Judge appears to have passed no separate order, granting or admitting the application, but he simultaneously reviewed the decision of the first appellate Court. Thus he passed a single order at one and the same time by which he not only granted the review but also dealt with the case and reversed the appellate decree passed by his predecessor‑in -office. In the grounds of appeal Mr. Mustafa Khan has not only attacked the order of the learned District Judge granting the review but has also challenged this order on the merits in ground No. 7 of the memorandum of appeal, which clearly shows that he has appealed from the final order made under O. 47, R.

8. Now although there is a conflict of legal opinion on the point whether an order rejecting a memorandum of appeal is a decree, but in the present case there is no room for doubt that the order in question has the force of a decree as it has conclusively dis posed of the first appeal. We therefore agree with the learned counsel for the respondent that the appeal before us is deficiently stamped and requires extra Court‑fee according to ad valorem rates for the value of subject matter in the suit as given in section 7 (v) (e), Court Fees Act. This deficiency in the Court fee can no doubt be made up by the appellants at any stage of the proceedings with the leave of the Court under section 149, C. P. C. and such payment of the Court‑fee by the appellant shall have the same effect as if made at the time of the institu tion of the appeal. But so long as the Court does not allow the appellant to make up this deficiency, it cannot legally be regarded that a proper appeal has been filed. In a similar a case reported in A I R 1947 Lah 210 Abdul Rashid Ag. C. J. and Mr. Khosla, J, observed as follows :‑ A memorandum of appeal insufficiently stamped is a piece of paper which may developed into a proper memorandum if the Court extends time for payment of the deficit Court‑fee under section 149, C. P. C. Once the Court has exercised its powers under section 149, the memorandum of appeal would be validat ed retrospectively from the time at which it was filed. If on the other hand the Court refused to extend the time, the document presented will never become a proper memorandum of appeal. The appeal must in such a case be taken to have been filed on the day on which the insufficient Court‑fee is made up and if this takes place beyond the period of 1 imitation the appeal is liable to be dismissed. In the course of their judgment it was further remarked by the Hon'ble Judges :‑ In cases of this type the appeal is not rejected because of the insufficiency of Court‑fee. It is dismissed on the question of limitation by virtue of section6, Court Fees Act and section 3 of Limitation Act and the provisions of O. 7, R. 11, C. P. C. do trot apply to such cases. The observations of the learned Judges are applicable to the facts of the present case. The memorandum of appeal in this case was filed on 25th May, 1952, with a nominal Court‑fee of Rs. 4 only but no time was asked for nor allowed to the appellants for making up the deficiency in the Court fee with the result that it is a mere piece of paper, just as it had been filed on the first day. In these circumstances the appeal is incompetent ab initio as it was not validly presented and is not entertainable on that account. Another objection taken by the learned counsel is that there is no proper appeal before this Court, as it was filed by Mr. Mustafa Khan, Advocate without any vakalatnama in this behalf and for this reason its presentation was invalid. He further contends that the vakalatnama in his favour on the file of the Review application is of no help to him as it does not give him an express authority to file an appeal against the order in review. The reply of Mr. Mustafa Khan is that though the form of vakalatnama filed in the lower Court does not expressly authorise him to file the appeal yet the terms of the document are wide enough to cover such authority in as much as an appeal is a con tinuation of the suit and a stage in the progress of the litigation. In support of his contention he has relied en A I R 1936 Lah. 583 which fully supports his contention. In that case Agha Hyder J. observed as follows :‑ Where the power‑of‑attorney says that whatever shall be done by the agent, shall be acceptable to the executant thereof and in the light of legal proposition that an appeal is a continua tion or a stage in the progress of the suit, the special attorney can engage a pleader for prosecuting an appeal. The ruling was based on a Division Bench ruling of the Lahore High Court published in A I R 1934 Lah. 973 in which the learned Judges held that an appeal is a continuation of the suit and includes the prosecution of all the proceedings till a final decree is passed. The learned Judges in that case also attached importance to the provision in the power‑of‑attorney that what ever shall be done by the agent shall be acceptable to the executant. In the present case the vakalatnama in favour of Mustafa Khan on the file of review application is in the printed form and contains the same subject‑matter relating to the authority of pleaders as in vogue among the Bahawalpur Bar, whereby they can prosecute a case upto its last stage, although there is no specific provision therein of any authority to appear, act or plead in appeals or revisions. In this document also there are exactly the same words as mentioned by the learned Judges in the 1934 Ruling referred to above. It is provided in this document that whatever the vakil might do or perform shall be acceptable to the executants as their own act. Now O. 3, R. 4 clearly provides that every appointment of a pleader shall be filed in Court and shall be deemed to be in force until all proceedings in the suit are ended so far as the client is concerned. In these circumstances there can be no doubt that Mr. Mustafa Khan has been rightly. representing the appeal in this Court on the basis of his vakalatnama in the lower appellate Court, as is evident from the con cluding words of O, 3, R. 4 cited above. In support of his objection Mr. Inayat Ali has also drawn our attention to A I R 1936 Lah. 500 and A I R 1933 Lah.

504. The first Ruling is clearly distinguishable as the cir cumstances in that case were quite different. There a pleader had appeared on behalf of another pleader engaged by a party. It was held that the former pleader can only appear for the latter but he has no power to act on his behalf without a document executed in his favour in the manner prescribed by O. 3, R. 4, C. P. C. In the second case, Bhide J. held that a Mukhtar though appearing on a trial Court cannot file an appeal unless his power- of‑attorney clearly authorizes him to do so and that the mere general words in the power were not sufficient. In this Ruling no doubt the learned Judge has placed a narrow construc tion on the language of the document and has restricted the authority of a Mukhtar with respect to filing an appeal, he has nevertheless frankly distinguished the case of pleaders on the ground that it turns largely on the special provisions of O. 3, R. 4, C. P. C. according to which a vakalatnama once filed by a pleader remains in force until all the proceedings in the case are ended so far as the client is concerned. (See also A I R 1940 Bom. 210). This case is therefore of no help to the counsel for the respondent and his objection on this point is overruled. The last objection of the learned counsel is that since Mithani Khan respondent No. 2 died during the pendency of the appeal and his legal representative was not brought on the record, the appeal abates under the provisions of O. 22, Rr. 4 & 11, C. P. C. against the deceased respondent No. 2, and also becomes incompetent against Allah Diwaya respondent No. 1, Order 22, Rule 4 reads as follows :‑

1. When one of two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants alone, or a sole defendant or a sole surviving defen dant dies and the right to sue survives, the Court on an applica tion made in that behalf shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit. 2 ..3. Where within the time limited by the law no application is made under subsection (1) the suit shall abate as against the deceased defendant. Rule 11 runs as follows: In the application of this order to appeals, so far as may be, the word `plaintiff' shall be held to include an `appellant', the word defendant' a `respondent' and the word `suit' an `appeal'. Now the question for consideration is whether the right to appeal in the event of the death of Mithani Khan did or did not survive as against respondent No. 1 Allah Diwaya. If it survives against the surviving respondent alone, then no substitution of the legal representative of the deceased respondent is required under O. 23, R. 2 and the appeal does not abate. But if the right to appeal does not survive against the surviving respondent alone, out is survives as against the deceased respondent, then in order to proceed with the appeal his legal representative shall have to be brought on the record within the statutory period, otherwise the appeal shall abate as against the deceased respondent. In the present case as no such substitution has been made the appeal abates as against respondent No. 2 Mithani Khan. Now the further question is how far it affects the case of Allah Diwaya respondent No.

1. Mr. Mustafa Khan says that Mithani Khan is a subsequent vendor of the property and is merely a pro forma de fendant in the case. Hence he argues the omission to substitute his legal representative does not cause the appeal to abate. The plea of Shiekh Inayat Ali on the other hand is that Mithani Khan is a necessary party whose interest cannot be separated from that of the appellants. In support of this contention he has drawn our attention to several paragraphs in the pleadings of the parties in which they have in very clear terms asserted that the property in suit has been and is in the possession of all the defendants (including Mithani Khan). Mr. Mustafa Khan has made a weak attempt to ascribe this fact to the bad and careless drafting of the plaint and the written statement by the scribes thereof, but this argument of the learned counsel cannot prevail in the presence of the repeated and clear admission on behalf of defendants Nos. 2 to 9 that all of them are in possession of the subject‑matter of the suit. This clear assertion on their part leaves no room fort doubt that the interest of the appellants along with that of Mithant Khan in the property in suit is joint and indivisible. In these circumstances the partial abatement as against Mithani Khan makes it impossible for the appeal to proceed to its final stage. Now in an appeal we have also to consider the effect of partial abatement on the nature of the relief awarded by the decree appealed from. In the present case although the appeal is against the final order passed in review, but in virtual effect of this final order is that the decree passed against the appellants and Mithani Khan by the trial Court is restored and stands against all of them. Now the terms of this decree clearly indicate that this is a joint decree against all the appellants and Mithani Khan deceased, and hence the abatement of the appeal against respondent No.2 makes it impossible to proceed effectively with the hearing of this appeal as against Allah Diwaya respondent in addition to the fact that any decree passed in appeal in the absence of the legal representative of the deceased respondent would not be binding upon him. Hence the appeal becomes incompetent against res pondent No. 1 as well and abates in toto. The result is that objections Nos. 1 and 3 prevail and the appeal is dismissed with costs. Parties to be informed of the result. FAIZ MUHAMMAD, C. J.‑I concur. K. M. A. Appeal dismissed.