2010 SCMR 970 (PLP)

Laws Cited

Representation

• Muhammad Aslam Chishti, Senior Advocate Supreme Court and S.A.M. Quadri, Advocate-on-Record, for Appellants.
• Kamran Murtaza, Advocate Supreme Court for Respondents Nos. 1 to 7.
• Tariq Ali Tahir, Addl. A.-G. for Respondents Nos.8 to 10.
• Date of hearing: 25th November, 2009.
• "Mr. Muhammad Aslam Chishti, Advocate for the petitioner contended, inter alia, that merely because of respondents Nos.1 to 7's claim that they possess the required qualification or that there were vacancies, learned Tribunal had no justification to order retrospective promotion of the respondents with effect from 18-1-1992, which order is in excess of jurisdiction and against the promotion policy/ rules and that the Tribunal erred in law to treat officiating promotion as regular promotion. Reliance was placed on H.M. Saya & Co. Karachi v. Wazir Ali Industries Ltd., Karachi and another PLD 1969 SC 65, Government of Pakistan through Secretary Establishment Division v. Bashir Ahmed Khan PLD 1985 SC 309 and Muhammad Iqbal Fraooqi v. Secretary Irrigation and Power Department and others 1987 PLC (C.S.T.) 25.
• 2. Heard Mr. Muhammad Aslam Chishti, learned Senior Advocate Supreme Court on behalf of appellant, Mr. Kamran Murtaza, learned Advocate Supreme Court for respondents Nos. 1 to 7 and Mr. Tariq Ali Tahir, learned Additional Advocate-General for respondents Nos.8 to 10 at length and perused the judgment impugned carefully and scrutinized the entire record with their eminent assistance. Let we make it clear at the outset that we are not dilating upon merits of the case as the initial question to be determined at this stage would be as to whether the appellants should have been impleaded being necessary party by the respondents before learned Service Tribunal or otherwise? The case has got its own chequered history which is indicative of the fact that the controversy in question could not have been resolved completely without impleading the appellants as necessary party. It is an admitted feature of the case that as per final seniority list dated 4-10-2005 the appellants were senior to respondents No.1 to 7 by whom the appeal was preferred before learned Service Tribunal. We have also examined the question whether any fault can be attributed to the appellants for non- impleadment? Our answer would be in negative as it was for the respondents to get the appellants impleaded being necessary party but they were not arrayed as respondents before learned Service Tribunal for the reasons best known to them. We are of the considered view the appellants cannot be left without remedy especially when they were adversely affected by the judgment of learned Service Tribunal. It is well-settled by now that even "a stranger, to a suit or a proceeding is not prohibited by the Code of Civil Procedure from filing an appeal from an order passed therein. It is true that there is no express provision permitting such party to prefer an appeal against such an order. This omission, however, cannot be understood to amount to prohibition. The Court ought not to act on the principle that every procedure is to be taken as prohibited unless it is expressly provided for to give such a meaning to the omission would result in grave injustice. The Court should proceed on the principle that every procedure which furthers administration of justice is permissible even if there is no express provisions permitting the same. Section 96 of the Civil Procedure Code deals with appeals from decrees and section 104 deals with appeals from orders. These provisions do not in terms say who is entitled to prefer an appeal. The Code, however, lays down that it is the decree or the order that has to be appealed against. If the decree or order appealed from adversely affects a person he should be permitted to challenge the same in appeal even if he was not made a party to the original suit or proceedings. The English Courts have consistently followed the practice that a person who is not a party to a suit or a proceeding may prefer an appeal if he is affected by the judgment, decree or order of the trial Court provided he obtains leave from the Court of appeal. The test applied in granting leave to appeal, in such cases is that if the person who wants to prefer the appeal might properly have been a party in the suit or proceeding then he may obtain leave to appeal." Sm K. Pannalagu Ammal v. The State of Madras and others AIR 1953 'Mad. 485, An Infant 1958 1 Q B 12, J. Rustamji of Lahore v. Official Liquidator of the People's and Amritsar Bank Ltd. and another AIR 1919 Lah. 180, Indian Bank Ltd., Madras v. Saith Bansiram Jashmal Firm and another AIR 1934 Mad. 360, Al-Kisan Transport Co., Ltd. v. Regional Transport Authority, Lahore PLD 1961 Lah. 723 and H.M. Saya & Co. Wazir Ali Industries Ltd. PLD 1969 SC 65.

Headnotes / Summary

Judgment & Decree