2014 PLP 107 (CLD)

AMIN-UD-DIN KHAN, J.

This application under Order I, Rule 10 read with Order XLI, Rule 20 of the C.P.C. has been filed for permission to implead Muhammad Ashiq deceased through legal heirs and Mst. Asia Bibi, defendants, as respondents in the appeal. Reply has been filed by the respondent and the application has been contested.

2. Brief facts of the case are that the suit for recovery was filed in the Banking Court-I, Multan, by the respondent-bank against the appellants as well as Muhammad Ashiq and Mst. Asia Bibi. The suit was decreed vide judgment and decree dated 14-4-2008. Appellants preferred an appeal before this Court on 10-6-2008, which was admitted to regular hearing on 11-9-2008.

3. Learned counsel for the applicants submits that the persons named in the application are necessary party and due to over-sight could not be impleaded as party to the appeal and now can be permitted to be impleaded as party as respondents in the appeal and states that this Court has vast powers to allow the application. Relies on Chan Zeb and 9 others v. Gul Zaman and 5 others (1998 CLC 1857) and Said Muhammad and others v. M. Sardar and others (PLD 1989 SC 532) and prays for acceptance of the application.

4. On the other hand learned counsel representing the respondent has argued that the application cannot be allowed at this stage when the same has been filed after about five years of the filing of the appeal and further that even no application for condonation of delay has been filed. Further that the decree is not divisible, therefore, the application as well as appeal are also liable to be dismissed on this score. Relies upon Shoaib Ahmed Faridi v. United Bank Limited (2007 CLD 835) and further submits that the judgment, i.e. Said Muhammad and others v. M. Sardar and others (PLD 1989 SC 532) relied upon by the learned counsel for the appellants is not applicable to the facts of this case.

5. We have heard the learned counsel for the parties and gone through the judgments cited before us. As the decree is not divisible the party left out from the array of the appellants or respondent at the time of filing of the appeal can be impleaded with permission of the Court. The powers have been given to this Court under Order XLI, Rule 20 of the C.P.C. but it does not mean that in every case the courts should grant permission to implead a party which was left out at the time of filing of the appeal as appellant or respondent. It is not denied that the persons for impleading of whom this application has been filed they are necessary party to be impleaded as appellants or at least as respondents in the appeal as they were defendants in the suit. Further for grant of permission to implead as party there must be some plausible explanation. The only reason given in the application is that due to over sight they could not be impleaded in the appeal though it has been admitted that they are necessary party. This explanation of over sight is not a sufficient ground and further we have noticed that affidavit of one of the appellants was annexed with this application. There is no affidavit of the learned counsel who has filed this appeal. Admittedly, this application has been filed after about five years of the filing of appeal and without any application qua condonation of delay. The law cited by the learned counsel for the appellants is not applicable to the facts of this case, therefore, not helpful to the appellants. In this view of the matter, when no plausible explanation for non-impleading the necessary party has been given and further when application has been filed after the delay of about five years without application for condonation of delay, we find that as the decree is not divisible and the decree has been passed jointly and severally against all the defendants, appeal having been filed against the decree by some of the defendants by not impleading the other defendants as party as appellants or respondents in the appeal, therefore, the application cannot be granted at this stage, therefore, we dismiss the application while taking light from the judgments reported as Murad Begum (Mst.) and others v. Muhammad Rafiq and others (PLD 1974 SC 322), Mst. Maqoob Begum and others v. Gullan and others (PLD 1982 SC 46), Ghulam Muhammad and others v. Mehtab Beg and others (1983 SCMR 849) and Shoaib Ahmed Faridi v. United Bank Limited (2007 CLD 835). MAIN CASE As the application filed under Order I, Rule 10 read with Order XLI, Rule 20 of the C.P.C. has been dismissed the appeal has also become incompetent on this score, therefore, we also dismiss the appeal. MH/A-126/L Appeal dismissed.