P L D 1963 (W (PLP)

Reader of the Court for Respondents Nos. 8 & 14 (minors). Shaukat Ali for Respondent No.

17. S. Rifaqat Ali Shah for Respondents Nos. 19 &

20. Date of hearing : 12th March 1963. MUHAMMAD DAUD KHAN, J.‑Qasim Khan plaintiff instituted a suit in the Court of the Civil Judge First, Class, Peshawar, on the 29th of June 1953, for possession of 15/32 shares of agricul tural land, for possession by partition, of 15/32 shares of a vacant site with shop, and for possession by partition of 15/32 shares of a house specified in the plaint, against Mst. Mulkai and several other defendants. The suit was decreed on the 8th of April 1957. In appeal, the Additional District Judge, Peshawar, reversed the findings of the learned trial Judge, and dismissed the suit on the 26th of October 1959. This appeal was instituted by Muhib Ali, who figured as defendant No. 3 in the original suit. Qasim plaintiff came to this Court in second appeal. He presented the memorandum of appeal on the 6th of February 1960 in this Court, and it was returned to him for correction and he re‑submitted it on the 12th of February 1960. It came before a Division Bench of this Court on the 18th of February 1960 and was admitted to full hearing.

2. In the meantime Ordinance XLIV of 1962 came into force and under section 59 (4) of the Ordinance, every appeal from an appellate decree pending before a Court immediately before the promulgation of this Ordinance was provided to be deemed to be an application for revision under section 115 of the Civil Procedure Code as amended by this Ordinance and was to be heard, and as far as practicable, determined accordingly.

3. On the 24th of October 1962, the plaintiff applied to this Court for impleading Muhib Ali, at whose appeal, the decree of the trial Court passed in favour of the petitioner, was set aside, as a respondent in this appeal as his name was left out inadvertently in the memorandum of second appeal. This application came before one of us on the 7th of November 1962, who ordered the issue of notice to the respondents. This application, therefore, is to be disposed of by this judgment.

4. Counsel for the petitioner, relies on Order XLI, rule 20, C. P. Code and urged that the Court had wide powers to order a person to be made a party to an appeal if he is interested in the result of the appeal, and since Muhib Ali, is interested in the result of the appeal, therefore, the Court is competent to order that he might be made a party to this appeal.

5. Counsel for the respondents contended that the appli cation for making Muhib Ali as party to this appeal was instituted long after ninety days, i.e., the period of limitation fixed for institution of second appeals, and therefore, Muhib Ali could not be added as a respondent after the appeal against him had become time‑barred. In support of it he relied on Labhu Ram and others v. Ram Partap and others (A I R 1944 Lah. 76). In. this case it has been held that "when once time for an appeal has run out, it is not possible for an appellant subsequently to implead those defen dants who were not originally impleaded as respondents in the appeal. In a case in which a necessary party to an appeal has been omitted, the Court cannot exercise any power vested in it under Order XLI, rule 20 to cover the omission. An appellate Court could not exercise its power under Order XLI, rule 20, if limitation had already expired. No question of section 5, Limitation Act, arises in such cases. No right vests in any appellant to make an application under Order XLI, rule

20. The discretion to add a party who is interested in the result of .the appeal is vested in the Court alone, and. it is the Court that can, make that order suo motu. It cannot, therefore be urged that if the Court is moved to exercise, that power in favour of a certain appellant, the appellant in doing so prefers an appeal against the order of the trial Court, or seeks to amend his original memorandum in any manner."

6. The provisions of Order XLI, rule 2U, C. P. C. clearly lay down‑that the Court is competent to order that a party who is, interested in the result of an appeal be added as a party at any time. Muhib Ali is not interested in the result of the appeal so far as the decree of the learned District Judge in his favour had become final and the, limitation had run out for filing a second appeal against that decree. In V. P. R. V. Chockalingam Chetty v. Seethai Ache and others (A I R 1927 P 6 252), it has been laid down that "a defendant against whom a suit has been dismissed and. as against whom the right of appeal has become barred, cannot be deemed to be interested in the result of the app‑al filed by the plaintiff against the other defendants. It is for the plaintiff appellant who applies to the Court to exercise its powers under this rule to show what is the nature of the interest of such defendant." It is, therefore, clear that Qasim, who instituted the second appeal, had no legal right to apply for bringing Muhib Ali as a. respondent on the record after the expiration of the period of limitation. His application after the expiration of the period of limitation for institution of appeal, cannot be entertained. It is; therefore obvious that there was no, valid second appeal pending in this Court when Ordinance XLIV of 1962 came into force, and therefore, this second appeal could not lie treated as a revision petition. Subsection (4) of section 59 of the Ordinance pre‑supposes that those appeals against the appellate decrees pending before Courts immediately before the promulgation of this Ordinance, which are valid appeals, instituted strictly within the period of limitation in conformity with the other laws then in force should be treated as revision petitions. This second appeal, therefore, was barred by time, for a necessary party having not been impleaded as respondent in the appeal, and therefore, this appeal could not have been treated as a revision petition. The application, therefore, of the peti tioner for adding Muhib Ali as respondent in the appeal is dismissed.

7. The necessary result is that the revision, petition also stands dismissed with costs. K. B. A. Petition dismissed.