PLJ 2011 SC 27
[Appellate Jurisdiction]
Present:
Nasir-ul-Mulk & Rahmat Hussain Jafferi, JJ.
BASHARAT
ALI, etc.--Appellants
versus
MUHAMMAD
ANWAR, etc.--Respondents
Civil
Appeal No. 1790 of 2003, decided on 13.4.2010.
(Against
judgment dated 7.3.2003 of the Lahore High Court, Lahore, passed in Civil
Revision No. 2408 of 1996).
Civil
Procedure Code, 1908 (V of 1908)--
----O.
XLI, Rr. 4, 20 & 33--Constitution of
PLD 1989 SC 541.
Civil
Procedure Code, 1908 (V of 1908)--
----O.
I, R. 10 & O. XLI, R. 20 r/w S. 151--Application for impleading
as party was time barred--Validity--Provisions of O. XLI, R. 20, O. I, R. 10
and S. 151, CPC are part of procedural law, therefore, they are to be liberty
construed in order to advance the calls of doing substantial justice instead of
gagging the cause. [P. 31] B
Civil
Procedure Code, 1908 (V of 1908)--
----O.
I, R. 9--Constitution of
Civil
Procedure Code, 1908 (V of 1908)--
----S.
151 & O. XLI, R. 20--Inherit power with appellate Court--After expiry of
period of limitation by exercising suo moto jurisdiction--Rights and interest of the
parties--Validity--Under O. XLI, R. 20 r/w S. 151 of CPC, there was inherit
power with appellate Court to overcome such difficult even after expiry of
period of limitation by exercising suo moto jurisdiction and would have impleaded
as respondent in matter because without his presence the revision application
could not have been properly decided as his presence would have facilitated and
enabled the Court to effectively and completely adjudicate upon all the
questions involved in the suit so as to resolve the controversy. [P. 31] D
Constitution
of
----Art.
185(2)(d)(e)--Civil Procedure Code, (V of 1908), O. I,
R. 10--Direct appeal--Challenging the mutation entered in revenue
record--Revision application was allowed on the technical ground that one of
the plaintiff was not impleaded as
party--Validity--High Court after disallowing the application under Order, I,
R. 10, CPC allowed the revision application without hearing, discussing the
merits of the case and giving finding on any issue involved in the suit--Caused
miscarriage of justice--Case was remanded to High Court. [P. 31] E
Ch. Mushtaq Ahmed Khan, Sr. ASC
for Appellants.
Kh. Azhar Rasheed,
ASC and Mr. M.S. Khattak, AOR for Respondents No. 1
to 2.
Date
of hearing: 13.4.2010.
Judgment
Rahmat Hussain Jafferi, J.--This direct appeal under Article 185(2)(d)(e) of the Constitution of Islamic Republic of Pakistan,
1973 has been filed to challenge the judgment dated 07.03.2003 passed by Lahore
High Court, Lahore, whereby the revision application bearing No. 2408-D of 1996
filed by the Respondents/Defendants was allowed on the technical ground that
one of the plaintiff, namely Adalat Khan was not impleaded as party.
2. The facts relevant for the present appeal are
that the appellants/plaintiffs filed a suit challenging the Mutation No. 8062
entered in revenue record on 28.12.1986 and sanctioned on 30.12.1986 by which
the suit property was transferred in the name of the defendants/respondents.
Such mutation was made on the basis of transfer made by Noor
Muhammad, predecessor-in-interest of the plaintiffs, in favour
of the defendants. The suit was contested by the defendants. The trial Court
dismissed the suit of the plaintiffs. There were eight plaintiffs in the suit
out of them seven had filed the appeal, except Adalat
Khan one of the plaintiffs before the District Court. The appeal was allowed
and the judgment and decree of the trial Court was set aside. Consequently, the
suit of the plaintiffs was decreed. The two defendants Muhammad Anwar and Muhammad Ashraf
preferred revision application before the High Court in which they impleaded seven plaintiffs except Adalat
Khan. On 30.05.2002, the plaintiffs moved an application under Order I, Rule
10, Order XLI, Rule 20 read with Section 151, CPC for impleading Adalat Khan as one of
the respondent in the revision application, who was not made party by the
defendants. After hearing the parties not only the said application was
dismissed but the revision application was allowed without discussing the
merits of the case under the impugned judgment dated 07.03.2003. Hence the
present appeal.
3. Learned counsel for the appellants has stated
that Adalat Khan, who was one of the plaintiff, was
necessary party before the revisional Court, as
without his presence, the suit could not have been properly decided because he
acquired valuable right when the decree of the trial Court was set aside by the
appellate Court; that the said Adalat Khan should
have been joined party by the respondents, as the appellate Court decreed the
suit as prayed in the plaint; that instead of allowing the application under
Order I, Rule 10, Order XLI, Rule 20 read with Section 151, CPC, the High Court
allowed the revision application without hearing and discussing the merits of
the case on technical ground of non-impleading Adalat Khan as party in the proceedings.
4. Conversely, learned counsel for the
respondents has stated that Adalat Khan had accepted
the decree of trial Court, therefore, he did not prefer appeal before the
District Court; that the said decree became final against Adalat
Khan, hence he was not required to have been made party in the revision
application and that the application under Order I, Rule 10, Order XLI, Rule 20
read with Section 151, CPC filed by the appellants was time barred, therefore,
the revisional Court had rightly dismissed the said
application and allowed the revision application.
5. Having heard the parties' counsel and
perusing the record, we find that eight plaintiffs including Adalat Khan had filed the suit challenging the Mutation
No.8062 entered in the revenue record on 28.12.1986 and sanctioned on
30.12.1986 with the following prayer:--
The
trial Court dismissed the suit of the plaintiffs but the appellate Court set
aside the judgment and decree of the trial Court in the following manner:
"that the impugned judgment and decree dated 07.01.96, passed
by the trial Court are hereby set aside and the suit of the
appellants/plaintiffs stands decreed as prayed leaving the parties to bear
their own costs."
6. From the judgment of the appellate Court
apparently it is clear that the prayer made in the plaint was allowed without
any exception and the suit was decreed in terms of said prayer, under which
Entry No. 8062 was cancelled thereby reverting the property back to Noor Muhammad. As he had died, therefore, prima-facie his
legal heirs acquired the rights as per their share according to the right of
inheritance. No doubt, Adalat Khan did not prefer
appeal before the District Court but the dispute was common as the entry was
affecting all the plaintiffs. The appellate Court allowed the prayer in toto, which can be done under Order XLI, Rules 4, 20 &
33 of Code of Civil Procedure, 1908 (hereinafter referred to as `CPC') as held
in the case of PRTB v. Abdul Ghafoor (PLD 1989 SC
541). It appears that Adalat Khan also benefited from
the same and became rightful owner in the property to the extent of his share
for the simple reason that Entry No. 8062 was cancelled. Thus, when the
appellants filed the revision application, it was against the judgment and
decree of the appellate Court by which the aforesaid prayer was decreed
prima-facie conferring the right of inheritance upon all the legal heirs of Noor Muhammad, including Adalat
Khan, therefore, Adalat Khan became one of the
necessary party as such he should have been joined as respondent in the matter
but it appears that due to some bonafide mistake or
misunderstanding in the mind of the appellants for the reason that the judgment
of the trial Court became final against Adalat Khan,
he was not joined as party which appears to be misconception, as per decision
of appellate Court.
7. In these circumstances, instead of the
appellants, the respondents moved an application under Order I, Rule 10, Order
XLI, Rule 20 read with Section 151, CPC for impleading
Adalat Khan as party but by that time the said
application became time barred; hence dismissed. It is important to note that
provisions of Order XLI, Rule 20, Order I, Rule 10 and Section 151, CPC are
part of procedural law, therefore, they are to be
liberally construed in order to advance the calls of doing substantial justice
instead of gagging the cause. General law with regard to impleading
the necessary party and the effect of Order I, Rule 9, CPC is that no suit
shall be defeated by reason of mis-joinder or non-joinder of the parties and the Court may in every suit deal
with the matter in controversy so far as regards the rights and interests of
the parties actually before it. However, under Order XLI, Rule 20 read with
Section 151, CPC there was inherit power with the appellate Court to overcome
such difficulty even after the expiry of period of limitation by exercising suo motu jurisdiction and should
have impleaded Adalat Khan
as respondent in the matter because without his presence the revision
application could not have been properly decided as his presence would have
facilitated and enabled the Court to effectively and completely adjudicate upon
all the questions involved in the suit so as to resolve the controversy
finally. Unfortunately, the High Court after disallowing the application under
Order I, Rule 10, CPC allowed the revision application
without hearing, discussing the merits of the case and giving finding on any
issue involved in the suit. This, in our view, has caused miscarriage of
justice.
8. In the light of what has been discussed
above, we are of the considered view that Adalat Khan
should be made party, which is hereby done. Consequently, the impugned order is
set aside and the matter is remanded to the High Court for decision afresh in
accordance with law after providing opportunity of hearing to all concerned.
The suit was filed in the year 1987, as such the High
Court shall decide the matter within a period of three months from the date of
receipt of the order. The appeal is allowed in the above terms.
(R.A.) Case
remanded.