Case in which defendant is not made party in Appeal

PLJ 1998 Karachi 289

Present: RASHID A. RAZVI, J.

DISTRICT COUNCIL THARPARKAR-Appellant

versus

Syed MUHAMMAD WALI AND GOVT. OF SINDH-Respondents

Civil Revision No. 65 of 1993, decided on 12.1.1998.

Civil Procedure Code, 1908 (V of 1908)--

 —-0. XLI, R. 20-Non-joinder of defendant No. 2 (Govt. of Sindh) of suit while filing appeal-Whether appeal before High Court was not properly constituted for non-impleading necessary party and was fatal-Question  of--Provisions of Rule 20 of order XLI, C.P.C. shows that appellate courtis empowered during hearing of appeal to implead any person asrespondent who was party to suit in Court from whose decree appeal ispreferred but was not made party to appeal and that such person who isrequired to be joined in appeal, is interested in result of appeal--Therefore, it is left to discretion of Appellate Court to determine whetherparty who is required to be arrayed as one of respondent is necessarypuriy and nite rested in result of appeal-It is to be seen that under OrderXL!, Rule 20, C.P.C. no consequences is provided for error if appeal wasfiled without. impiKulmg necessary or interested person-In order todetermine that non-joining of Government of Sindh as one of respondentbefore . ippellato Court was fatal to proceedings, it would be pertinent to see that in that manner defendant No. 2 would have been affected asresult, of disposal of said appeal-In case, appeal had been allowed byDistrict Judge, definitely it would not have been to prejudice or todisadvantage of defendant/Government—-All relevant documents uponwinds plc.iiiuff h.-id base;i his claim were already brought on record byhim-Real contest of" ownership, thus appears to be between plaintiff anddefendant. No. 1 and Provincial Government (defendant No. 2) does notappear to be interested in decision of litigation-No claim was set up bythis defendant on suit property-It appears to be proforma defendant-Objection has been raised at very belated stage-Despite fact that appealbefore District Judge was pending for period of nearly five years, No. 1 nevur raised this objection—In case said Government^erest.-^ j_r, mw codings and had been adversely affected by'f 01 d¹ c ^fit\ M uould have filed appeal—From conduct of'{15! Court as well as before this Court, it-a" 11- not interested in dispute between'i \Wb not shown that defendant No. 2 tbt-jnco Appellate Court was not able to,.Jt issues involved in appeal-Heldkiie stage was not fatal-ObjectionM 'Pp 244. 295 & 296] A, B, C, D, E, F & G".''^T,u i.-e 76, PLD 1960 Lahore 277,  S( 321 and PLD 1987 Lahore 232l   Mivuaio or Appellant. Ko jjondent. No. J.   lh for Respondent No. 2.'71 '110.1997,   7.11.1997,   14.11.1977, Hi       ,,,    i      oc)7ORDEROn 7.11.1997, while hearing this Revision Application Mr. Syed Masood Ali, Advocate raised preliminary objection to the maintainability of this revision petition on the ground that the first appeal filed by the present applicant before the District Judge, was incompetent due to non-joinder of Defendant No. 2 of the suit, namely Government of Sindh. He argued that this petition is liable to be dismissed on this short point. Apart from Order I of the Civil Procedure Code, 1908, which provides joinder and non-joinder of parties in a suit, the other provision is Order 41 Rule 20, CPC which is relevant, as admittedly the first appeal was filed without impleading one of the parties before the trial Court. It would be advantageous if Rule 20 of Order XL, C.P.C. is reproduced which reads as here-under:-

"20. Power to adjourn hearing and direct persons appearing interested to be made respondents.--Where it appears to the Court at the hearing that any person who was a party to the suit in the Court from whose decree the appeal is preferred but who has not been made a party to the appeal, is interested in the result of the appeal, the Court may adjourn the hearing to a future day to be fixed by the Court and direct that such person be made a respondent."

2. I have heard Mr. Syed Masood Ali, Advocate for respondent No. 1 in support of aforesaid preliminary objection and Mr. Jhamat Jethanand, Advocate for the applicant who vehemently urged that this revision application is still maintainable despite commission of the alleged irregularity. No argument was advanced on this point by the learned Assistant Advocate General, Sindh, appearing for the respondent No. 2. Mr. Syed Masood Ali Shah, in support of his objection, has relied upon the following cases:-

(r)      Jiando Khan v. Hakim Muhammad Ishaq (PLD 1964 Karachi 61);

(ii)     Muhammad Swaleh and another v. Messrs United Grain & Fodder Agencies (PLD 1964 S.C. 97);

(iii)    Mst. Murad Begum etc. v. Muhammad Rafiq, etc. (PLJ 1974 S.C. 233);

(iv)     Punjab Road Transport Board, Lahore v. Tanvir Ahmad and 4 others (PLJ 1983 Lahore 530);

(v)      Mst. Mehr Nishan v. Mst. Gulzar Begum and 2 others (PLJ 1986 Lab, 309);

(vi)     Abdul Qadir and 5 others v. Muhammad Umar & others (PLD 1987 Lahore 232);

 (vii)    Haji Muhammad Zaman v.  Zafar Ali Khan & others (PLD 1986 S.C. 88); and

(via)   Sadiq Muhammad v. Madad Ali and 2 others  (1990 S.C.M.R. 694).

3.   Mr. Jhamat Jethanand, Advocate for the Applicant has placed reliance on the case Ghulam Muhammad and others v. Mchtab Baig and others(1983 SCMR 849) where one of the questions before the Honourable Full Bench of the Supreme Court was whether the appeal before the High Court was not properly constituted inasmuch as necessary parties were not impleaded as respondents. Reference was made to the cases Ghafur Ali and others v.  Mt.   Kaman (AIR  1930 Lah.  352)  and  Shah Muhammad  v. Muhammad Bakhsh (PLD 1972 S.C. 321). It was held that it is essential to first form the view whether the person who was not arrayed as respondent in appeal was a necessary party in whose absence no effective decree could be passed. The rule laid down in the case ofSarshar Ali v. Roberts Cotton Association Ltd. (PLD 1963 S.C. 244) was reiterated where it was held by the Hon'ble Supreme Court that non-joinder of a party does not render an appeal as incompetent against those from whom no relief was sought. The case of Muhammad Swaleh (PLD 1964 S.C. 97) is not relevant as in that case provision of Section 115, CPC was considered in reference to the exercise of jurisdiction by the High Courts. However, this question was considered by a Full Bench of Honourable Supreme Court in the case ofMurad Begum (PLJ 1974 S.C. 233). where it was held that once the decree appealed from by some of the defendants was joint and indivisible against all the defendants, then the failure to implead remaining defendants or any of them would render the appeal  incompetent  on  the  principle that  otherwise  inconsistent  and contrary decrees would come into existence regarding same subject matter and arising out of same decree. In the case of Punjab Road Transport Board, Lahore (PLJ  1983 Lahore  530) first appeal was preferred against the judgment and decree of Civil Judge, Rawalpindi which was for damages against the  appellant  and  one  Nazar Muhammad who  was   driver by profession.   That   decree  was   passed  jointly   and   severally   against   theappellant and the  driver for payment of monetary  compensation.   One application under Order XLI, Rule 20, CPC was filed at the belated stage seeking Nazar Muhammad (driver) to be impleaded as one of the parties which was dismissed by the appellate Court, on the ground, inter alia, that since  Nazar  Muhammad being a  necessaiy  party  was   not joined  as respondent the appeal was not properly constituted and was, therefore, incompetent. It was also pleaded before a Division Bench of Lahore Higl Court that no relief was sought against the driver Nazar Muhammadtherefore, he being not a necessary party, non-joinder of such party was not fatal to the said appeal. This contention was not upheld by the learned Division Bench of Lahore High Court comprising Rustam S. Sidhwa and Ghazanfar Ali Gondal, J.J. (as their lordships then were) in the following words:-

"7....       We   would   first   like   to   deal   with   thesubmission of the learned counsel for the appellant that Nazar Muhammad Driver is not a necessary party in thisappeal. It is hardly possible to agree with the submission of the learned counsel for the appellant that when no relief is sought from a person in an appeal, he is not a necessary party. In onr opinion, existence of a prayer for relief against a person is not the only criterion for judging as to whether such a person is a necessaiy party or not. The true test laid . down in Order I rule 10 CPC is that a necessaiy party is a person who ought to be joined as a party or, as explained in the precedents, a person in whose absence no effective decree can be passed. No relief may be sought from a person, yet he may be affected by the decree to be passed in appeal. When a person is likely to be affected by relief sought in appeal, he is a person in whose absence no effective decree can be passed and must, be considered to be a necessary party in the appeal. The impugned decree in this case held the appellant and Nazar Muhammad severally and jointly liable for the decretal amount. As already shown, in this appeal by the appellant, the prayer is for setting aside the said decree with costs or in other words for setting aside of the said decree in toto both against the appellant as well as Nazar Muhammad driver."

4. Same view as above was upheld by another Single Judge of Lahore High Court in the case oiMst. Mehr Sishan (PLJ 1986 Lahore 309). In that case, reference was made to the Full Bench case of Labhu Ram and others v. Rani. Partap and others (AIR 1944 Lahore 76), Allah Dad and others v. Nawab and others (PLD 1960 Lahore 277), Ghulam Mohyuddin through LRs v. Mian Amiruddin and 12 others (PLD 1977 Lahore 381), Shah Muhammad and others v. Muhammad Baksh (PLD 1972 S.C. 321), P.R.T.B. v. Tanvir Ahmad (Supra) and Mst. Murad Begum fSupra). Much emphasis was placed on the presence of necessaiy parties before the Court of appeal as the said Court cannot pass an order prejudicial to the interest of persons who are not parties to the appeal. In the case of Abdul Qadir (PLD 1987 Lahore 232) a learned Single Judge of Lahore High Court Mehboob Ahmed, J. (now Chief Justice of Federal Shariat Court) held that non­joinder of necessaiy party against whom joint decree was passed was fatal and that such negligence cannot be cured at the stage of revision before aHigh Court. It was further held that the appellate Court had no j urisdiction under Order XLI rule 20, CPC to implead persons omitted from being impleaded after the period of limitation for filing an appeal had expired and when no such plea was raised before the Appellate Court. The case of Lubhu Ram (Supra) was followed. The cases Muhammad Bakhsh (1986 SCMR 412), Hqji Muhammad Zaman (PLD 1986 S.C. 88) and the case of Sadiq Muhammad (1990 SCMR 694) related to the powers of High Court in exercising its discretion under section 115, C.P.C. Presently, this question is not under consideration.

5.   A perusal of above case law and provisions of Rule 20 of Order XLI, C.P.C. shows that an appellate Court is empowered during the hearing of an appeal to implead any person as a respondent who was a party to the suit in the Court from whose decree the appeal is preferred but was not made a party to the appeal and that such person who is required to be joined in appeal, is interested in the result of appeal. Therefore, it is left to the discretion of the appellate Court to determine whether a party who is required to be arrayed as one of the respondent is a necessary party and interested in the result of appeal. In order to determine whether a party could be termed to be interested, it would be necessary to ascertain whether such party was a necessary party in the suit or whether in his absence no effective relief can be passed by the Appellate Court. It is to be seen that under Order XLI, Rule 20, CPC no consequences is provided for an error ifan appeal was filed without impleading necessary or interested person. None of the advocates have argued the nature of Rule 20 whether it is directory or mandatory. Rule 4 to Order XL!, CPC provides that where there are more plaintiffs/defendants in one suit and the decree appealed from proceeds on any ground Common to all the plaintiffs or to all the defendants, any one of the plaintiffs or the defendants may appeal from the whole decree, and thereupon the Appellate Court may reverse or vary the decree in favour of all the plaintiffs or defendants, as the case may be. It impliedly suggests that a decree can be reversed by any one of the party to the proceeding by preferring an appeal. However, this does not mean that appeal couid be heard in absence of necessary and interested respondents. There may be a situation where a decree is passed jointly against several defendants or plaintiffs but appeal was preferred by only one or two of such persons. Take an example of a suit for administration of estate or properties left by a deceased whose legal heirs are contesting a suit as plaintiffs and defendants. A final decree is passed which becomes acceptable to some of the defendants who in turn choose not to prefer an appeal against such final decree. In other words, they may have joined with the plaintiffs. In such circumstances, if an appeal is filed by other defendants who feel aggrieved with the Judgment/ Decree without impleading such party who had accepted and acquiesced in the said Judgment/decree, what should be the fate of such appeal. Whether it is still to be treated as an incompetent appeal. In my humble view, the answer should not be based while resorting to Rule 20 only. Rules 4 and 33 of Order XLI, C.P.C. would also help in meeting such situation. It would bepertinent to observe that in addition to the det&nuinai,Ki;i necessary party, if an appellant successfully established that the purpose for j not joining other party in appeal was for the reason that such oast has j 1 accepted and acquiesced in the said judgment/order then an appellant may i not be non-suited merely on this technical ground. However, a party would \ not be entitled to take advantage of Rule 4 to Order XL!, C.P.C, in case of abatement of appeal on the ground of default to substitute legal heirs of the necessaiy party. (For detailed discussion, see Shah Muhammad and others a, Muhammad Bakhsh (PLD 1972 S.C. 321)).

6. Respondent No. 1 filed a suit: for declaration arid injunction against the present applicant as well as against respondent No, 2 namely Government of Sindh on the ground thai he is lawful owner and in possession of a sikni plot bearing No. A, admeasuring 4000 sq. yds. at; Kot, Ghulam Muhammad. Full description of the property \van given in the plaint. It was further averred that the plot in suit originally belonged to the Deputy Commissioner, Tharparkar who trunsferrrd it to the plaintiff/respondent No. 1; that the plaintiff/respondeai. No, 1 completed the construction of his house over the plot in January 1982 ami since theplaintiff/respondent No. 1 apprehended bis uniav/ful dispossession at the hands of defendant No. 1 (now applicant) from the premises in his possession and as his title was challenged, he filed the suit for the following relief.-

(a) Declaration that the plaintiff is owner of the plot in suit and the Defendants have no right, or interest therein.

(b)Permanent Injunction restraining the  Defendants frominterfering   in   the   plaintiffs   peaceful   possession   andenjoyment of the plot in suit, and the construction thereon, personally or through their agents and subordinates directly or indirectly, in any manner and by any means

(c)              The Defendant to bear

(d)              Any other relief whichand proper."

After dismissal of appeal, this revision under section 115, C.P.C. has been filed where all the parties are now before this Court. Mr. S. Masood Ali was not in a position to explain as to how his client was in a dis-advantageous position or in any manner suffered any prejudices for non-joining of the Provincial Government/defendant No. 2. All the relevant documents upon which the plaintiff had based his claim were already brought on record by him. The real contest of ownership, thus, appears to be between plaintiff and defendant No. 1 and the Provincial Government (defendant No. 2) does not appear to be interested in the decision of this litigation. No claim was set up by this defendant on the suit property. In my view, it appears to be a proforma defendant.

8. This objection has been raised at a very belated stage. Despite the fact that the appeal before the District Judge was pending for a period of nearly five (5) years, the respondent No. 1 herein never raised this objection. In case such objection had been raised before the Appellate Court then it could have been more properly adjudicated as Rule 20 to Order XLI, C.P.C. empowers an Appellate Court to adjourn the hearing and to order joining of a party which in the view of Appellate Court appears to be interested in the result of such appeal. In the instant case, the person who was not joined as party at the Appellate stage is the Government of Siiidh which has a fullfledged Legal Department and a batteiy of Lawyers. In case the said Government had been interested in the proceedings and had been adversely affected by any judgment or decree, it would have filed an appeal. From the conduct of Government/defendant before the trial court as well as before this Court, it is now established that the Government is not interested in the dispute between applicant and respondent No. 1. It was not shown that the defendant No. 2 was a necessary party and in its absence Appellate Court was no able to effectively and properly adjudicate all issues involved in the appeal. Even during hearing of this legal objection, the learned Assistant Advocate General appears to be least interested and did not advance any arguments. All these circumstances, lead me to conclude that the Government was not interested in the result of the appeal proceedings and, therefore, its non-joinder at appellate stage was not fatal. I am fortified in my view by the case Sarshar Ali v. Roberts Cotton Association Ltd. and another (PLD 1963 S.C. 244).

9. By a short order on 5.12.1997 the aforesaid legal objections to the maintainability of this revision as well as to the maintainability of first appeal were overruled and it was ordered that the Revision Appli­cation be fixed for Regular Hearing. These are the reasons for the said short order.

(B.T.)                                                                             Orders accordingly.