Powers of Appellate Court to Implead Interested Parties

PLJ 1987 Lahore 209

Present: MAHBOOB AHMAD, J ABDUL QADIR and 5 Others—Petitioners

versus

MUHAMMAD UMAR and Others—Respondents

Civil Revision No. 1616-D of 1982, heard on 8-2-1987

 (i) Civil Procedure Code, 1908 (V of 1908)—

------ S. 115—Revision petition—Parties to — Failure to implead neces­ sary party—Negligence of—Effect of—Valuable vested right accruing to oth;r party by neglect of petitioner to implead joint decree- holders as respondents—No steps even taken to make such persons as party before lower appellate court—Held : Allowing of implead'ment of such joint decree-holders (by accepting revision in atten­ dant circumstances) to amount to giving premium to one's own neglect to detriment of another and to be warranted neither in law nor in equity. [P. 212]C

(ii) Civil Procedure Code, 1908 (V of 1908)—

------- O XLI, R. 2U—Interested persons—Impleadment of as party — Held : Appellate Court to have no jurisdiction (under O XLI, R. 20, CPC) to implead persons (omitted from being impleaded) after expiry of, period of limitation for filing appeal. [P. 212JD

(iii) Civil Procedure Code, 1908 (V of 1908)—

------ O. XLI, R 20—Interest-d persons—Impleadment of as respon­ dents—Appellant impleading only one of persons holding joint decree —Held : There being no proper appeal, court to have no jurisdiction to implead joint decree-holders (omitted to be impleaded as party).

LP. 212JE

(IT) Civil Procedure Code, 1908 (V of 1908)—

------ O XLI, R. 20—Interested  person — Impleadment of — Court — Powers of — Held : Provisions of O. XLI, R. 20, CPC not to override other provisions regarding filing of appeal and limitation applicable thereto as contained in Code of Civil Procedure and Limitation Act. [E. 212]F

(v)  Ci?il Procedure Code, 1»08 (V of 1908)—

------ O. XLI, R. 20—Interested persons — Impleadment of as respon­ dents—Court—Powers of—Exercise of—Right already accruing to decree-holders omitted from being impleaded as party to appeal by neglect of appellants in Sling proper appeal against them — Held : Such valuable right not to be lightly treated or taken away. [P. 212]G

(fi) Appeal—

— —Joint-decree —Appeal against — Failure to impiead ail decree-hoi ders—Effect of—Some of decree-holders aot made party to appeal—Such decree also found to be not severable—Held : Appeal aot to be competent and properly constituted—Held further : Joint decree becoming final in favour of persons omitted from being impleaded as party in appeal, obvious result to follow to be dis­missal of appeal itself. [Pp. 211 & 212|A & B

AIR 1940 Lah. 314 ; AIR 1933 Cal. 414 & AIR 1937 Lab. 180 re/. Mr. Ahmed Hassan Khan, Advocate for Petitioner. Mr, Jari Ullah Khan, Advocate for Respondents. Dates of hearing : 1-12-1986 & 2 & 8-2-1987,

JUDGMENT

hi this revision under Section 115 of the Code of Civil Procedure judgments and decrees dated 20th of December, 1980 and 3rd of November, 1982 respectively passed by the learned Civii Judge Third Class, Toba Tek Singh and the learned District Judge, Toba Tek Singh have been assailed with the prayer that tht suit of the respondents be dismissed with costs throughout.

2. The facts necessary for the purposes of this revision, briefly stated, are that Muhammad Uraar, respondent No. 1 and Farzand AH, the deceased respondent No.2, instituted a suit against the present petitioners before the Civil Judge, Toba Tek Singh for a declaration that the consent decree dated 7-1-1956 passed by the Senior Civil Judge, Faisalabad in case "Khair Din son of Pane Khan versus Muhammad Shafi son of Ali Muhammad" was against facts, based on fraud and collusion, against law and procedure and thus liable to be set aside so as to be inoperative upon the rights of the aforementioned plaintiffs and that they have become the full owners of the land detailed in the said decree having been in occupa­tion thereof for more than 25 years with the consequential relief that the defendants be restrained from interfering in the possession of the plaintiffs in any manner whatsoever.

3 This suit was resisted by the petitioners. During the pendency of the suit Farzand AH, respondent No. 2, died and his legal heirs, namely Mst. Mukhtaran Bibi and Mst. Iqbal Bibi were brought on record is plaintiffs.

4.      The learned trial Court on the divergent  pleadings  of   the parties framed four issues including that of   relief and  ultimately  vide  judgment dated 20-12-1980 a decree was passed in favour   of  the   plaintiffs,   namely Muhammad Umar,  Iqbal  Bibi  and  Mukhtaran  Bibi  declaring  that the consent decree dated 7-1-1956  was based   on   fraud  and  being  without jurisdiction was set aside.    It was also declared that the  subsequent  orders whatever  passed on  the  impugned  consent  decree were   illegal and the plaintiffs  were held  to    be  owners  of   the   suit   land  through  adverse possession.

5.              The petitioners feeling dissatisfied with the   afoiementioned decree of the trial Court preferred an   appeal  before  the  learned District Judge, Toba Tek Singh who dismissed the  appeal  by   his judgment   and decree dated 3rd  of November,   1982.    The   learned   District Judge  found  the appeal as improperly constituted because two of the decree holders viz Mst. Mukhtaran Bibi and Mst. Iqbal Bibi were not  impleaded as respondents in the appeal.

6.              The petitioners have therefore come up in   this revision against the aforementio'ned judgments and decrees of the two courts below.

7.              The learned counsel  for    the    petitioners   raised  the   followingcontentions : —

 (i) That the suit having been instituted on 19-5-19/6 i.e. after the promulgation of the Law Reforms Ordinance, 1972 the non-impleading of Mst. Mukhtaran Bibi andMst. Iqba) Bibi as respondents in the appeal could not make the appeal as improperly constituted ;

(/'?') That even if two of the decree holders were not impleaded as respondents the appeal could not be held to be improperly constituted as provided by Section 99 of tbie Code of Civil Procedure. Reliance was placed in this regard on "East and West Steamship Co. v. Queensland Insurance Co." reported as PLD 1963 Supreme Court 663 ; and

(Hi) That in any case the appeal of the petitioners could not be thrown out by the lower Appellate Court as against Muhammad Umar respondent.

8. The learned counsel for the respondents on the other hand conten­ded that it is wholly immaterial whether the suit out of which this revision has arisen was filed before or after the promulgation of Law Reforms Ordinance, 1972 as there is no question of abatement involved in the present controversy and the only controversy requiring adjudication is whether an appeal against a decree holder would be competent without impleading him as a respondent.

In the same context the learned counsel for the respondents submitted that it being the established position on record that Mukhtaran Bibi and Mst. Iqbal Bibi who are the decree-holders in the suit out of which the present revision has arisen had not been not only initially arrayed as respondents but were not even impleaded subsequently when this defect was specifically brought to the notice of the petitioners during the pendency of the appeal, the dismissal of the appeal by the lower Appellate Court as improperly constituted was the only course that could be adopted by the said Court. The learned counsel for the respondents in support of his above contention placed reliance on "Teja Singh and another v. Kartar Kaur and others'" reported as AIR 1937 Lahore 180.

9.    In reply the learned counsel for the petitioners  pressed into service Order XL1 Rule 20 of the Code   of Civil   Procedure   to  contend  that the lower Appellate Court could   have  directed  that  the   omitted  persons be made respondents to the appeal.

10.    The crucial point falling for determination in this revision is as to whether an appeal against a decree   in  favour of more  than  one person which decree is ot severable can be   held  to  be  competent  and properl>  onstituted if some of the  decree-holders  are  not  made  a  party  to the appeal.   The answer to the above question  has  of necessity to be no in view of the   consistent  judicial  precedents on  the subject.    Reference in this behalf may usefully be made to"Shangara Singh  and others  v. Imam Din and others" reported as AIR 1940 Lahore  314  and   "Dwarikanath Par v. Krishna   Barai and another"  reported as  AIR 1933   Calcutta  464  in addition to AIR 1937  Lahore   180 cited  by  ths  learned  counsel  for the respondents.   The above  answer is based  oa  the principle that the jointdecree becomes final in favour   of the   person/persons omitted from beingL impleaded as a party in the appeal and as such the obvious result to follow lis the dismissal of the appeal itself. No valid exception, therefore, can jbe raised to the dismissal of the appeal by the learned District Judge vide the impugned judgment.

11.               It may also be observed that in the case in hand not only the petitioners failed to initially implead necessary respondents, viz. Mukhtaran Bibi and Iqbal Bibi the joint decree-holders,  but  despite  the fact that the above fatal omission had come to their knowledge before passing of the impugned judgment by the learned District  Judge,  they even then did not care to take any steps   whatsoever to implead them.    The matter did not rest at that and the petitioners continued   to  be negligent in this regard inasmuch as the present revision was also filed by them without impleading Mukbtaran Bibi and Iqbal Bibi as a party thereto and  it was at quite a late stage that they filed a misconceived application  for  correction of the sheet bearing names of the parties so as to add   Mukbtaran  Bibi and IqbalBibi as respondents.   The above   facts, therefore, clearly establish the persistent contumacious neglect of the petitioners in prosecuting their cause before the lower Appellate Court and in  this  Court.    Such a neglect does not merit to bs excused in any circumstance especially when by the neglect, a valuable vested  right has accrued to the other party. The allowing of the impleadment of Mukhtaran Bibi and  Iqbal   Bibi  by accepting this revision in  the attendant circumstances  narrated  above would to  say   the least amount to giving premium  to one's  own  neglect to the detriment  of another which would neither be warranted in law nor in equity.

12.               Adverting now to the contention  of the  learned  counsel for the petitioners that the provisions of Order XLI  Rule 20 of the Code of Civil Procedure should have been resorted to by the  lower  Appellate Court,  I suffice by observing that the  lower  Appellate Court  had  no jurisdiction under Order XLI Rule 20 CPC   to implead  persons omitted  from  being implcaded after the period of limitation for filing the  appeal  had expired and more so when there was no request before him either to do so.

13.               It would also be pertinent to point out  that Order XLI  Rule 20 CPC will only be attracted where there is an appeal   pending in  the Court on which a decision may be given by it but  when the appellant impleads only one of the persons holding a joint  decree there  is  no  proper appeal before the Court and, therefore, the Court would  have   no jurisdiction to implead other persons (decree-holders) who have been   omitted to  be impleaded as a party.   I stand fortified in my above view by  "Labhu Ram and others v. Ram Partap *and others", a Full Bench decision of this Court, reported as  AIR   1944  Lahore  76 in  which  it    was further held  that there was no question of Section 5  of the Limitation Act  being applied as well.

14.               I may also add that the provisions of Order XLI Rule 20  CPC are not intended to over-ride other provisions   regarding the filing of appeal and the limitation  applicable  thereto  as contained  in the Code of Civil  Procedure and the  Limitation  Act.    As  already  pointed   out above the right that had accrued to the  decree holders who   were omitted from being impleaded as   a  party to  the appeal  by  the  neglect of the petitioners in filing a proper appeal against them in accord with the provisions of law is a valuable right which could not be lightly treated or taken away.

In view of the foregoing discussion, I find no merit in this appeal (sic) which is accordingly dismissed. There will, however, be no order as to costs.

(TQM)                                                                           Petition dismissed.