' MIAN HAMID FAROOQ, J.--- Appellant/plaintiff, through the appeal in hand, has called in question judgment and decree dated 12-11-2001, whereby the learned trial Court dismissed his suit for specific performance of agreement.
2. Facts in brief are that the appellant instituted the suit for specific performance of agreement dated 14-4-2000, against the respondent/ defendant (Asghar Ali Bhatti), in respect of the suit-land, described in the plaint, pleading therein that the appellant entered into an agreement to sell regarding the purchase of suit-land for consideration of Rs,33,00,000, out of which an amount of Rs,12,00,000 was paid. According to the appellant, the refusal of the respondent to execute the sale-deed necessitated the filing of the suit. The respondent was summoned and he, on 15-9-2001, made the statement before the Court that he has no objection if the suit is decreed, provided the remaining amount of Rs,17,00,000 is paid. The original agreement to sell and other documents were produced before the Court. Whereafter, the learned trial Court, after coming to the conclusion, that Muhammad Sarwar son of Muhammad Shafi, who is a necessary party, has not been impleaded in the suit, therefore, no decree for specific performance can be passed, proceeded to dismiss appellant's suit vide impugned judgment and decree dated 12-11-2001. The appellant has challenged the said decree through the appeal in hand and along with the appeal, has filed the application under Order I, rule 10, C.P.C. (C.M. No,1/C of 2001) praying that he may be allowed to add the name of respondent No,2 (Muhammad Sarwar son of Muhammad Shafi) in the main suit.
3. Learned counsel for the appellant states that the appellant felt contended when the respondent admitted the claim of the appellant and thus, could not file an application for impleading Muhammad Sarwar son of Muhammad Shafi as one of the defendants in the suit. He has added that the learned trial Court did not provide any opportunity to the appellant to implead the said person in the suit. He has further stated that this Court is empowered to implead the said person as one of the defendants in the suit. He has relied upon Muhammad Anwar Naseem v. Commissioner of Income Tax, Gujranwala and another 1998 SCM R 2020; Chiraghuddin v. Muhammad Ibrahim and others 1995 CLC 1632 and Messrs Ideal Life Insurance Co. Ltd and another v. Mst. Khairunnisa A.G.
Mirza 1980 CLC 1375. Conversely, the learned counsel for the respondent has refuted the above noted contentions and supported the impugned decree. He further adds that at the appellate stage, a person cannot be impleaded as party to the suit.
4. We have heard the learned counsel for the parties, examined the summoned record and perused the impugned judgment. Agreement to sell, dated 14-4-2000, manifests that it was executed between Muhammad Sarwar son of Muhammad Shafi, through his general attorney, namely, Asghar Ali Bhatti son of Barkat Ali Bhatti (vendor) and Khalid Mehmood son of Abdul Ghani (vendee). The appellant filed the suit for specific performance of agreement, dated 14-4-2000, only against Asghar Ali Bhatti. Undoubtedly, Muhammad Sarwar son of Muhammad Shafi was a necessary party to the suit and it was so found by the learned trial Court. The plaint shows that he was not impleaded as one of the defendants and the suit was filed only against the attorney (Asghar Ali Bhatti, the defendant/respondent) of Muhammad Sarwar. Admittedly, the respondent appeared and admitted appellant's claim in the suit. The appellant neither filed any application before the learned trial Court for impleading Muhammad Sarwar as one of the defendants in the suit nor made any oral request in this regard. The learned trial Court, in the impugned judgment, has although held that Muhammad Sarwar son of Muhammad Shafi, being the real owner of the property, was a necessary party to the suit, yet proceeded to dismiss the suit on the ground of absence of Muhammad Sarwar in complete oblivion of the settled law that the Courts have ample power to suo motu implead/add a party, whose presence was necessary to effectually and completely adjudicate upon all the questions involved in the suit. If any case-law is needed, judgments reported as Muhammad Ashraf v. Ghulam Nabi and others 1981 CLC 817 and A University of the Punjab through Vice-Chancellor and another v. Malik Jehangir Khan 1994 M LD 452 can be referred. In the present set of circumstances, we feel that the learned trial Court was under an obligation that once it has come to the conclusion that Muhammad Sarwar son of Muhammad Shafi is a necessary party, then it should have itself impleaded the said person in the suit instead of short cutting the matter by dismissing the suit. Had the learned trial Court been slightly cautious and vigilant and conversant with the law on the subject, parties' valuable time ancj money could have been saved who have come to this Court in appeal.
5. Reverting to the question as to whether at this stage Muhammad Sarwar son of Muhammad Shafi can be impleaded as one of the defendants, in the suit. The appellant did not file' any application, before the learned trial Court, for impleading Muhammad Sarwar, however, he has now filed the application (C.M. No, 1/C of 2001) along with the appeal for the said purpose. There cannot be any cavil to the proposition that the appeal is a continuation of the suit and the Appellate Court, in exercise of its powers under Order XLI, rule 33, C.P.C., can pass any order which ought to have been passed or made as the case may require. B It has been held in the case of Hazrat Khan v. Amanullah Khan and others 1996 SCM R 1217 that once the Appellate Court has come to the conclusion that a person was necessary party, then the learned Judge ought to have passed order directing him to be joined as a party. It would be appropriate to reproduce a portion from the said judgment, which reads as follows:-- "However, in view of the opinion expressed by the learned Single Judge we feel that having come to the conclusion that the petitioner was a necessary party, the learned Judge ought to have passed orders directing him to be joined as a party. We are unable to appreciate what complications would have been created if the petitioner was joined as a party in appeal. It seems the attention of the learned Judge was not invited to the rule laid down by this Court in Karamat Hussain v. Mst.
Fatima and others 1969 SCM R 256, to the effect that the introduction of the plaintiff or the defendant for one stage of a suit is an introduction to all stages. It was held in that case that substitution in appeal even that from an interlocutory order was in the same proceedings and therefore, once the legal representatives of a deceased party had been brought on the record they were on the record for all purposes. Although this principle was laid down in connection with the substitution of the legal representatives of a deceased party to a suit, it is equally applicable to the joinder of a party at appellate stage under Order I, rule 10, C.P.C. Because the appeal is a continuation of the proceedings of the suit. A learned Judge of the Lahore High Court in Zakira Begum and others v. Aziz Ahmad and others 1986 CLC 2410(2) applied this principle in Constitutional jurisdiction to correct a revisional order passed by the District Judge. We are, therefore, of the opinion that the petitioner's application under Order I, rule 10, C.P.C. Ought to have been allowed by the learned Single Judge which would have enured for the purpose of the suit in consonance with the principle laid down in the cited decision of this Court." (Underlining is for emphasis).
' The Honourable apex Court of the country in a case reported as Muhammad Anwar Naseem v.
Commissioner of Income Tax, Gujranwala and another 1998 SCM R 2020 took the view that the Service Tribunal was not justified in dismissing the appeal purely on a technical ground that the person likely to be affected by the judgment has not been impleaded as party in the appeal. It has been held in the case reported as Muhammad Sharif v. Dr. Khurshid Anwar Mian 1996 SCM R 781 that under Order I, rule 10, C.P.C. And Order XXII, rule 10, C.P.C., a Court has discretion to allow any party to join or substitute as a party.
6. In the above perspective and in view of the principles of law laid down by the Honourable Supreme Court of Pakistan, we are fortified in our view that this Court, in exercise of its Appellate powers is empowered to order for impleading the necessary party in the suit.
7, there is another aspect of the case, Order I, rule 9, C.P.C. Provides that no suit shall be defeated by reasons of misjoinder or non-joinder of parties. In this regard, reproduction of a portion from the judgment reported as Central Government of Pakistan and others v. Suleman Khan and others PLD 1992 SC 590 appears to be necessary, which is completely applicable in the facts and circumstances of the case in hand:-- "Order I, rule 9, C.P.C. Gives also, very strong support for the foregoing approach regarding interpretation and application of Order I, rule 10, C.P.C. This. Provision (Rule 9) is in a mandatory negative form; namely, that no suit shall be defeated by reason of the misjoinder or non-joinder of parties and the Court may in every suit deal with the matter in controversy so far as regards the rights and interest of the parties are concerned.
' It is not at all in dispute nor the High Court had any such constraint that what is applicable to the plaintiff and defendant at the trial stage can also apply in appeal, to the appellant and the respondent so far as these two provisions in Order I, rules 9 and 10, C.P.C. Are concerned. Not only this it is now well-settled that under Order XLI, rule 33, C.P.C. That the High Court and under Order XXXIII, rule 5 of the Supreme Court Rules this Court, can exercise the Appellate powers in favour of all or any of the respondents or parties although such respondents or parties may not have filed any appeal or objection." (Underlining is ours).
' The same view was taken in the case of Muhammad Anwar Naseem (ibid).
8. In the above backdrop and in view of the law declared by the Honourable Supreme Court of Pakistan, in the cases cited above, we have examined the impugned judgment and find that the learned trial Court under the circumstances fell into grave legal error in dismissing appellant's suit and thus, we are inclined to accept the appeal, order for impleading Muhammad Sarwar son of Muhammad Shall in the suit and to remand the case to the learned trial Court for its decision on merits.
9. In view of the above reasons and. Endings we decide the appeal in the following terms:--
(i) Present appeal as well as C.M. No,1/C of 2001 are allowed.
(ii) Impugned judgment and decree dated 12-11-2001 are set aside.
(iii) Muhammad Sarwar son of Muhammad Shafi is ordered to be impleaded as defendant No,2 in appellant's suit for specific performance, which shall be deemed to be pending before the learned trial Court.
(iv) Parties are directed to appear before the learned trial Court on 25-7-2005, on which date the appellant shall file the amended plaint, thereby impleading aforementioned Muhammad Sarwar as defendant No,2.
(v) The learned trial Court shall decide the suit after hearing the parties and of course in accordance with law.
(vi) No order as to costs.