SAYER ZAHID HUSSAIN, J.--- A suit for declaration and injunction was instituted by the petitioner assailing the basis of annual rental value wherein the Director Excise and Taxation, Lahore, Assessing Authority, Rating Area, and LDA/WASA, Lahore was impleaded as defendants.
Respondents Nos. 1 and 2 since did not enter appearance before the Trial Court, they were proceeded ex parte whereas defendant No. 3 took part in the proceedings by filing written statement. The suit was decreed by the learned Trial Court vide judgment dated 15.9.2001. The said judgment was not assailed by defendants Nos. 1 and 2. Only Lahore Development Authority, WASA Wing (defendant No. 3 in the suit) preferred an appeal thereagainst which culminated into judgment passed by the Additional District Judge, Lahore dated 3.6.2002 who remanded the matter to the trial Court for decision of the suit afresh in accordance with law.. The plaintiff/petitioner has, thus, assailed the judgment of the learned Appellate Court.
2. The learned counsel contends that not only that defendants Nos. 1 and 2 did not assail the judgment passed by the Trial Court, the said defendants were not even impleaded as party by the Lahore Development Authority as respondents in the appeal before the lower appellate forum.
According to him, the appeal so preferred was defective which could not be entertained nor any judgment could be passed by the Appellate Court on such an incompetent appeal. Makes reference to rule 3 of Order 41 of Code of Civil Procedure 1908.
None of the respondents despite service have entered appearance. They are proceeded ex parte.
3. The contention of the learned counsel that in the absence of necessary party, the appeal suffered from inherent defect and was incompetent which could not, thus, be accepted, has substance in view of precedents on the subject i.e. Mst. Maqbool Begum, etc. Vs. Gullan and others (PLD 1982 SC 46), Ghulam Muhammad and others vs. MehtW) Beg and others (1983 SCMR 849), Abdul Qadir and 5 others vs. Muhammad Umar and others (PLD 1987 Lahore 232), Muhammad Sulenian vs. Abdul Rashid and 13 others (PLD 1987 Lahore 387), Muhammad Ibrahim and another vs. Jalal Din (2000 CLC 165) and Sher Muhammad and 27 others vs. Muhammad Mumtaz-ul-Islam through legal heirs and 6 others (2001 MLD 1964). Since the appeal itself was incompetent before the first Appellate Court, the judgment rendered by it on such an appeal loses all its significance and legal efficacy.