' MUHAMMAD ANWAR KHAN KASI, J --- This order shall dispose of the objection about the maintainability of appeal filed by the appellants, who were not parties before the learned trial Court.
2. Background of the case is that the present respondent No,1 filed a suit for specific performance against defendant/respondent No,2 in respect of an agreement dated 17-9-2002 regarding the sale of House No,5-B (half portion of Plot No,5), Street No,61, F-7/4, Islamabad, which initially was contested by the defendant/respondent No,2, but thereafter he disappeared and ex parte proceedings vide order dated 8-2-2005 were ordered against him. And an ex parte judgment and decree was passed on 16-3-2010, which necessitated the filing of present appeal.
3. The appellants are the legal heirs of respondent No,2, who had been a defendant in Civil Suit No,1349 of 2008 filed by the present respondent No,1, which was decreed ex parte against the defendant/ respondent No,2.
4. The ex parte decision has been challenged by the present appellants as being adversely affected by the judgment and decree dated 16-3-2010.
5. After hearing the preliminary arguments, pre-admission notices were issued to the respondents and operation of the impugned judgment and decree was suspended on 21-5-2010.
6. The respondent No, I appeared through counsel and challenged the maintainability of the appeal on the ground that the present appellants have no locus standi to file the present appeal as they had never been a party before the learned trial Court. The counsel for respondent No,1 insisted that the question about the maintainability of the appeal be decided before a decision on merits, therefore, by this order. We have confined ourselves to decide the issue of maintainability of appeal only.
7. The learned counsel for respondent No,1 reiterated his arguments and stated that the execution of the agreement by the defendant/respondent No,2 is not disputed. The appellant No,4 had submitted an application under Order I, Rule 10, C.P.C. Before the learned trial Court, which was rejected and her Civil Revision Petition No,422 of 2006 was also dismissed in limine by the Hon'ble Lahore High Court Rawalpindi Bench. It is further submitted that the appellants remained silent for a long time and during the execution proceedings came up with a plea that the defendant/respondent No,2 is a missing person, therefore, for the purposes of these proceedings, they are neither necessary nor proper party. It is argued that the appeal under section 96, C.P.C.
Can be filed by the aggrieved party only and not by the strangeRs,
8. On the other hand, learned counsel for the appellants submitted that the appellants are being adversely affected by the impugned ex parte judgment and decree as admittedly they are legal heirs of the defendant/respondent No,2 and are in possession of the suit property. It is further submitted that for all purposes appellants are affected party and there is no specific mention in section 96, C.P.C. That only an aggrieved person can file an appeal. It is stated that section 96, C.P.C. States about the filing of appeal against every decree including ex parte decree. The counsel relied upon the following authorities:--
(i) PLD 1965 Kar. 603, (ii) PLD 1969 SC 65, (iii) 1991 MLD (AJ&K) 2178, (iv) 1992 CLC 1099, (v) 2001 CLC 781, (vi) 2009 SCMR 385
9. The case reported in PLD 1965 Kar. 603 discusses in detail the principles determining right of person, not party to proceedings. It was held that such person has a right of appeal if his interest is adversely affected by judgment or decree. The other authorities fortify this view.
10. We have heard the arguments and examined the record with the assistance of the learned counsel for the parties.
11. At this stage, we refrain ourselves to discuss the merits of the case as the parties desire to have an order about the maintainability of appeal filed by the present appellants first. Record reveals that suit was filed against respondent No,2/defendant, who initially contested the suit, but by order dated 8-2-2005 was proceeded ex parte and thereafter an ex parte judgment and decree was passed on 16-3-2010, impugned herein. There is no denial that the present appellants are the legal heirs of respondent No,2/defendant and they should be adversely affected by the execution of impugned judgment and decree, therefore, they have no alternate remedy, but to challenge the said decree/judgment when their predecessor-in-interest is missing since September, 2004. The record further reveals that a proper report about his missing was lodged in the B concerned Police Station and his case is also pending before the Hon'ble Supreme Court along with other missing persons.
12. It is observed that as a general principle none can appeal from a decree unless he is a party, but a person, who is not a party to the trial proceedings in a civil suit can file an appeal if he/she is adversely affected by the order and the Appellate Court considers it necessary in the interest of justice, because in such cases right of appeal is a safety wall against the perpetuation of injustice as well as against useless appeals.
13. In our opinion, it does not violate the common, law doctrine that the right to appeal is a substantive right and the appeals cannot be filed without a statutory sanction and such rights are given to the parties after examining the applicability in the given circumstances of the case. The right of appeal arises under the statutory provisions such as sections 96, 100, 104 and Order XLIII, Rule 1, C.P.C., but it is attached to those persons, whose interests are prejudicially affected.
14. The facts of the case leads us to the conclusion that ordinarily leave to appeal should be granted to the persons, who, though not parties to the proceedings, shall be bound by the decree or judgment in that proceedings and who cannot otherwise attack its correctness in other proceedings. The dismissal of application under Order I, Rule 10, C.P.C. Of appellant No,4 would not debar her for filing the appeal if her rights are being affected. Even otherwise, the first three appellants had not filed any application for impleadment and there is no rejection order against them and being legal heirs and by affecting adversely they could file the appeal, because the civil rights are involved and they have no alternate remedy but to file an appeal. On this view we are fortified by the authorities referred by the learned counsel for the appellants.
15. In view of the above, the appeal filed by the present appellants is held maintainable. The same is admitted for regular hearing. Injunctive order dated 21-5-2010 shall continue and operation of impugned judgment and decree shall remain suspended till the decision of the appeal.
16. Re-list on 8-6-2011.