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 {{BLUR PAGE}} contested*ithefdeftindant/TespondorOlo.2;))010*eakltrAappeared and ex parte proceedings vide order dated 08.2.2005 were ordered against him and an ex parte judgment and decree was passed on t'61:1010,41reti iticdeiitiated .4 the(filitig ofpreiOtappeidsitiM - '? 1 41 .11,1X t: Odw .InebriTIAInAnuang---11 'Me artgegan are the legal heir' of reS05 iiiiiiirtH . Nil.,[2:4.1ho rS4Wlilecen41 1801 Ili. Firtifil 'Suit' lisi6:'*1349itotitv trted -a -)theltaent t :Jaw 0 ,lr.,1t. , . 5...,,, .e I t .Lion-, - i-el'. " '' " iespondent NO. 1:-.`w tcn was gecreeauser Nat kmdthe d .:''dent 1,4 c LA --noiii8o(1.5.1q v.t)..4---Ii.:,Nqi: to 1 8i1--1 -.3fithm;otAintltolork:5/ o. 2. i..i or w moeini-i ;i iii,-1,yyniq 4 it wi r-,-:!'irr r'vjrni: r rr, ,r 'r -, r,..., .-;;.: ,;.'a.i.Ilq. i./ tik:id 1; 4. . -,Tlie acparte decisigp,,has been challenged by ,tkiejment appellants as being :adversely :affected*, the judgment,. Wit; degmstated ',--j it6.3.2010ba1ivw: ry.J.d ziviiii laiiJoit? In..thqqA :IA --f::,:o2ui.Lo IF.,A6iiii 'wit vt 4r1'' 44';'1116allb'ifil idi t t liaiiRehiniMitilV qi iiff113it;adtiliSt ion 4AWiri. -ioy iigrvllTggidOiitgnkiliitikiio*41llie10gludgient yli-ti0 -tn:toi3( l I fil,i.,,ifir tr)Ffi 5t.)42,-. -gri;:..Aniawree w su glfitli orit ot ?,wrina ./xwt rini,of .w .Nor-rxi wit o tri.In;-1 i:': ilii,,rifli, inf.Pitii. Of w0.151 bnn ?gnib56'.6ott, ttiftt The . Rg$110100.04slqni J 4PPP4re4: 0119_44!=;f9tLffL-; and inweiiittlened ,ibe: maintainabilitylpf the appeal on the grtifund,iittblule,Arpsent appellants have no locus-stai4i to,,filethe.Present,appealasitheythATmbeen a party before the learned Trial Court. The counsel for respondent No. 1 insisted that the 'iitieStion about the maintainability of the appeal be amended before a decision on merits, therefore, by this order, we -tiayec91)cknecloo4i.Sdls to decide the issue of maintainability of appeal only.
7. ; The learned counsel 401,'-respOrident No..' I reiterated his argutnepts ..And. Scatedtbat the, execution of the , agreement by the defendant/respondent No 2 is not disputed,. The appellant N6.
4 hitdIsit814nitted an application under Order I. Rule 10, ,CPC before the learned triartourt, OihithVisiejeeted,dild tettivil ft visionfietition416: 422/06\ was also'.Dismissed in limine by the Hon'ble Lahore High Court, Rawalpindi Beneb4It.Is further submitted that the appellants;, remained csiilent for a long time, and during the execution proceedings came up with a plea that the defendanthisPondent No. 2 is a missing person, therefore, for the purposes,:of theSe prOceeding&,i.They are neither necessary nor proper party. It is argued thatthe:ppealunder Section 96, CPC can be filed by the aggrieved party only and not by the strangers. l.'...
A':.0i1, 8, On the other hand, 'learned counsel for the appellants '' stil!Iiiiikteddthat the tapps itaills (trOtiinilittikikly4ffedtedlii.The impugned ex ""f1 vAiii"luiiiheilt ' and deci44)"ii.4't adiiiittedlio- they:-fie letat,, heirs - Of the defendant/respOndent IN6-."2'and'itt"iirPossessiOnnof the suit property.. It is further submittedAatipryaIll purposes appellants are affected party and there is no specific, rilf...900)40eetion55,, CPC that only an aggrieved person can file an appeal. It is:stated .That Section 96, CPC states about the filing of appeal against f .:1A; ,every decree incluthrticppyle decree. The counsel re, ,upon SCK1 the following , , t - -,{{BLUR PAGE}} Az qtrU1)50-a4 {{BLUR PAGE}} 41991 MU> (AJ&K) 2.173.=.)r11).) 6= wiwi to ionmr.) adv./ .Its h loa bhg),',/ y .0i Diu.51,i. Ribrgraoliw.Iiiqq.a la 1.70 ;:div.Tiziw-rDr)1;91'.1 1,1131;1b; -;Ard lutoqu.6111 'ton 5wril hnu 20crytt401Ciin bt,it in burl anuilsomi tityldt yd ghif.Icl rH.Iii Istylo roJimo01 i ?009'SCMR 38 Org ex,optYyt:0:! Brt. Ry.D.4 fd?,7 flzu6.v.f .1);.5qou bluer) yxn ray SkPiti316t The case TeportedinfLI).1905 Kar40,10,00A4K101454141411.11113 the principles determininglight of,perSom,riot partrAwK9cF.41*Igs44 /TW?Xf1.,4 thatspch ,person has ,a right- of appeal if his interest is adversely affected by . ,AI Wii'i .1 juglAty4entor decree. The other authorities fortqy this view. , sir livve heard the! -argutrierft.In4 Q*4947.0 11114 OR PATO:: the assistance of the learned courispl kit theipartit* si I iiiri)51w)genz friary- yr [tuna
11. At this stage, we are refrait.Ourselyeapigickssuss the ierits of thmms.,915,Aerp,girfs 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 08.2.2005 was proceeded ex pax aidafiafter 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 heirsiatreipt1ndent No. 2/defendant and they should be adveksetly~,ff ed4;bp ,ihpi e tti ntof,impugned judgment and decree, therefore, they have no alternate remedy,' but toca enge the said decree/judgment when their predeeesSOr4ini-intereifis missing since September 2004. The record further reveals that a, proper report about his missing was lodged in the concerned Police Station and his case is also pending before the Hon'ble Supreme Court altitigvitfkithei ihigthigveisoks.
12. - kictsT 14 afgetieraVprineiPle fiCine can apPeal1fretnY a decree unless he is a party, Imla:,Rifrwit).-yho is not a party to the trial proceedings in a civil suit can file an appeal if he/she is adversely affected by the Ord& hecess'aryllivihe,hlteretitif justice4 tie6ii'friiiic- hcli6g'irfifitti9FAYpelliglitbiatay,*all'tigairtektheverpettiation of injustice as well as against uselesSIPpeitsi,:'','.' -
13. In our opinion, it does not violate the commordavidodtkine that4e,right.Tizi.Appeal,iNaitsithstatitive,.Right Indikth,e,appeals cannot :be fled without a statutory sanction and such rights are given to the {:arties ate eicamining the applicability in the given circumstances of the case. The right of ( aiveat arises under the statutory provisions such as Sections 96, 100, 104 and Order XLIII, Rule 1, CPC, but it is attached to those persons, whose interests are{{BLUR PAGE}} 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 is that proceedings and who cannot otherwise attack its correctness in other proceedings. The dismissal of application under Order I, Rule 10, CPC 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 08.6.2011. .