Muhammad Khalid Mehmood Khan, J. This revision petition has been directed against the judgment and decrees dated 26.1.2010 and 19.3.2014 passed by a learned Civil Judge and learned Additional District Judge respectively whereby the respondents' suit was decreed and petitioners' suit was dismissed. The petitioners have filed an application for permission to implead the legal heirs/legal representatives of Noor Muhammad namely Naseem Fatima, Sharyar Muhammad and Asfand Yar the widow and sons in the memo of parties as their names have not been typed in the memo of parties due to typographical mistake; the respondents have opposed the application and submits that a valuable right has been accrued in fvaour of the respondents which cannot be taken away by allowing the petitioners to implead the legal representatives of deceased respondent; the defect in the filing of revision is not cure-able, the entire revision petition is bound to be dismissed. Learned counsel has relied on Rehmat Din and others v. Mirza Nasir Abbas and others (2007 SCM R 1560), Atta-ur-Rehman v. Muhammad Anwar Khan and others (2012 M LD 1282) and The Province of East Pakistan v. Major Nawab Khawaja Hasan Askary and others (PLD 1971 SC 82).
2. The argument of learned counsel for petitioners is that the non inclusion of the name of legal representatives of Noor Muhammad is a typographical mistake and it can be condoned by the court even under suo motu jurisdiction under Section 153 of the Code of Civil Procedure, 1908; Learned counsel submits that certified copy of decree sheet is available on record and decree is under challenge in the revision and the decree sheet find mentioned the name of all legal heirs of Noor Muhammad.
Learned counsel has relied on Pakistan Water and Power Development Authority and another v.
Alam Khan (PLD 1991 SC 374), Mst.Sardar Begum v. Muhammad Anwar shah and others (1993 SCM R 363), Mst.Maqbool Begum etc. v. Gullan and others (PLD 1982 SC 46), Abdul Ghafoor and another v.
Zahoor Ahmad through legal heirs and 10 others (2011 YLR 2718), Sher Muhammad and 27 others v.
Muhammad Mumtaz-ul-Islam through legal heirs and 6 others (2001 M LD 1964), Khushi Muhammad v. Settlement Authorities etc. (PLJ 1975 Lah. 8) and Sadiq Shah v. Ghulam Nabi and another (2012 YLR 2564).
Reliance has also been placed on Kanshi Ram-Munshi Ram v. Rama Mal-Gobinda Ram (AIR 1932 Lahore 183), Kishan Chand v. Mohammad Husain (AIR 1942 Lahore 94), Arura v. Karam Din (AIR 1947 Lahore 76) and Badri Prasad v. Amjid Ali and others (AIR 1933 Allahabad 294).
3. The precise argument of learned counsel of respondent No.1 to 3 is, where any necessary party has been omitted to be impleaded as party in revision within the prescribed period of limitation the same could not be impleaded afterwards, as valuable right had accrued to the respondent, The memo of parties shows that petitioner has not impleaded the legal heirs of Noor Muhammad who were party in the first appeal as is evident from the decree sheet, the petitioner has also not filed any application for condonation of delay, The court can not allow to implead the legal representatives of Noor Muhammad after the expiry of limitation period provided for filing the revision petition.
4. The question is whether the jurisdiction to bring on record the party omitted inadvertently, vested, in revisional court or not?, whether the act of petitioner not to implead the legal representatives of deceased party to the suit inadvertently enables the revisional court to dismiss the revision petition or whether the revisional court has the powers under section 153 C.P.C to assume suo motu jurisdiction and to allow to implead the omitted legal heir/ legal representatives of deceased defendant.
5. The Petitioners filed suit for declaration, declaring that as per the exchange deed No. 3649 registered on 24.9.1999 and mutation No.615 attested on 17.12.1999 of the land detailed in the plaint is their exclusive land and respondents have no concern with the land in dispute and the orders of Member Board of Revenue, dated 7.2.2007, order dated 14.1.2003 of EDO(R), order dated 25.2.2003 of EDO(R) Sargodha and order dated 6.11.2003 of EDO(R) Sargodha Division be declared without lawful authority, in suit M/s Allah Bakhsh, Noor Muhammad and Muhammad Azam (respondent No.1,2,3) were arrayed the defendants/party to the suit. Allah Bakhsh, Noor Muhammad and Muhammad Azam filed a suit against the petitioners and respondents No.4 to 8, the learned trial court consolidated the two suits and vide judgment and decree dated 26.1.2010 decreed the respondents' suit and dismissed the petitioners' suit. The Petitioners filed two appeals, both were dismissed on 19.3.2014. It appears that during the pendency of suit one of the Plaintiff/defendant Noor Muhammad died and his legal representatives/legal heirs namely Nasim Fatima, Shehryar and Asfand Yar, the widow and sons were brought on record. In appeal the legal representatives of deceased respondent were party to the appeal but in revision petition instead of arraying the legal representative/legal heirs of deceased Noor Muhammad, Noor Muhammad was made party to the revision. The respondents No.1 to 3 raised the preliminary objection that revision petition is liable to be dismissed as the revision has been filed against the dead person, the petitioners filed an application under Order XLI Rule 20 read with section 151 code of civil procedure for impleading the legal heirs of Noor Muhammad stating that due to typographical mistake the name of legal heirs have not been typed in the array of respondent, the non inclusion of the names of legal heirs/legal representatives of Noor Muhammad is inadvertent and unintentional, the court in its revisional jurisdiction has the powers to allow the petitioners to file the amended memo of parties which the petitioner has already placed on record.
6. It seems that the petitioner, while filing revision, in the memo of parties, omitted to type the names of legal representatives of Noor Muhammad and typed Noor Muhammad only. The above omission, according to the petitioner, had occurred due to inadvertence and is not intentional.
7. The argument that where a party is not impleaded in appeal within the period of limitation, he can never be deemed to be an interested party in the result of the appeal, is no longer an inviolable rule. The power contained in Order XLI Rule 20 CPC can be exercised by the Court suo motu or at the behest of a party.
8. First of all it has to be seen that appeal is a right and revision is the supervisory jurisdiction of court; hence while deciding the petition for impleading the legal heirs of deceased respondent/defendant we have to keep in mind the two separate jurisdiction, there is distinction between adding or substituting a party and bringing on record legal representatives of a deceased party, hence the first question is Section 22 of the Limitation Act, 1908 is applicable in which circumstances and where; For better appreciation Section 22 of the Limitation Act, 1908 is reproduced as under; "22. Effect of substituting or adding new plaintiff or defendant. (1) Where, after the institution of a suit, a new plaintiff or defendant is substituted or added, the suit shall, as regards him, be deemed to have been instituted when he was so made a party.
(2) Nothing in subsection (1) shall apply to a case where a party is added or substituted owning to an assignment or devolution of any interest during the pendency of a suit or where a plaintiff is made a defendant or a defendant is made a plaintiff."
9. From the bare reading of the above provision of law it is clear if a party is added to a pending suit as a defendant, the suit so far as the added defendant is concerned for the purpose of limitation, shall be deemed to be instituted on the date when the defendant is impleaded. The provision of law is clear that it is applicable only where a new defendant is added, but where the legal representatives of a deceased plaintiff or defendant are brought on record under Order XLI Rule 20 CPC, Section 22 of the Limitation Act is not applicable. It may be pointed out that Prior to the promulgation of the Law Reforms Ordinance, 1972 (Ordinance XII of 1972) under Rules 3 and 4 of Order XXII, C.P.C., the effect of omission to bring the legal representatives of a deceased plaintiff or defendant was that the suit used to abate against the person left. But after amendment in law no suit can abate for not impleading the legal heirs/legal representative of deceased defendant or plaintiff and a valid decree can be passed even in the absence of the legal representatives of a deceased defendant. It is thus clear that Court enjoys the power under Order XLI Rule 20 read with section 153 CPC to allow the impleading of the legal representatives/ legal heir.
10. It is settled principle of law that a party should not be denied a relief on account of technicalities of the procedural law, as the same are framed for the purposes of regulating the legal proceedings, they are intended and designed to foster the cause of justice rather than to defeat it.
11. The Hon'ble Supreme Court of Pakistan in Mst. Sardar Begum v. Muhammad Anwar Shah etc. (1993 SCM R 363) held as under: - "5. The view taken by the Privy Council in the case of V.P.R.V. Chockalingam Chetty (supra) has not been dissented from by this Court, but has been explained in the case of Said Muhammad (supra) and it has been pointed out therein that preponderance of opinion, discernible from the case law discussed, is against the rigid view taken in Labhuram's case by the Full Bench of the Lahore High Court. In the above case, it has also been held by this Court that the rigidity in the application of Order XLI, Rule 20, C.P.C. as concluded in Labhuram's case that where a party is not impleaded in appeal within the period of limitation, he can never be deemed to be an interested party in the result of the appeal, is no longer an inviolable rule. It has been further held that the power contained in Order XLI, Rule 20, C.P.C., can be exercised by the Court suo motu or at the behest of a party. We may also observe that in Pakistan Water and Power Development Authority's case (supra), in which in place of WAPDA, the Chairman of WAPDA, was impleaded as the defendant, amendment as to the description of the defendant was allowed by the Courts below after the expiry of the limitation period on the ground that it was not a case of addition or substitution of a new party as to attract the principle laid down in section 22(1) of the Limitation Act, but it was merely correction of the description of a party and, therefore, question of limitation period was not involved. This Court, while declining petition for leave to appeal, accorded its approval to the above approach of the Courts below and further observed that second part of section 153, C.P.C., which inter alia empowers the Court to make all necessary amendments at any time for the purpose of determining the real question or issue, was attracted to:
6. We are inclined to hold that there is marked distinction between adding or substituting a party and bringing on record legal representatives of a deceased party. The provision of section 22 of the Limitation Act which provides that if a party is added to a pending suit as a defendant, the suit so far as he is concerned for the purpose of limitation, shall be deemed to be instituted on the date when he is impleaded, cannot be pressed into service in case when legal representatives of a deceased plaintiff or defendant are to be brought on record under Order 22, C.P.C. We may further observe that prior to the promulgation of the Law Reforms Ordinance, 1972 (Ordinance XII of 1972) hereinafter referred to as the Ordinance, by virtue of Rules 3 and 4 of Order 22, C.P.C., the effect of omission to bring the legal representatives of a deceased plaintiff or defendant was that the suit used to abate against him. But this has been done away by the Ordinance and, therefore, after the enforcement of the Ordinance, no suit can abate on the above ground. The Legislature in its wisdom thought it proper not to allow abatement of a suit on account of omission to bring legal representatives of a deceased plaintiff or defendant on record. Now a valid decree can be passed even in the absence of the legal representatives of a deceased defendant. This is subject to the right conferred on the legal representatives to apply for setting aside judgment/decree under sub- rule (2) of Rule 9 of Order XXII, C.P.C. Furthermore, newly added Rule 26 of Order VII and Rule 13 of Order VIII, C.P.C. enjoin a plaintiff and a defendant to file a list of his legal representatives and to give the name and address of the person, who would intimate to the Court about the death, while presenting plaint and filing of written statement, respectively."
12. The argument of Learned counsel of petitioner is that the names of legal heirs of Noor Muhammad could not be typed in the array of respondents and the mistake is even curable by the court itself under Section 153 of the CPC, however as an abandoned precaution the petitioner has filed application under Order XLI Rule 20 CPC, for impleading the legal representatives of defendant Noor Muhammad, It is the intention of law that court instead of deciding the dispute between the parties on technical grounds should prefer to decide the matters on merits. It is the duty and obligation of the revisional Court to exercise its discretion keeping in view the principle of equity and fair play in judicial manner and has no power to exercise discretion arbitrarily.
13. There is another aspect of this case, the present petition is not an appeal and is revision under Section 115 of the Code of Civil Procedure, which is the supervisory jurisdiction of the Court, the court also enjoys suo motu powers under Section 115 of the CPC in addition to Section 153 of the Code of Civil Procedure. The court in its supervisory jurisdiction can correct any illegality of the court below and also condone any delay for removing the technicality. The decree sheet is attached with the petition which shows that the legal heirs of Noor Muhammad are party to the appeal, It is thus clear that petitioner is not introducing any new legal heirs or party to the petition and is praying for correcting the typographical mistake. The petitioner is however liable to be burdened with costs of the requested permission, in view of the above the application under Order XLI Rule 20 CPC (C.M.No.1-C/2015) is allowed subject to payment of Rs.25,000/- as costs.
14. The case of respondents is that they agreed to sell their agricultural land detailed in the plaint to petitioners against consideration of Rs.2,160,000/-, their land was mortgaged with the Agricultural Development Bank of Pakistan (ADBP) at the time of entering into sale agreement and approximately Rs.1,100,000/- was outstanding being the mortgage money, the petitioners paid Rs.
108,000/- to respondent in the shape of cash and a plot of land measuring 10 Marla valuing Rs.160,000/-, the petitioner agreed to adjust the loan liability of ADBP and agreed to pay the balance consideration of Rs. 832,000/- at the time of execution of sale deed or attestation of sale mutation. The petitioners requested the respondents to execute the general power of attorney for completing the adjustment of the loan liability and to do other necessary acts for finalization of sale deed. The petitioners under the garb of power of attorney got executed Exchange Deed (Ex.D- I) without the knowledge and consent of the respondents by practicing fraud. The petitioners' case is that they exchanged their urban land measuring 10 Marla with the respondents agricultural land measuring 4891/2 Kanal, It was not in their knowledge that land is mortgaged with ADBP. The respondents have sold petitioners land measuring 10 Marla on the basis of exchange deed, this very act of respondents is sufficient to prove that the exchange deed was properly executed between the parties. The revenue authorities wrongly cancelled the mutation of exchange in favour of the petitioners and is liable to set aside.
15. To establish the commission of fraud in execution of exchange deed Ex.D-I the respondents examined marginal witness of the exchange deed Salah Muhammad as PW-2 who deposed that the transaction of sale of land was agreed Rs.2,160,000/-, the petitioners paid Rs.108,000/- cash and a plot of 10 Marla, they have not paid any other amount, the balance amount was paid or not that is not in his knowledge, the petitioners agreed to pay the bank loan, till today the respondents are in possession of the land. In cross examination petitioners asked question and the court noted the said question as under:- "It is correct that scribe of the power of attorney explained the document that you signed the document, yes scribed read over the power of attorney to us and then we signed the document, the scribe has not committed any fraud with them".
16. This question of the petitioners to one of the marginal witnesses clarifies the kind of document agreed to be signed between the parties. The second marginal witness appeared as DW-5, he admits in cross examination that Haji Fazal Ahmad and Ijaz Ahmad were the purchasers; again said transaction was of exchange; he did not remember the name of vendor; no amount was paid before him; he is not aware who scribe the document and when he scribed the document, he is not aware whether any other witness signed the document as marginal witness or not.
17. From the statements of two marginal witnesses it is clear that exchange deed was never agreed to be executed between the parties. On the question of petitioner PW-2 one of the marginal witnesses deposed that scribe has read over to him the power of attorney and he signed the power of attorney, but the question remain unanswered how the respondents became the owner of urban plot of petitioners and how they sold the plot without the sale deed in their favour, the respondents admits that petitioners transferred plot of land measuring 10-marla against consideration of Rs.160,000/- but the evidence of both the parties is silent how the respondents became the owner of plot and how they sold the same. The only document on record is the exchange deed Ex.D-I which shows that plot was transferred to respondents and agricultural land was transferred to petitioners. The respondents' claim is that land was mortgaged with ADBP, the petitioners deny this claim, the reason for not attestation of the mutation of exchange in favour of petitioners is that land was mortgaged with ADBP as under law mortgage property could not be sold. The main document which is relied by the petitioner Ex.D-I itself provides that land of respondents is mortgaged with ADBP, hence the petitioners claim of their ignorance about the mortgage of land is proven false, hence the petitioners claim that they are bona fide purchaser for value without notice is wrong and is against the facts, even otherwise the transaction is not of sale and purchase but is of exchange. From the evidence it is proved that respondents agreed to sell their agricultural land detailed in the plaint against consideration of Rs.2,160,000/-, the land was mortgaged with ADBP against a loan of Rs.1,892,000/-, out of which the respondents have paid Rs.600,000/- and at the time of entering into bargain Rs.1,100,000/- approximately outstanding being the mortgage money.
The petitioners agreed to pay the agreed sale consideration as under: "Rs.180,000/- Urban plot of land valuing Rs.160,000/- adjustment of loan liability outstanding with ADBP and balance of Rs.832,000/- at the time of execution of sale deed or attestation of sale mutation. It seems that petitioners with the mala fide intention tried to get the entire property against an urban plot of 10-marla and cash of Rs.180,000/-, he managed to get registered an exchange deed under the pretext of general power of attorney, they informed the respondents that they have to settle the loan liability with ADBP and for negotiating the settlement they want power of attorney but instead of preparing the power of attorney they got prepared an exchange deed with the help and connivance of deed writer, as one of the marginal witness of Ex.D-I (PW-2) deposed in cross examination as under: {{URDU TEXT}}
18. The above said deposition of PW-2 who is marginal witness unearths the collusion of scribe of Ex.D-I and the petitioners. The petitioners are not claiming that value of their plot of land measuring 10-marla is Rs.2,160,000/- or equal to the amount payable after adjustment of loan, rather the petitioners are claiming that land was not mortgaged with the ADBP. In the absence of petitioners claim that their plot was valuing Rs.2,160,000/- how it can be believed that respondents will agree to exchange their huge land against a very small urban plot of 10-marla. From the above discussion it is clear that petitioners fraudulently managed the execution of exchange deed. It is an admitted fact that possession of the land is still with the respondents. The revenue authorities have set aside the mutation of exchange, it is also proved that respondents have adjusted the loan of ADBP. Even if for the sake of arguments it is admitted that parties executed exchange deed, the exchange provides that land is mortgaged with the ADBP why the respondents will pay the mortgage money if they have exchanged their property with a plot of 10-marla land. The other marginal witness appeared as DW-5, in cross examination, he narrated a different story that petitioners gave two plots in exchange of 63/64 acres of land, he is not even aware whether the document was presented on the same day or any other day. The statement of DW-5 on the face of it is proven tutored. Dw-2 stamp vendor appeared and deposed that stamp valuing Rs.8640/- for Fazal Ahmed etc. issued, in his Register only Fazal Ahmed signed the document, the purpose of the stamps is also not mentioned.
19. There is another aspect of the case, the suit land is admittedly mortgaged with ADBP against finance under Section 23(1) of the Financial Institution (Recovery of Finances) Ordinance, 2001, the sale of mortgage property is void after issuance of notice under sub-Section (5) of Section 9 of FIO, no doubt under Transfer of Property Act, the mortgage property could be sold with mortgage charge and mortgage charge will continue against the mortgage property but if the property is mortgaged with any Financial Institution against the finance, the sale under FIO 2001 is void, as FIO is special law, it will prevail upon the general law; hence any alienation of mortgage land even otherwise is void.
20. The respondents have admittedly sold the petitioners plot, definitely on the basis of exchange deed as the exchange deed has been declared void the respondents are bound to return the amount of Rs.108,000/- and the plot of land of 10-Marla. The respondents have sold the plot and are not in position to return the plot and as such they are liable to pay the market price of the plot, the respondents will thus return an amount of Rs.108,000/- with mark up as ordered by the learned trial court and will pay the market price of the plot of land of 10 Marla subject matter of exchange deed. The market price will be on the day of payment.
21. The upshot of the above discussion is that petitioners have failed to point out any legal infirmity in the judgment of two courts below which can be interfered in revisional jurisdiction of this Court.
The petition thus fails and is dismissed with the modification that the respondents will pay the market price of the plot of land measuring 10 marla detailed of which is available in the plaint.