' ABDUL LATIF KHAN, J.---Through the instant revision petition, the petitioner has called in question the judgment and decree dated 2-12-2010 passed by the learned Additional District Judge-I, D.I.Khan vide which his appeal against the judgment and decree dated 15-10-2009 of learned Civil Judge-III, D.I.Khan, dismissing his suit for specific performance of agreement dated 24-3-1997, was dismissed.
2. At the very outset, learned counsel for the respondents raised preliminary objection to the effect that necessary parties to suit were not impleaded in appeal before learned appellate Court which renders the appeal incompetent and appeal was dismissed rightly and as such instant petition is not competent.
3. Conversely, learned counsel for the petitioner contended that though petitioner failed to implead the necessary parties but appellate Court has travelled beyond jurisdiction to dismiss appeal on this ground and failed to appreciate evidence available on file and both the Courts have wrongly non-suited the plaintiff without observing legal and factual aspects of the case. He also referred to the merits of the case and argued that suit filed by the petitioner was based upon agreement to sell dated 24-3-1997 through which landed property measuring 517 kanals at the rate of Rs,1880 per kanal was sold for total consideration of Rs,9,71,960, out of which partial payment of Rs,4,49,860 was made and rest agreed to be paid by 25-7-1997 and in case of failure, agreement shall stand' cancelled and if no transfer made by vendor through mutation, would pay double amount of sale consideration but trial Court non-suited the plaintiff without any justification and appellate Court has given no findings on merits, hence, liable to be reversed.
4. I have given my anxious consideration to the arguments of learned counsel for the parties and perused the record with their able assistance.
5. The perusal of record reveals that Mst. Allah Behtari was arrayed as defendant No,6 who died during pendency of lis and her legal heirs were impleaded in the case vide order sheet dated 16-2- 2009, namely Ashraf Ali, son, Mst. Salma Bibi, Mst. Amina Bibi, Mst. Ambrina Bibi, Mst. Rehana Bibi, Mst. Rukhsana Bibi and Mst. Nahida Bibi as daughters. The suit was dismissed by trial Court against which appeal filed by petitioner but failed to implead all the legal heirs of defendant No,6 (deceased) and only impleaded Ashraf Ali, her son and three daughters and ignored other two daughters, having same legal status as that of those who were impleaded and as such were necessary parties to the appeal. The petitioner had shown lukewarm attitude as he was so careless in the process of preparation of memorandum of appeal that he left over not only one respondent but two respondents at a time, which cannot be termed as accidental slip or omission. Such being case of clear negligence and not a bona fide act of petitioner.
6. Order I Rule 10 of the C.P.C. Is reproduced below for ready reference:-- "Where a suit has been instituted in the name of the wrong person as plaintiff or where it is doubtful whether it has been instituted in the name of the right plaintiff, the Court may at any stage of the suit, if satisfied that the suit has been instituted through a bona fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as the Court thinks just."
7. Section 96, C.P.0 is reproduced as under:- "(1) Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorized to hear appeals from the decisions of such Court.
(2) An appeal may lie from an original decree passed ex parte.
(3) No appeal shall lie from a decree passed by the Court with consent of parties."
8. Section 115, C.P.0 is reproduced below for convenience:- "(1) The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears.
(a) to have exercised a jurisdiction not vested in it by law, or
(b) to have failed to exercise a jurisdiction so vested, or
(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity."
9. Order XLI, Rule 20, C.P.0 is as under:- "Where it appears to the Court at the hearing that any person who was a party to the suit in the Court from whose decree the appeal is preferred but who has not been made a party to the appeal, is interested in the result of the appeal, the Court may adjourn the hearing to a future day to be fixed by the Court and direct that such person be made as a respondent."
10. Article 152 of the Limitation Act is reproduced below for ready reference:- "Under the Code of Civil Procedure, 1908 (V of 1908) to the Court of a District Judge 'within thirty days from the date of the decree or order appealed from."
11. The wisdom behind the plea is that persons/decree holders, who were not arrayed as party to appeal and were omitted, joint decree became final as the same cannot be split, therefore, no chance can be given to them and that too after the period of limitation. The revisional Court too cannot allow the impleadment of such omitted parties as a vested right accrued in their favour and would amount to give premium to one's own neglect to the detriment of another, if allowed, which is neither the mandate of law nor equity. The provisions of Limitation Act and Civil Procedure Code relating to filing of appeal, subject to certain limitations, cannot be ignored by the appellate Court with special reference to vested rights accrued in favour of other party due to omission on part of petitioner, as the same cannot be taken away. The appellate Court had no jurisdiction under Order XLI, Rule 20, C.P.C. To allow the impleadment of those respondents omitted by the petitioner after the period of limitation prescribed for filing of appeal, as these provisions are attracted when appeal is pending but when petitioner impleads only few and omit other respondents, holding a joint decree then there is no proper appeal pending before the Court of appeal. It is also a misconceived contention that appeal shall fail to the extent of share of those not impleaded in appeal as joint decree has to stand or fall as a whole. Reliance is placed on Mst.
Maqbool Begum's case (PLD 1982 SC 46), wherein their Lordships held that:- "As is evident the view expressed in the above paragraph is quite in accord with long list of precedents quoted therein. In our opinion this was a clear case of an incompetent and not maintainable appeal due to non-impleadment of necessary parties, and, as the subject-matter of the dispute namely the impugned sale of year 1951 in favour of Mohammad Yaqoob (vendee/defendant) (now represented by some of his legal representatives namely the petitioners) was an indivisible transaction, therefore, the High Court was justified in holding that the appeal had abated in tow and was not maintainable for the fatal infirmity hereinbefore mentioned. It was argued that if some of the heirs of the vendee had not been impleaded, at the most it could affect only the shares of the non-impleaded heirs inasmuch as accepting to Mohammadan Law every heir succeeds only to the extent of his respective share along with others though as tenants in common. The contention has no merit inasmuch as the present case is to be examined from the point of view of the oneness of the sale above mentioned and not put off that sale which was to stand or fall as a whole. The precise facts of the case are that Gullan (vendor/plaintiff) filed a civil suit for a declaration that a sale alleged to have been made by him in favour of Mohammad Yaqoob (vendee) was all fictitious without consideration and nullity in the eye of law. The suit was dismissed by the learned Civil Judge on 17-5-1962, but on appeal by Gullan was decreed by the learned Additional District. Judge on 29-4-1965, who reversed the judgment and decree of the learned trial Court. It was against the last mentioned judgment and decree of the learned Additional District Judge that the petitioner filed a regular second appeal in the High Court, particulars and result whereof have been mentioned, above. The sale as is obvious had been .Declared to be fictitious, invalid and without consideration as a whole. If the plea of the learned counsel is accepted and it is held that the appeal abated or was incompetent qua the portion of the sale property proportionate to the shares of the non impleaded heirs, then it will tantamount to holding the sale as valid in part and invalid quo another part. This would end in contradictory decrees and as such the High Court was justified to hold the appeal as incompetent as a whole. Learned counsel wanted to refer to Order I, Rule 10, Order XLI, rule 4, Order XL1, rule 20, and sections 107, 151, 152 of the C.P.C. But on the peculiar facts and circumstances above- mentioned in our opinion these cannot avert the result and fate of their incompetent appeal in the High Court. The reasons given for non-impleadment of the two necessary parties (at least qua Ibrahim) are not satisfactory and the defect of his non-impleadment alone was sufficient to render the appeal as not maintainable and incompetent as held by the High Court. "
' Reliance is also placed on Abdul Qadir's case (PLD 1987 Lahore 232), wherein it was observed as under:- "It may also be- observed, that in the case in hand not only the petitioners failed to initially implead necessary respondents, viz. Mukhtaran Bibi and Iqbal Bibi the joint decree-holders, but despite the fact that the above fatal omission had come to their knowledge before passing of the impugned judgment by the learned District Judge, they even then did not rest at that and the petitioners continued to be negligent in this regard inasmuch as the present revision was also filed by them without impleading Mukhtaran Bibi and Iqbal Bibi as a party thereto and it was at quite a late stage that they filed a misconceived application for correction of the sheet bearing names of the parties so as to add Mukhtaran Bibi and Iqbal Bibi as respondents. The above facts, therefore, clearly establish the present contumacious neglect of the petitioners in prosecuting their cause before the lower Appellate Court and in this Court. Such a neglect does not merit to be excused in any circumstance especially when by the neglect, a valuable vested right has accrued to the other party. The allowing of the impleadment Mukhtaran Bibi and lqbal Bibi by accepting his revision in the attendant circumstances narrated above would to say the least amount to giving premium to one's own neglect to the detriment of another, which would neither be warranted in law nor in equity.
' Adverting now to the contention of the learned counsel for the petitioners that the provisions of Order XL1, Rule 20 of the Code of Civil Procedure should have been resorted to by the lower Appellate Court, I suffice by observing that the lower Appellate Court had no jurisdiction under Order XLI, Rule 20 C. P. C, to implead persons omitted from being impleaded after the period of limitation for filing the appeal had expired and moreso when there was no request before him either to do so.
' I may also add that the provisions of Order XLI, Rule 20 C.P.0 are not intended to override other provisions regarding the filing of appeal and the limitation applicable thereto as contained in the Code of Civil Procedure and the Limitation Act. As already pointed out above the right that had accrued to the decree-holders who were omitted from being impleaded as a party to the appeal by the neglect of the petitioners in filing a proper appeal against them in accord with the provisions of law is a valuable right which could not be lightly treated or taken away."
' In Sher Mohammad's case (2001 MLD 1964 Lahore) it was held that:-- "Even before this Court while filing the revision petition, Muzaffarul Islam, one of the legal heirs of Mg. Latifun Nisa, who had died pending the appeal before the First Appellate Court was left out and was not impleaded as party. Omission to implead such a necessary party renders the appeal incompetent. Such an omission of a necessary party from the appeal and application for impleading made after the limitation had run was found to be fatal in Mst. Mehr Nishan's case (1986 CLC 1706).
' Perusal of the file in the present case shows that the revision petition was initially filed on 23-2- 1988 but no steps were taken by the petitioners to implead Muzaffarul Islam till 14-5-1989 when C.M.No,3-C of 1989 was filed. It shows a gross negligence and even lack of diligence in pursuing and prosecuting the lis. Such a lapse cannot be condoned as valuable right had accrued to the other side with the passage of time. The petition is liable to be dismissed for this reason.
' As a result of the above, the petition is liable to be dismissed for the reason that the appeal, filed by the petitioners before the First Appellate Court was incompetent as was found by the learned Additional District Judge. There is no illegality committed by him, his judgment is maintained. And also for the reason that the petition before this Court was also filed without impleading Muzaffarul Islam a necessary party who was respondent before the First Appellate Court. Civil Miscellaneous No,1-C of 1989 is thus accepted to this extent and Civil Miscellaneous No,3-C of 1989 is dismissed.
Whether it be revision petition or appeal, for the above reasons the same is liable to be dismissed, therefore, Civil Miscellaneous No,4-C of 1989 has become redundant and is dismissed as infructuous."
12. The perusal of instant revision petition reveals that despite dismissal of appeal of petitioner being as non-maintainable by the appellate Court on the score of non-impleadment of necessary parties to the appeal, the petitioner has not impleaded two respondents namely Mst. Naheed Bibi and Mst Rukhsana Bibi in the instant petition, which shows the non serious attitude of the petitioner.
No application for the impleadment of these omitted respondents has been filed before this Court.
Omission of their impleadment makes the instant petition incompetent and non-maintainable.
This act of petitioner amounts to gross negligence and deserves no leniency in condonation of such lapses, as valuable right has been accrued to the other side.
13. For the aforementioned reasons, instant petition being incompetent and non-maintainable on account of non-impleadment of Mst. Rukhsana Bibi and Mst. Naheed Bibi as respondents and is liable to be dismissed on the score too that appeal filed by the petitioner before First Appellate Court was incompetent and rightly found by the learned Additional District Judge, as such. No illegality committed by the appellate Court, therefore, his judgment is maintained and instant petition is accordingly dismissed with costs.