ROOH-UL-AMIN KHAN, J.---This common judgment shall dispose of the instant revision petition, filed by petitioners Zar Farosh Khan and others and connected C.R. No,270-P/2015, as both arise out from one and the same judgment and decree of learned Civil Judge-VII dated 22.11.2013 and Additional District Judge-III dated 26.01.2015, respectively. The former decreed the suit of plaintiff- respondent Muciarab Khan and the latter while maintaining the judgment and decree of the former, dismissed the appeal of the defendants along with an application under Order-I Rule 10, C.P.C., filed by petitioners Zar Faroosh Khan etc. For their impleadment as defendants in the plaint.
2. Facts in brief forming the background of the instant revision petition are that plaintiff-respondent Muqarab Khan, filed a suit against Hamnasheen and others defendants-respondents, for declaration cum permanent injunction as well as possession to the effect that land measuring 03 Kanals 12-1/2 Marlas, bearing Khasra # 2169, 2168, 2190, 2193, 4273, 4274, Khata No,914/2200-2203, 916/2205-2206, 917-2207, situated within the revenue estate of Moza Saleem Khan District Swabi, is the ownership and in possession of the plaintiff. The defendants have no concern whatsoever with the same, therefore, exchange mutation No,10016 and sale mutation No,10017 in favour of Saddar Khan (predecessor of the defendants), are wrong, illegal and ineffective upon the rights of the plaintiff, hence, liable to be cancelled.
3. The suit was contested by the defendants-respondents, by filing written statement, raising therein variety of objections, legal as well as factual. From the divergent pleadings of the parties, the learned Trial Court formulated necessary issues, on which both the parties led their respective evidence. On conclusion of trial, the learned Trial Court vide impugned judgment and decree dated 22.11.2013, decreed the suit of the plaintiff. Feeling aggrieved from the same, defendants- respondents, filed an appeal before the learned Appellate Court. During pendency of the appeal, petitioners Zar Farosh Khan etc., filed an application under Order-I Rule 10, C.P.C. For their impleadment as defendants in the plaint. The learned Appeal Court after hearing the parties, vide impugned judgment while maintaining the judgment and decree of the learned Trial Court, dismissed the appeal of the defendants along with application of the petitioners Zarfarosh etc, hence, these revision petitions.
4. Learned counsel for the petitioners argued that petitioners Zarfarosh etc. Argued that petitioners are owners in possession of the suit land on the basis of mutation No,39 attested on 17.10.1995; that through the aforesaid mutation, respondents Nos.2 to 11 have sold the suit land to the petitioners; that the mutation has been duly incorporated in the revenue record and petitioners have constructed their houses over the suit land, but plaintiff-respondent No,1 with mala fide intention did not make them as party in the suit. He contended that valuable rights of the petitioners are involved in the matter, therefore, without affording them an opportunity of hearing would be against the principle of natural justice that no one should be condemned unheard. He submitted that the decree passed in favour of the respondent-plaintiff, is ineffective upon the petitioner on the ground of they being not as party in the suit.
5. Conversely, learned for the respondents contended that since mutations No, 10015 and 10016 attested on 17.12.1981 and No,10017 dated 20.10.1981, have already been cancelled by the learned Trial Court by holding the same to be the result of fraud and collusion, therefore, mutation No,39 dated 17.10.1995, in favour of the petitioners, which is subsequent in time from the aforesaid mutations, would have no legal effect as by cancellation of the aforesaid mutations the entire edifice built shall crumble to the ground, hence, the learned Appeal Court has rightly dismissed the application of the petitioners.
6. Arguments of learned counsel for the parties heard and record perused with their valuable assistance.
7. Since the petitioners are alleging their vested rights in the suit land on the basis of mutation No,39 attested on 17.10.1995. Their stance is that respondents Nos.2 and 3, became owners of the suit property on the strength of mutation No,10017 attested on 19.10.1981, which was given effect in subsequent Jamabandi, as such they were recorded owners in possession of land acquired. Later on, both the respondents alienated land measuring 12 Marlas 4 Sarsai in favour of petitioners and 4 Marlas 6 sersai in favour of father of the petitioners. Possession of the suit land was transferred to the petitioners by the ostensible owners on the strength of mutation No,39 attested on 17.10.95, which was incorporated in the Misl-e-Haqiat for the year 1994-95. During trial, Patwari Halqa was examined by the plaintiff as PW.1, who produced the revenue record, including Goshwara Malkiat as Exh.PW.1/1 and site plan of the disputed Khasra numbers as Exh.PW.1/6, according to which, the A petitioners are in possession of the suit property and they have constructed houses thereon. It is also manifest from the record that plaintiff Muqarab Khan is not in possession of the suit property and this fact is admitted by PW-3 Mehfooz ur Rehman by stating that he knows about his property which is in possession of defendants. He showed his ignorance as to when he lost the possession, however, it happened some 30/40 years ago. In such eventuality, the persons viz petitioners who have stepped into the property in the year 1981 and subsequently have constructed houses thereon, would be entitled to join the proceeding at any time as necessary party. Non- impleadment of such a necessary party would not only be against the principle of audi alteram partem, but shall also harmful for the plaintiff, as no effective decree can be passed in his favour, even. If he proves his entitlement. Undoubtedly, the petitioners having title on the basis of mutation duly incorporated in Misl-e-Haqiat for the year 1994-95, followed by possession in the shape of constructed houses, were falling in the ambit of necessary parties, but they have not been arrayed as party in the suit filed by plaintiff-respondent No,
1. It is C settled law that where a necessary party is not impleaded in the suit, the decree may not be binding on the said party. In the above eventualities, the learned Appal Court ought to have afforded an opportunity of hearing to the petitioners instead of knocking them out technically. The principle of natural justice that no one should be condemned unheard is jealously and vigorously followed by the worthy superior Courts with a view that justice should not be slaughtered in the altar of technicalities. Under Order I Rule 10, C.P.C., Courts have vested with wide discretion to add parties at any stage of suit to avoid multiplicity of proceedings. Where their is non joinder of necessary party i,e, a party who ought to have been joined and in whose absence effective decree cannot be passed, the suit ultimately fails, unless such necessary parties are made parties to the suit. It has been held by the august Apex Court in case titled, "Ghulam Ahmad Chaudhary v. Akbar Hussain through Legal Heirs and another" (PLD 2002 Supreme Court 615), that power of adding parties is not a question of initial jurisdiction but of judicial discretion which has to be exercised having regard to all the facts and circumstances of the case. High Court is fully competent to add or strike out name of any person to the suit for a just, fair and effectual adjudication of the controversy.
8. So far as the argument of learned counsel for the respondents that petitioners have also filed application under section 12(2), C.P.C., which is still pending before the learned Appellate Court/District Judge is concerned, suffice it to say that section 12(2), C.P.C. And Order I, rule 10, C.P.C., provides two distinct remedies on different grounds and different circumstances. Both these remedies can be availed at the same time by a party, as the former provides grounds for setting aside the decree obtained on the basis of fraud, misrepresentation or want of jurisdiction, while the latter gives right to a party having interest in the property in the suit and who has not been impleaded as party in the suit. The above mentioned remedies are concurrent and initially not exclusive of each other, however, where each of these remedies was fully exhausted, the other remedy for the same issue cannot be permitted to re-agitate. However, the above noted principle would be applicable to the instant case for the reason that though, the petitioners have availed both the remedies, but none of the two remedies has been fully exhausted by them as according to statement of learned counsel for the respondents, application of the petitioners under section 12(2), C.P.C. Is still pending before the learned Appellate Court without any proceedings. In the circumstance, in my view, the application under section 12(2), C.P.C. At the most would become infructuous, after decision of the instant revision petition but would not bar the remedy agitated in the instant petition under Order I, Rule 10, C.P.C.
9. For what has been discussed above, the learned Appeal Court by not adverting to the law and view of the Hon'ble apex Court on the subject, landed in the field of error by dismissing the application of the petitioners. Resultantly, by allowing the revision petition, the application filed by petitioner Zarfarosh etc. Under Order I, Rule 10, C.P.C., for impleadment as party is accepted. Hence, the impugned judgments and decrees of the two Courts below are set-aside. The petitioners are directed to be impleaded in the panel of the defendants in the suit. The case is remanded to the learned Trial Court where respondent-plaintiff Muorab Khan shall file an amended plaint, wherefrom the Court shall proceed with the case de novo. On receipt of the record the learned Trial Court shall summon the parties.
10. On setting aside of the judgment and decree of the two Courts below, connected C.R. No,270- P/2015, filed by Hamnashin etc. Defendants have become infructuous, which stands dismissed as such. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.