IKRAMULLAH KHAN, J.- Through the instant writ petition, under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, petitioner has prayed for the following relief:- "It is, therefore, respectfully prayed that on acceptance of the instant writ petition, the judgments and orders of both the courts be set aside and the suit of the petitioner be decreed with costs throughout ".
02. Brief facts of the case are that petitioner filed a suit against respondents in representative form, which was dismissed vide Order dated 19.07.2012 by the learned Civil Judge-I/JM, Hangu.
Feeling aggrieved from the said order dated 19.07.2012, preferred Civil Revision, which was also dismissed vide Judgment dated 22.02.2013 by the learned Additional District Judge, Hangu. Hence, the instant Writ Petition.
3. I have heard learned counsel for the parties and have gone through the record.
4. The bare reading of the impugned judgment reveals that petitioner has been non-suited on the ground that the suit is instituted in representative capacity, while the petitioner has prayed relief against plaintiff No.2 which is against the provisions contained in Order-1 Rule-8 CPC.
5. Although petitioner has not asked for relief on behalf of plaintiff No.2 but this irregularity could not be a ground for dismissal of the suit.
6. The learned Trial Court had dismissed the suit on grounds which was not permitted by law, however, in case of impleading name of wrong plaintiff, the provisions contained in Order-1 Rule-10 CPC comes into operation which reads as:- "10. Suit in name of wrong plaintiff.- 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.
Court may strike out or add parties.- (2) The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely, to adjudicate upon and settle all the questions involved in the suit, be added.
(3) No person shall be added as a plaintiff suing without a next friend or as the next friend of a plaintiff under any disability without his consent.
(4) Where defendant added, plaint, to be amended.- Where a defendant is added, the plain t shall, unless the Court otherwise directs, be amended in such manner as may be necessary , and amended copies of the summons and of the plaint shall be served on the new defendant and, if the Court thinks fit, on the original defendant.
(5) Subject to the provisions of the Limitation Act, 1877 (now Limitation Act, 1908), Section 22, the proceedings as against any person added as defendant shall be deemed to have begun only on the service of the summons .
7. However, the learned Trial Court failed to exercise its due jurisdiction in this regard.
8. The learned Appellate Court has dismissed the revision petition also on the ground that dismissal of suit in term of Order-1 Rule-8 CPC was appealable.
9. The provisions contained in section 96 CPC provides right of appeal against the original decree, while the decree is defined in subsection-2 of section-2 of CPC, which reads as:- "2 (2) "Decree" means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint [the determination of any question within section 144, and an order under rule 60, 98, 99, 101 or 103 of Order XXI] but shall not include--
(a) Any adjudication from which an appeal lies as an appeal from an order, or
(b) Any order of dismissal for default" .
10. The above mentioned definition of decree does not include dismissal of a suit on account of mis-joinder or non- joinder of parties in term of either Order-1 Rule-8 or Order-1 Rule-10 CPC.
11. While it is mandatory provision of law envisaged thereunder Rule 9 of Order-1 CPC that no suit shall be defeated by reason of the mis joinder or non-joinder and the Court may in every suit deal with the matter in controversy so far as regards the right and interests of the parties actually before it.
12. The provisions contained in section 104 and Order-43 of CPC does not provide right of appeal where a suit was dismissed in term of Order-1 Rule-10 CPC. However, sub-section 2 of section 115 CPC, make such order to be revisable by the District Judge. Revisions always lies in view of clause (a) of sub-section (1) of section 115 CPC against any judgment or order which is decided by subordinate court to have exercised a jurisdiction not vested in it by law.
13. As discussed hereinabove, and keeping in view, the provisions contained in Rule-9 of Order-1 CPC, the learned Trial Court was not within his jurisdiction to dismiss the suit of petitioner for mis-joinder or non-joinder or impleading name of wrong plaintiff etc, therefore, such order or judgment rendered without jurisdiction, where no express right of appeal is conferred on an aggrieved person, may file revision petition against void order.
14. Therefore, this Writ Petition is admitted and allowed. The impugned Judgments are set aside and the case is remanded to learned Trial Court to transpose the parties in view of Order-1 Rule-10 CPC as well as to exercise its inherent jurisdiction in term of section 151 CPC for the end of justice.