Through this civil revision, the petitione r has challenged the order dated 10.02.2020 whereby the lea' ned Additional District Judge, Gojra accepted the application for leave to appeal filed by the Respondent No. 1 and admitted his appeal against judgment & decree dated 31.07.2018 for regular hearing.
2. Brief facts of the case are that the petitioner filed a suit for possession through pre-emption against the Respondents No. 3 & 4, who filed contes ting written statement. The learned trial Court framed issues and both the parties recorded their oral as well as documentary evidence. On 28.11.2013, the Respondent No. 1/appellant filed an application under Order I Rule-10 C.P.C, on the ground that he had purchased the suit property from Respondents No. 3 & 4, which was dismi ssed by the learned trial Court on 26.04.2 015. Against the said order , the Respondent No. 1 filed revision petition which was dismissed by the learned revisional Court on 15.05.2015. The Respondents No. 3 got recorded her conceding statement on her behalf as well as on behalf of Respondent No. 4 in favour of the petitioner before the learned trial Court on 15.05.2018 upon which the suit was decreed on 31.07.2018. The Respondent No. 1 filed appeal against the judgment & decree dated 31.07.2018 alongwith petition for leave to appeal. The learned appellate Court vide order dated 10.02.2020, allowed the petition for' leave to appeal filed by Respondent No. 1 and admitted the appeal for regular hearing. Hence, this civil revision.
3. I have heard the arguments of learned counsel for the petitioner and have gone through the record with his able assistance.
4. The Respondents No. 3 & 4/defendants sold the suit land to Respondent No. 5, Muhammad Asif Nadeem, received consideration, executed an agreement to sell and irrevocable general power of attorney Bearing No. 346/4 dated 14.10.2010. The petitioner filed suit for pre-emption on 06.01.2010 in which, on 15.05.2018, Respondent No. 3/defendant, Mst. Asia Bibi, appeared in person as well as on behalf of Respondent No. 4, her husband, as her special attorney and got recorded conceding statement in favour of the petitioner/plaintif f having no objection on decreeing the suit.
The Respondent No. 1 contended that he purchased the suit land from Respondent No 5, Muhammad Asif Nadeem, being bona fide purchaser , through sale Mutation No. 1230 dated 29.05.2012 for land measuring 01 Kanal, Mutation No. 1231 dated 29.05.2012 for land measuring 05 Kanal 06 Marla and mutation No. 1250 dated 30.10.212 for land measuring 18 Kanal 03 Marla.
As per the law laid down by the Hon'ble Supreme Court of Pakistan, the Respondent No. 1 being aggrieved party has a right to file appeal or participate in the proceedings of appeal if the is adversely effected by the judgment & decree passed in a suit. Reliance in this regard is placed on H.M. Saya & Co., Karachi vs. Wazir Ali Industries Ltd., Karachi and another (PLD 1969 SC 65 ) wherein the Hon'ble Supreme Court of Pakistan has held as under: "There can be no dispute that the only party which was adversely affected by the order of ad interim injunction was Respondents No. 1. We are satisfied that Saya & Co, deliberately omitted to make them parties with the intention of avoiding a contest. They knew fully well that the reliefs sought were really directed against Wazir Ali Industries, Limited, and their bankers. A stranger to a suit or a proceeding is not prohibited by the Code of Civil Procedure from filing an appeal from an order passe d therein. It is true that there is no express provision permitting such party to prefer an appeal against such an order . This omission, however , cannot be understood to amount to prohibition.
The Court ought not to act on the principle that every procedure is to be taken as prohibited unless it is expressly provided for. To give such a meaning to the omission would result in, grave injustice. The facts of this case are clear example in point. The Court should proceed on the principle that every procedure which furthers administration of justice is permissible even if there is no express provision permitting the same. Section 96 of the Civil Procedure Code deals with appeals from decrees and Section 104 deals with appeals from orders. These, provisions do not in terms say who is entitled to prefer an appeal. The Code, however , lays down that it is the decree or the order that has to be appealed against. If the decree or order appealed from adversely affects a person he should be permitted to challenge the same in appeal even if he was not made a party to the original suit or proceeding.
The learned counsel for the appellants has, in support of his contention, relied upon three decisions.
In the case of J. Rustamji of Lahore v.. Official Liquidator of the People's and Amritsar Bank, Ltd. and another (1), an appeal filed under Section 169 of the Companies Act by a creditor against an order sanctioning a compromise was found to be incompetent as the appellant had not qualified himself under rule 58 of the Rules framed under the Act to attend the proceedings and was not a party to the proceedings before the trial Judge. In the case of Indian Bank Limited, Madras v. Saith Bansiram Jashamal (Firm) and another (2) an appeal preferred by a creditor of an insolvent against the decree in a suit in which the Official Receiver was impleaded as a party was found to be incompetent as the appellant was not a party to the suit. This decision, however , was not fully approved in the case of Sm. K, Pannalagu Ammal v. The State of Madras and others (3) wherein the right of the appellate Court to grant permission to a person who is not a party to the suit but is affected by the judgm ent, decree or order of the trial Court to prefer an appeal against the same was recognized. Lastly the learned counsel for the appellants referred to the case of Al-Kisan T ransport Co, Ltd:, v . Regional T ransport, Authority , Lahore (1). In this case it was observed: "The only reasonable interpretation that can be placed on the language employed in the relevant provisions of the Code of Civil Procedure is that an appeal can be instituted by a party to the proceedings in which the order sought- to be appealed against was passed and this conclusion is inevitable even if I proceed on the assumption that the Code of Civil Procedure did not in terms say that an appealed could be presented by a party to the proceedings in which the order appealed against was passed. It in inconceivable that the intention of the authors of the Code of Civil Procedure, parts of which devote meticulous attention to the question what persons could or should be parties to proceedings in Courts, was that an appeal could be lodged by person who was not a party to the proceedings in which the order intended to be appealed against was passed. If this were so, nume rous rules occurring in the Code of Civil Procedure with regard to impleading persons as parties to the proceedings governed by that Code would be entirely redundant and in the absence of very cogent proof to that effect I am not prepared to hold that the Legislature which was responsible for passing the Code of Civil Procedure had indulged in redundancy on a very prolix scale."
We may point out, with due respect, that it has not been possible for us to accept the above observations.
The English Courts have consistently followed the practice that a person who is not a party to a suit or a proceeding may prefer an appeal if he is affected by the judgment, decree or order of the trial Court provided he obtains leave from the Court of appeal. The test applied in granting leave to appeal, in such cases, is that if the person who wants to prefer the appeal might properly have been a party in the suit or proceeding then he may obtain leave to appeal. The case of in re: B. An Infant (2) on which Mr. Dingoomal has relied lends support to the above proposition. In our view this is an equitable rule which should be followed in the absence bf any provision to the contrary , in the Code of Civil Procedure,"
Reliance is also placed on the cases cited as Rafique Ahmad Chaudhry vs. Ahmad Nawaz Malik and others (1997 SCMR 171 ) and Muhammad Shahban and others vs. Falak Sher and others (2007 SCMR 882 ).
5. The learned appellate Court, after considering the parameters of Section 96, C.P.0 and the law laid down by the Hon'ble Supreme Court of Pakistan has rightly allowed the application for leave to appeal which order does not require any interference by this Court.
6. Learned counsel for the petitioner has not been able to point out any illegality or material irregularity in the impugned order and has also not identified any jurisdictional defect calling for interference by this Court.
7. In view of above, this civil revision being devoid of any merits is hereby dismisse d. No order as to costs. Anyhow , as the appeal is still pending before the learned appellate Court;, as such, the , petitioner , if so desire, can raise all the objections before the said Court.