' SHER ZAMAN CHAUDHARY, J.-This appeal by leave is directed against the judgment and decree of the High Court whereby the appellants' appeal was dismissed. It arises out of the following circumstances. The land measuring 190 Kanals 3 Marlas situated in village Lawasi, Tehsil Muzaffarabad, originally belonged to three brothers, namely, Faiz Muhammad, Ghulam Muhammad and Sittar Muhammad. Faiz Muhammad is stated to have died during Dogra Regime leaving behind a widow, a son and a daughter who is now respondent-plaintiff in the present case.
Widow and son of Faiz Muhammad died sometime after 1950 after the enforcement of Shariat Act.
The appellants are the heirs of Ghulam Muhammad and Sitter Muhammad.
2. Mat. Zainab Noor respondent filed a declaratory suit alongwith the prayer for possession by way of consequential relief in the Court of Sub-Juge, Muzaffarabad, claiming therein that Faiz Muhammad her father owned 1/3rd share out of the total land held commonly by three brothers.
She therefore, as claimed in the plaint, was entitled to whole of the land belonging to her father.
From among the defendants Fattu son of Ghulam Muhammad, Mst. Hussani and. Mst. Chabbi daughters of Noor Muhammad admitted the claim. Their statement, however, was not recorded nor was any decree on admission either pressed for or granted by the trial Court.
3. During the pendency of the suit Sher Muhammad one of the defendants died. His three daughters namely Mst. Phatti, Mst. Begum Noor and Mst. Zainab Noor were brought on the record as his legal representatives. After sometime they were proceeded ex parte. The rest of the defendants resisted the suit mainly on the grounds:
4. (a) that the plaintiff was not the daughter of Faiz Muhammad;
(b) that the suit land could not be partitioned under the terms of Shariat Act;
(c) that the suit was not within time; and
(d) that the defendant had sold some land out of the common holding to Ali Akbar and Faqir Muhammad. They being necessary parties were not impleaded so the suit was not maintainable.
They were, however, subsequently impleaded as defendants.
' The trial Court dismissed the suit vide its judgment and decree dated 30-10-1967, on the ground that under Customary Law the plaintiff-respondent was not entitled to inherit any share out of her father's property. Besides, the decree on the basis of adverse possession was passed in favour of the appellant-defendant.
4. Feeling aggrieved by this judgment passed by the Sub-Judge the respondent went up in appeal before District Judge. On 30-3-1972, thereat an application was moved for impleading the legal representatives of Nek Muhammad respondent who had since died. The application was opposed on the ground that the application being time-barred the suit had, therefore, abated. No further action was taken on the application and it remained undecided. The learned District Judge however finally accepted the appeal vide his judgment dated 31-10-1972. The findings of the trial Court were set aside and the suit of the respondent-plaintiff was decreed. On appeal the judgment and decree passed by the District Judge was set aside by the High Court by its judgme dated 12-6- 1975, acrd the appeal was remanded back to the District Judge for recording a fresh finding on the application for bringing the legal representatives of Nek Muhammad on record.
5. After the appeal was remanded back to the District Judge and was still awaiting disposal Fattu, Faqir Ali and Begum Noor, respondents, also died. The application for bringing the legal representatives of Begum Noor on record was moved before the District Judge. On 24-4-1979, through an interim order the learned District Judge found that Fattu had made an admission on pleading before the trial Court so, therefore, he was not a necessary party in the appeal. His name was, therefore, ordered to be deleted from the list of the respondents. With regard to others he recorded the finding that the suit had abated to the extent of Faqir Ali, Nek Muhammad and Mst.
Hussani. It is important to note that no order with regard to Begum Noor was passed. The learned.
District Judge vide his judgment and decree dated 30-5-1979 reversed the finding of the trial Court and decreed the suit of the respondents in respect of the remaining respondents.
6. The appellants once again challenged the correctness of the findings arrived at by the District Judge before the High Court. While rejecting the appeal, the learned High Court even discharged the finding of the District Judge on the point of abatement. In case of Faqir Ali the learned Judge found that since on evidence it was proved that he was neither a co-sharer nor in possession of any part of the suit land so therefore, we was not a necessary party. So far as Begum Noor was concerned it was found that although a co-sharer she was not in possession of any part of the land in dispute. Besides, her sisters Mst. Phatti and Zainab Noor were already party in appeal, though in different capacity. She was sufficiently represented. Failure to bring on record the other heirs would not result in abatement of the appeal. With regard to Nek Muhammad it was held that the burden of proof that the application far impleading his legal representatives was beyond time was on the appellants. Since they failed to prove it the application was therefore considered as within time. The finding on the point arrived at by the District Judge was held to be faulty. The learned High Court while rejecting the appeal of the appellants decreed the suit of the respondent in its entirety on 2-6-1980.
7. It is this judgment of the High Court the validity of which is now being challenged through this appeal. From among the various grounds listed in the petition, leave was, however, granted for the consideration of the following points:- (a)whether without an appeal or cross-objections, Order XLI, rule 33, C. P. C., in the circumstances of the case, has been correctly applied, by the High Court in vacating the abatement in respect of Faqir Ali and Nek Muhammad?
(b)whether the interpretation of Order XX, rule 4, C. P. C. Made by the learned Single Judge in the High Court to the effect that abatement cannot be ordered for the failure of the plaintiff to bring on record the legal representatives of a defendant who has been proceeded ex parte or who has admitted the claim of the plaintiff is correct; and
(c) whether Mst. Zainab Noor, respondent, without her prayer to have the share from the property left by her brother and mother, is entitled to get the decree out of their land too?
8. Mr. T. H. Tariq, the learned counsel for the appellants, while taking up the first point of his objection argued that the learned District Judge vide his judgment dated 30-5-1979, declared the respondents' appeal to have abated to the extent of Faqir Ali and Nek Muhammad's share. The correctness of this finding recorded by the District Judge was not challenged by Mst. Zainab Noor respondent-plaintiff by way of appeal nor did she submit any cross-objection in the appeal filed by the appellant-defendants. The finding on the point, -therefore, had become, final. The learned Judge in the High Court, argued the learned counsel, therefore, had no jurisdiction to disturb the finding of the first appellate Court on the point of abatement. The provisions of Order XLI, rule 33 of the Code of Civil Procedure have been misunderstood and misapplied by the learned Judge. Order XLI, rule 33 is limited in scope and ought to be applied sparingly. The rule could only be pressed into service for modification of a decree or order at the instance of appellant. In no way could the rule be used as a vehicle by the respondents to challenge adverse decrees or orders without filing appeal or cross-objections. To allow such a bypass to the provisions relating to appeals and cross- objections, would reduce them to the state of redundancy. The finding of the learned High Court on the point of abatement, according to the learned counsel, could not therefore be sustained.
9. Prima facie, the argument appears to be plausible and seems convincing. If a party with the adverse finding fails to appeal against it or file cross-objections, whatever may be the reason, could not be entitled to any relief to the extent the finding has gone against him. But if given a deeper thought, the fallacy of apparently convincing objection would become evident. Rules of Procedure are primarily designed in aid of and for the advancement of justice. But in certain situations instead of advancing the ends of justice these may impede it. No procedure is ever exhaustive. In many a cases the Judges, although feeling a manifest injustice Navin been done yet may find themselves helpless to redress it. It is precisely t provide against such a situation that the appellate Courts are clothed with vast discretionary powers. Rule 33 of Order XLI, in the Code of Civil Procedure is a singular example of it. It reads:- "The appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection."
Careful perusal of the rule would make it abundantly clear that it gives vas discretionary powers to the appellate Court to pass any order regardles of the fact that no appeal or cross-objections were filed in respect of adverse part of the finding. While considering the proposition in Ghulam Hussain Khan v. Mst. Aseela Begum and 3 others . Kh. Muhammad Yusuf Saraf, C. J. (as be then was) observed:- "The authorities which seem to restrict the scope and application of the rule by denying its benefit to those who did not avail of the right of appeal or- cross-objections, with great respect, seem to have ignored the assence of the rule, namely, to provide a remedy for those very cases, where the Appellate Court, on the one hand, feels strongly that the respondent has suffered a grave injustice but at the same time, on account of the absence of a cross-objection or a cross-appeal, it feels handicapped in undoing the wrong. After all, if its application was conditioned on a party having1 filed an appeal or cross-objection, why then provide expressly in the rule itself that the power can be exercised notwithstanding their absence? In fact it seems to be intended to protect those who missed the bus, whatever the reasons. The rule also does not require them to explain why they failed to come in cross-appeal or present a cross-objection. All that they need to establish is that regardless of their human feelings, the compulsions of justice or the gravity of injustice demand a reversal of that part of the judgment of the lower Court against which no appeal or cross-objection had been filed."
' The observation is well-reasoned and in perfect harmony with the principle of equity and justice.
We therefore, do not find any substance in the reasoning advanced by the learned counsel for the appellants on this legal aspect of the proposition.
10. It now remains to be determined if the circumstances of the case warranted the resort to this rule by the learned Judge in the High Court. In case of Faqir Ali it was found on evidence that he was neither a co-sharer nor in possession of any part of the property. In a suit filed by the respondent against her co-sharer, the present appellant, she claimed a share out of the common holding owned by her father and his brothers, the predecessor in interest of the present appellants, Faqir Ali was found as not a necessary party to the appeal. Under the circumstances the application of the rule by the learned High Court was perfectly in accordance with law.
11. In case of Nek Muhammad deceased the position is however different. On appeal the High Court vide its judgment dated 12-6-1975 had remanded the appeal back to the District Judge for recording fresh finding on the point of abatement. The respondent had moved an application before the District Judge for the legal representatives of Nek Muhammad to be brought on the record and objections were also filed by the present appellants. The learned District Judge, after the remand,- again decided the point without allowing the parties to lead evidence. No issue on the point appears to have been framed. The learned High Court .While reversing' the finding of the District Judge on the point finally settled the controvers by holding that the application for the legal representatives of Nek Muhammad was within time. The burden of proof that the application was time-barre was on the appellants and they failed to discharge it as such. In the estimation of the learned High Court the application was well within time. We have given or deep thought to the proposition. This finding of the High Court is violate to all the accepted legal norms. After setting aside the finding recorded by the District Judge the case should have been remanded back with the direction that the District Judge after allowing the pantie an opportunity to lead evidence in proof of their respective stands, should record a fresh finding on the point. Dispensation of this legal course, rather the only course, was a clear breach of the legal requirement. Under these circumstances the learned High Court by pressing into service rule 33 of Order XLI acted in violation to the accepted legal norms. The submission of the learned counsel on the point is, therefore, well- founded.
12. Adverting to the next point formulated for consideration it was contended on behalf of the appellants that the learned High Court misdirected itself by holding that Fattu was not a necessary party to the appeal on account of an admission made by him in pleadings before the trial Court.
Besides, the learned High Court, according to the learned counsel, acted illegally by holding that Begum Noor was sufficiently represented by the legal heirs who were already party to the appeal though in different capacity, and as such no fresh application was necessary. While defending the impugned judgment it was argued on behalf of the respondents that since Fattu deceased had made an admission and two sisters of Begum Noor were already party to the appeal no fresh application for impleading their legal representatives was necessary. The finding recorded by the High Court was therefore, according to the learned' counsel, perfectly in accordance with law and not open to any exception.
13. We have given or earnest thought to the submissions made by the learned counsel for the parties. It is correct that Fattu deceased on pleadings' stage admitted the claim of the respondent.
The point now therefore requiring determination is as to what is the significance of the admission so made on pleadings. The relevant provision of law on the point is Order XII, rule 6 of C. P. C. It provides that any party may at any stage of the suit where admissions of facts have been made, either on pleadings or otherwise, apply to the Court for such judgment or order as upon such admissions he may be entitled to, without waiting for the determination of any other question between the parties and the Court may upon such application make such order and give such judgment as it may think just. The respondent-plaintiff in the present case neither applied for nor the trial Court passed any deer on the admission. The suit of the respondent was dismissed in toto by the trial Court. Fattu deceased was, therefore, a necessary party in appeal before the District Judge. The respondent in her appeal before the District Judge included him in the list of respondents. As the suit of the respondent was dismissed in its entirety Fattu therefore, was very much a necessary party and in fact was treated as such by the respondent. The learned High Court was therefore wrong to hold that he was not a necessary party and as such no application was needed for impleading his legal representatives. The finding on the point arrived at by the High Court was therefore illegal and unsustainable.
14, So far as Begum Noor respondent is concerned, she was proceeded ex pane during the proceedings before the District Judge. Then after a while an application was moved on 8-9-1975, for impleading the lagel representatives of Begum Noor deceased. The learned District Judge vide his judgment dated 30-5-1979, instead of giving any finding with regard to Begum Noor recorded the finding that the appeal of the respondent had abated to the extent of Mst. Hussani who incidently was very much alive. This error so evident on the record was corrected by the High Court.
But while considering the case of Begum Noor the learned Judge in the High Court found that since two sisters of the deceased, her legal heirs, though in different capacity were already parties in the proceedings and the estate of the deceased was sufficiently represented by them, there was no need for any further application. On careful examination of the record we find that a grave error in law was committed by the High Court on the point. It is no doubt correct that if the heirs of the deceased are already on record though in different capacity and the deceased is, sufficiently represented then there remains no need for any further action. The position in the present case however is quite different. Mst. Fatti and Mst. Zainab Noor daughters of Sher Muhammad and sisters of Begum Noor deceased were not the legal heirs of Begum Noor. The list of the heirs of Begum Noor was on the record. She was survived by a son and daughters. In fact they are included in the list of appellants and numbered as appellants Nos. 12 to 14 before the High Court. The copy of the High Court's .The finding on the point arrived at by the High Court was, therefore judgment is a clear manifestation of this fact. None of these heirs o Begum Noor was a party before the District Judge. This important fact, so obvious on the record, however, escaped the notice of the learned High Court contrary to law and could not be maintained.
15. Lastly it was argued by the learned counsel for the appellant that Mst. Zainab Noor respondent- plaintiff did not claim any share out of the property belonging to her mother or her brother. The whole claim as disclosed from her plaint is that she was entitled to inherit 1/3rd of the total land which was owned by her father and as such the finding of the learned High Court that she was entitled to inherit the share of the property left over by deceased mother and brother was contrary to law and could not be sustained. We have carefully gone through the contents of the plaint and given or considered thought to the submissions made in the light of the evidence on record. It is correct that the plaint is not so happily worded but then from the careful perusal of its contents it is absolutely clear that she claimed the property which was the share of her father commonly owned by him alongwith his two brothers who were predecessors in interest of the present appellants. The plaint if considered carefully discloses that the 'respondent does not base her claim on the ground that she was only entitled to inherit out of the property left over by her deceased father. All that she meant and as is borne out from the contents of the plaint was that she sought a declaration with regard to the property which originally belonged to her father. The argument on the point is misconceived and is without any substance. The judgment of the High Court is well-considered on the point and we do not find any fault in it so the argument on the point is rejected.
16. In the final analysis in view of the above considered points in the earlier part of this judgment we find that the finding of the High Court so far as it relates to the abatement in respect of Nek Muhammad, Mst. Begum Noor and Fattu is contrary to law and not sustainable. We, therefore, set aside the finding of the High Court to the extent sat above and remand the case back to the District Judge to record a fresh finding, in the light of the observations made above, after allowing the parties a chance to prove their respective stand and then decide the point of abatement and the extent to which if found in affirmative, it would operate.
' The appeal is accepted and the case is remanded back for fresh finding on the points listed above. No order as to costs. PLD 1978 AzadJ&K 1