SHAHID BILAL HASSAN J. Brief facts, giving rise to the instant appeal are as such that respondent No.1 instituted a suit for declaration and possession with perpetual injunction contending therein that he was owner in possession of the land measuring 12-Kanals 14-Marlas and 06-Sarsahi, situated at village Channu Mome, Tehsil & District Sialkot; that he appointed the late Chaudhry Zulfiqar Ahmad as his general attorney; however, he cancelled his power of attorney replacing him with Muhammad Akram, the respondent No.6; that his attorneys committed fraud and carried out deception upon him, who in collusion with the revenue authorities transferred the aforesaid land to Gulzar Butt, the respondent No.2 through a sale mutation No.836 attested on 26.05.2004; hence, the appellant sought annulment of the said mutation and prayed for possession of the suit land. The suit of the respondent No.1 was decreed vide judgment and decree dated 06.03.2013. The respondent No.2 being aggrieved preferred an appeal. The appellants were not arrayed as the defendants and respondents: both in suit and the appeal, despite the fact that the suit land stood mutated in favour of the appellants vide sale mutation No.952 attested on 10.12.2005 whereas the suit was instituted on 17.12.2005. When the appellants came to know about passing of the aforesaid decree dated 06.03.2013, they being directly affected preferred an appeal and alongwith the appeal they also filed a miscellaneous application seeking leave to file an appeal as a matter of abundant caution. The learned appellate Court admitted the appeal of the appellants to regular hearing vide order dated 27.09.2013. However, vide impugned consolidated judgment and decree dated 18.10.2016, the learned appellate Court held the appeal of the appellants incompetent and dismissed the same; hence, the instant regular second appeal challenging the vires of impugned judgments and decrees passed by the learned Courts below.
2. Heard.
3. It is an admitted position on record that the present appellants became owner of the disputed property vide sale mutation No.952 attested on 10.12.2005, whereas the suit was instituted, obviously, without impleading them as party and challenging the said mutation in their favour, by the respondent No.1 on 17.12.2005 and even during pendency of the suit, the respondent No.1/plaintiff did not bother to implead them in the array of defendants by moving an application under Order I, Rule 10, Code of Civil Procedure, 1908 and decree dated 06.03.2013 was passed. The appeal preferred by the present appellants before the first learned appellate Court was dismissed by observing that:- 'As far as appeal filed by the appellants is concerned perusal of record reveals that they never appeared before learned trial court in proceedings of trial of the suit and they even did not make any effort to become a party to the suit or to challenge the impugned judgment and decree upon the basis of fraud and collusiveness in due course of law. It is un denied principle of law that a person who is not the party to the proceedings cannot assail the vires and result of the same in appeal. Therefore, this court is of the firm view that appeal filed by appellants is not maintainable.'
However, in this respect, it is observed that the appellants had remedies: to file application under section 12(2), Code of Civil Procedure, 1908 or to assail the judgment and decree by preferring an appeal. The appellants, having been adversely affected, opted to challenge the decree by filing an appeal, which was maintainable. In this regard reliance is placed on H.M. Saya & Co., Karachi v.
Wazir Ali Industries Ltd., Karachi and another (PLD 1969 Supreme Court 65) and Sahib Dad v.
Province of Punjab and others (2009 SCMR 385). The said principle was followed by learned Division Bench of Islamabad High Court in a judgment reported as Jamila Pirzada and 3 others v.
Col. (R) Mansoor Akbar and 2 others (2011 CLC 1619 Islamabad) and it was held that:- '12. It is observed that as a general principle none can appeal from a decree unless he is a party, but a person, who is not a party to the trial proceedings in a civil suit can file an appeal if he/she is adversely affected by the order and the Appellate Court considers it necessary in the interest of justice, because in such cases right of appeal is a safety wall against the perpetuation of injustice as well as against useless appeals.'
4. Pursuant to the above, the impugned judgments and decrees being contrary to law are open to examination in exercise of jurisdiction under section 100 of the Code of Civil Procedure, 1908; therefore, the same cannot be allowed to hold field further, because it is trite law that one should not be condemned unheard and every litigant should be provided with fair opportunity to present and defend his/her case. Any further observations on merits of the case cannot be rendered, may it prejudice case of either side; therefore, this Court holds its hands from making any further dilation.
5. In view of the above, the appeal preferred by the appellants is accepted, consequent whereof the impugned judgments and decrees passed by the learned Courts below are set aside and case is remanded to the learned trial Court with a direction to implead the present appellants in the array of the defendants by obtaining amended plaint from the plaintiff and after submission of written statements by them (the present appellants) proceed with the case, which will be deemed to be pending, and decide the same afresh in accordance with law. The adversaries are directed to appear before the learned trial Court on 24.01.2023, positively. 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.