' GHAZANFAR ALI OONDAL, J.-This is a regular first appeal filed by the Punjab Road- Transport Board, against the judgment and decree of Civil Judge, 1st Class, Rawalpindi dated 12th June, 1982 passed in favour of Tanvir Ahmad and 4 others, respondents Nos. 1 to 5, granting them damages in the sum of Rs, 1,50,000 against the appellant and Nazar Muhammad driver jointly and severally.
2. The brief facts of the case are that on 19th October, 1977 bus No, RID 6345 owned by the Punjab Road Transport Board, which was being driven by Nazar Muhammad driver, struck against volkswa gon car No, LEH 2774 driven by Dr. Haji Ahmad Janjua, deceased, causing his death. On 16th October, 1978. Tanvir Ahmad etc.' respondents Nos. 1 to 5, successors and dependants of deceased Dr. HO Ahmad Janjua, instituted a suit against the appellant and said Nazar Muhammad for damages to the tune of Rs, 1,50,000 on account of their joint liability in tort under the provisions of Fatal Accidents Act, 1885, for the death of Dr. Haji Ahmad Janjua, deceased, caused as a result of the rash and negligent driving of said Nazar Muhammad who was impleaded as defendant No, 2 in the suit. On 12th June, 1982, the said suit was decreed for Rs, 1,50,000 in favour of respondents Nos. 1 to 5 agaiust the appellant and said Nazar Muhammad jointly and severally.
3. The bus driver Nazar Muhammad did not file any appeal against the said decree. However, the Punjab Road Transport Board, appel lant, preferred the present appeal against the said judgment and decree in this Court on 4th September, 1982 praying therein that the impugned judgment and decree be set aside and suit of respondents be dismissed with costs. Nazar Muhammad, the bus driver, who was defendant No, 2 in the suit and against whom the judgment and decree had been passed by the trial Judge jointly and severally, was not impleaded as party in this appeal.
4. Learned counsel for the appellant had filed on 7th May, 1983 an application C. M. 340/C-83 under Order XLI, rule 20, C. P. C. For imp-leading Nazar Muhammad, driver as respondent in this appeal on the ground that while filing the appeal the said driver who is interested in the result of the appeal, was inadvertently omitted. It is claimed in the application that the impleading of Nazar Muhammad will not prejudice the case of the respondents as no relief has been claimed from Nazar Muhammad. It is further contended therein that limitation does not stand in the way of impleading him as a party because no relief has been claimed by the appellant against Nazar Muhammad driver. This application has been controverted by the learned counsel for the respondent in its reply dated 12th May, 1983 on the ground that decree impugned in this appeal being single indivisable decree, Nazar Muhammad was a necessary party in the appeal, who ought to have been impleaded as a party within limitation, and the appeal which was improperly constituted was incompetent and was liable to be dismissed. It was further submitted therein that failure of the appellant Punjab Road Transport Board to implead co-defendant rendered the appeal incompetent on the principle that inconsistent and contradictory decrees would come into existence regarding the same subject-matter and as a result of same litigation, and permission to implead Nazar Muhammad as a party at this stage, when limitation for appeal had expired, would result in irreparable loss to the respondents who had acquired a valuable right and that question of limitation does arise irrespective of the fact whether any relief is claimed or not against the driver.
6. We have heard the learned counsel for the parties. In his oral address, the learned counsel for the appellant has submitted in addition that Nazar Muhammad was not a necessary party in the appeal as no relief had been claimed from him and appeal was properly constituted even in his absence from the record.
7. We have given our anxious thought to the arguments of the learned counsel for the parties. We would first like to deal with the submission of the learned counsel for the appellant that Nazar Muhammad Driver is not a necessary party in this appeal. It is hardly possible to agree with the submission of the learned counsel for the appellant that when no relief is sought from a person in an appeal, he is not a necessary party. In our opinion, existence of a prayer for relief against a person is not the only criterion for judging as to whether such a person is a necessary party or not.
The true test laid down in Order I, rule 10, C.P.C. A is that a necessary party is a person who ought to be joined as a party or, as explained in the precedents, a person in whose absence no effective decree can be passed. No relief may be sought from a person, yet he may be affected by the 'decree to be passed in appeal. When a person is likely to be affected by relief sought in appeal, he is a person in whose absence no effective decree can be passed and must be considered to be a necessary party in the appeal. The impugned decree in this case held the' appellant and Nazar Muhammad severally and jointly liable for the dec retal amount. As already shown, in this appeal by the appellant, the prayer is for setting aside the said decree with costs or in other words for setting aside of the said decree in toto both against the appellant as well as Nazar Muhammad driver. However, such a relief can hardly be granted now, as Nazar Muhammad co-judgment- debtor is not a party in this appeal and he himself has not filed any appeal and has thus accepted the decree and allowed it to achieve finality as against him. Therefore, the only relief which can be considered feasible in this appeal is that the said decree be set aside as against the appellant Punjab Road Transport Board alone. However, in case the decree can be and is set aside against the appellant alone, the entire burden of the payment of the decretal amount would fall'on the shoulders of Nazar Muhammad alone and he would be deprived of the facility of getting the decree satisfied from the funds of the appellant in part or whole and thus escaping from the difficult situation. Nazar Muhammad is, therefore, definitely a person who is likely to be affected by grant of said relief in appeal and is thus a necessary party in this appeal. It was held in Shah Muhamm and others v Muhammad Bakshthat joint decree of possession passed against many defendants was indivisible and each one of the defendantsjudgment-debtors was a necessary party to the appeal and in the absence of any one of them the decree could not be varied or altered. 'In our view, therefore, in the present appeal against the joint and indivisible decree passed against the appellant and Nazar Muhammad, the said cojudgment-debtor Nazar Muhammad was a necessary party.
8. As a corrollary to the above, we think the present appeal which has been filed without impleading Nazar Muhammad, a necessary fifty, C was not properly constituted and is incompetent in the eye of law and liable to be dismissed on that ground.
9. As for the question whether under Order XLI, rule 20, C. P. C. Nazar Muhammad should at the instance of the appellant be impleaded as a respondent in this appeal, we find that the appellant has given no valid ground in his said application for omitting the name of Nazar Muhammad driver from the array of the parties. The only reason advanced in the application is that his name was inadvertently omitted. However, no detail of the inadvertence or the circumstances resulting in the alleged inadvertence or omission has been given to enable this Court to judge the correctness or otherwise of the said averment or the bona fides of the appellant in making the same. Exercise of discretionary power under Order XLI, rule 20, C. P. C. In favour of an applicant is not automatic and cannot be had just for the asking. It is dependent upon existence of some valid and reasonable cause. None has been shown in this case. On the other hand, there are indications to the contrary which disentitle the appellant from benefit of exercise of discretion under the said provision in his favour. In the original suit, the primary liability in tort was laid on the driver Nazar Muhammad while claim against the appellant Punjab Road Transport Board was made on the ground of its liability in tort as employer of Nazar Muhammad. The prayer in the said suit was clearly for grant of a several and joint decree for the suit sum against the appellant and Nazar Muhammad. The decree finally granted was for joint liability of the appellant as well as Nazar Muhammad as well as their several liability.
' The certified copy of the decree sheet filed alongwith this appeal clearly showed the name of Nazar Muhammad as defendant No,
2. These facts were staring in the face of the appellant and his counsel and they could not have left out Nazar Muhammad except on account of extreme negligence on their part. Indeed, the emphasis of the learned counsel on the point that no relief had been claimed by the appellant in the present appeal against Nazar Muhammad gives rise to the impression that the exclusion of the name of Nazar Muhammad from the array of the parties to the appeal was not inadvertent but deliberate and appears to show that name of Nazar Muhammad was intentionally left out on the ground that no relief was being sought from him: The learned counsel does not appear to have checked up as to whether his said view was consistent with the legal position or not.. If he had exercised a little bit of deligence and made a little search, he would have found that it was necessary for proper constitution of the appeal to join Nazar Muhammad as an appellan or to implead him as a respondent. We are, therefore, of the considered opinion that Nazar Muhammad driver was not cited as a party in the appeal on account of gross negligence on the part of the appellant or hi counsel. The law does not brook the acceptance of a petition unde Order XLI, rule 20, C. P. C. Made by a party who is guilty of gross negligence. It was held in case of Muhammad Jamil v. Chairman, Industria Court West Pakistan and another that under Order XLI, rule 20, C.P.C. The court is no doubt empowered in a proper case to add a necessary party as a respondent in an appeal, but the power to take action under the said provision is discretionary and should not be exercised in the case of extreme neglect. Another strong reason which impels us to reject this' application is that the discretion under Order XLI, rule 20, C. P. C. Cannot be exercised when the respondent decree holder has obtained a valuable right as against the person sought to be impleaded in appeal on account of decree of lower court1 2 having become res judicata against such person. Reference in this respect is invited to case of Ramchand Dhaliram v. Badri Nath and others, where the said dictum of law was laid down. In case of Mehtab Beg and 2 others v. Ghulam Muhammad and others it was held that a person in whose favour lower court has passed a decree against which appeal is not filed within the period of limitation acquires a substantive right of a valuable kind and discretion under Order XLI, rule 20, C.
P. C. Should not be exercised to disturb such a right. Nazar Muhammad, whose name had been omitted, had not filed any appeal against the said decree which, therefore, had achieved finality as against him and therefore, respondents Nos. 1 to 5 had acquired a valuable right against said Nazar Muhammad. Therefore, discretion under. Order XLI, rule 20, cannot be exercised against respondents Nos. 1 to 5.
' In view of the above, we do not: feel inclined to accept this application and accordingly dismiss the same.
10. , Faced with this situation, learned counsel for the appellant has placed reliance on Order XLI, rules 4 and 33, C. P. C. And has submitted that under these provisions this Court sitting in appellate jurisdiction has power to adjudicate the matter involved in this appeal even though no appeal has been filed by Nazar Muhammad and has urged that this Court should exercise power under Order XLI, rules 4 and 33, C. P. C. And proceed to adjudicate the appeal on merits. We are afraid we cannot accept this contention too. For the exercise of discretionary power under Order XLI, rules 4 and 33, the necessary parties must be before the court before it can make any order under this rule. Reference in this connection is in vited to Nanak deceased v. Ahmad All and Allah Dad and others v. Nawab and others and Shah Muhammad and others v. Muhammad Baksh.
11. Since Nazar Muhammad was not made a party and we have declined in exercise of our jurisdiction to implead him as a party, we cannot exercise the discretion under Order XLI, rules 4 and 33, C. P. C. And adjudicate the appeal on merits.
12. The appeal having not been properly constituted on account of absence of Nazar Muhammad, a necessary party from array of respondents, is incompetent. It is accordingly dismissed with costs. PLD 1972; SC 321 PLD 1964 SC 559 AIR 1935 Posh. 106 P L P 1975 1411 580 AIR 1946 Lab. 399 PLD 1960 Lah. PLD 1972 SC 321