This second appeal under section 100, C . P. C . Was directe4 against the judgment and decree, dated 2-6-1969 whereby the firs appeal of the appellants was dismissed as time-barred.
2. Te relevant facts briefly stated are that a suit for declaration and permanent injunction was filed by the appellants against th4 respondents. During the pendency of the suit Hussain alias Hussain; defendant No.6 died and his legal representatives were brought or record. The suit was ultimately dismissed by the learned trial Court vide judgment and decree, dated 8-11-1968. The appellants challenge this judgment and decree by filing an appeal in the Court of the, learned District Judge, Gujrat. In the memorandum of appeal, date( 19-11-1968 instead of impleading the legal representatives of aforesaid Hussain alias Hussaina, the appellants arrayed the deceased defendant No.6 Hussain alias Hussaina as one of the respondents along with the other respondents. Thereafter an application, dated the 30th of January 1969 was filed under Order XLI, rule 20 read with section 151, C.P.C, for impleading the legal representatives of the deceased Hussain alias Hussaina as respondents in the said appeal. The learned Appellate Court relying on Shangera Singh and others v . Imam Din and others (1940) P L R 42 355; Labhu and others v. Ram Partap and others 1944 P -L R 148; AIR 1944 Lah. 76; Qasim Khan and another v. Mst. Malkai and others PLD 1963 .(W.P.) Pesh. 58 held that the power conferred on a Court of appeal by Order XLI, rule 20, C . P. C . Can be used in favour of that person alone who is interested in the result of appeal and a defendant against whom the right of appeal has become barred is not a person interested, and that the appellate Court has no power to add as a respondent a person who was a party to the suit and against whom the appeal has become barred by time.
2. 1 have heard the learned counsel for the parties. The fact: which are relevant and which are not in controversy are that Hussain alias Hussaina who was cited as defendant No.6 died during the penaency of the suit and his legal representatives were brought on record. This suit was dismissed but in the copies of the judgment and decree supplied to the appellants, Hussain alias Hussaina was shown as defendant No.6 and admittedly the names of legal representatives of Hussain alias Hussaina defendant No.6 were not mentioned in the said copies of the judgment and decree.
Learned counsel who instituted the appeal prepared the memorandum of appeal on the basis of the copies of the judgment and decree supplied to him. Mr. Aqil Mirza submitted that in the aforesaid circumstances the question to be considered was whether the litigant can be made to suffer for the mistake of the Court or its official. His plea was that in these circumstances the view taken in the judgments relied upon by the learned first appellate Court would not be applicable. He referred to Bakhsheesh v. Jaffer PLD 1978 Pesh. 6, Hazrat Shah v. Rehman Shah 1980 CLC 1093 and Muhammad Sher v. Muhammad Khan PLD 1975 Lah. 1016. In reply Mr. Talib H. Rizvi placed reliance on Khazan Singh and another v. The Secretary of State for India in Council AIR 1927 Lah. 380, Labhu Ram and others v. Ram Partap and others AIR 1944 Lah. 76 and Mehtab Beg and two others v.
Ghulam Muhammad and others PLD 1975 Lah. 580. 1 have gone through these judgments referred to by the learned counsel for the parties. The judgment referred to by the learned counsel for the respondents do lay down that Order XLI, rule 20, C.P.C. Can be used in favour of that person alone who is interested in the result of the appeal and a defendant against whom right of appeal has become barred is not a person interested. In these cases the Court refused to exercise discretion in favour of the defaulting party but these cases are distinguishable as the default committed was not the result of the mistake committed by the Court or its officials. The cases in which the omission in the parties name occurred due to the mistake committed by the officials of the Court are two Peshawar cases noted above. In the case of Bakhsheesh v . Jaffar it was pointed out that in such a situation the question that calls for determination is whether the mistake of omitting the name of a necessary party as a respondent in the appeal was due to extreme negligence of the plaintiff- appellant or it was due to the fact that a Court or its officials failed to mention his name as a defendant in the heading of certified copies of the judgment and decree. In this precedent the principle that no litigant is to be allowed to suffer by the mistake of the Court or its official was invoked and the discretion was exercised in favour of the party seeking impleadment of the omitted respondent. Again, in the Lahore case of Muhammad Sher (supra) Mr. Justice Muhammad Afzal Zullah (now Honourable Judge of the Supreme Court) referred to the same principle of law and held that there was full justification for allowing the correction as the appellant in that case was not responsible for the clerical mistake committed by the staff of-the first appellate Court while drawing the decree. This view was taken after going through the numerous judgments of various High Courts. Following the rule laid down in the case of Bakhsheesh v. Jaffar PLD 1978 Pesh.
6 1 am of the view that the learned first appellate Court should not have refused the application whereby the legal representatives of Hussaina deceased-defendant were sought to be enlisted in the array of the respondents. The impugned judgment of the learned first Appellate Court cannot be maintained and is, therefore, set aside. The application filed by the appellants to implead the said respondents is allowed. This being the position the first appeal filed by the appellants shall be deemed to be still pending and shall be disposed of in accordance with law. The parties shall bear their own costs.
3. The parties are directed to appear before the learned District Judge, Gujrat on 27-11-1985. Office shall see that the record reaches the Court of the learned District Judge well before the date of hearing.