In this revision under section 115 of the Code of Civil Procedure judgments and decrees, dated 20th of December, 1980 and 3rd of November, 1982 respectively passed by the learned Civil Judge Third Class, Toba Tek Singh and the learned District Judge, Toba Tek Singh have been assailed with the prayer that the suit of the respondents be dismissed with costs throughout.
2. The facts necessary for the purposes of this revision, briefly stated, are that Muhammad Umar, respondent No. 1 and Farzand Ali, the deceased respondent No. 2, instituted a suit against the present petitioners before the Civil Judge, Toba Tek Singh for a declaration that the consent decree dated 7-1-1956 passed by the Senior Civil Judge, Faisalabad in case "Khair Din son of Pane Khan v.
Muhammad Shafi son of Ali Muhammad" was against facts, based on fraud and collusion, against law and procedure and thus liable to be set aside so as to be inoperative upon the rights of the aforementioned plaintiffs and that they have become the full owners of the land detailed in the said decree having been in occupation thereof for more than 25 years with the consequential relief that the defendants be restrained from interfering in the possession of the plaintiffs in any manner whatsoever.
3. This suit was resisted by the petitioners. During the pendency of the suit Farzand Ali, respondent No. 2, died and his legal heirs, namely Mst. Mukhtaran Bibi and Mst. Iqbal Bibi were brought on record as plaintiffs.
4. The learned trial Court on the divergent pleadings of the parties framed four issues including that of relief and ultimately vide judgment dated 20-12-1980 a decree was passed in favour of the plaintiffs, namely Muhammbd Umar, Iqbal Bibi and Mukhtaran Bibi declaring that the consent decree dated 7-1-1956 was based on fraud and being without jurisdiction was set aside. It was also declared that the subsequent orders whatever passed on the impugned consent decree were illegal and the plaintiffs were held to be owners of the suit land through adverse possession.
5. The petitioners feeling dissatisfied with the aforementioned decree of the trial Court preferred an appeal before the learned District Judge, Toba Tek Singh who dismissed the appeal by his judgment and decree, dated 3rd of November, 1982. The learned District Judge found the appeal as improperly constituted because two of the decree-holders viz. Mst. Mukhtaran Bibi and Mst. Lqbal Bibi were not impleaded as respondents in the appeal.
6. The petitioners have, therefore, come up in this revision against the aforementioned judgments and decrees of the two Courts below.
7. The learned counsel for ,the petitioners raised the following contentions :
(i) That the suit having been instituted, on 10.5-1976 i.e. After the promulgation of the Law Reforms Ordinance, 1972, the non-impleading of Mst. Mukhtaran Bibi and Mst. Iqbal Bibi as respondents in the appeal could not make the appeal as improperly constituted ;
(ii) That even if two of the decree-holders were not impleaded as respondents the appeal could not be held to be improperly constituted as provided by section 99 of the Code of Civil Procedure.
Reliance was placed in this regard on East and West Steamship Co. v. Queensland Insurance Co. PLD 1963 SC 663 ; and
(iii) That in any case the appeal of the petitioners could not be thrown out by the lower Appellate Court as against Muhammad Umar respondent.
8. The learned counsel for the respondents on the other hand contended that it is wholly immaterial whether the suit out of which this revision has arisen was filed before or after the promulgation of Law Reforms Ordinance, 1972 as there is no question of abatement involved in the present controversy and the only controversy requiring adjudication is whether an appeal against a decree holder would be competent without impleading him as a respondent.
In the same context the learned counsel for the respondents submitted that it being the established position on record that Mukhtaran Bibi and Mst. Iqbal Bibi who are the decree-holders in the suit out of which the present revision has arisen had not been not only initially arrayed as respondents but were not even impleaded subsequently when this defect was specifically brought to the notice of the petitioners during the pendency of the appeal, the dismissal of the appeal by the lower Appellate Court as improperly constituted was the only course that could be adopted by the said Court. The learned counsel for the respondents in support of his above contention placed reliance on Teja Singh and another v. Kartar Kaur and others (I ).
9. In reply the learned counsel for the petitioners pressed into service Order XLI, rule 20 of the Code of Civil Procedure to contend that the lower Appellate Court could have directed that the omitted persons be made respondents to the appeal.
(1) AIR 1937 Lab. 180
10. The crucial point falling for determination in this revision is as to whether an appeal against a decree in favour of more than one person which decree is not severable can be held to be competent and properly constituted if some of the decree-holders are not made a party to the appeal. The answer to the above question has of necessity to be no in view of the consistent judicial precedents on the subject. Reference in this behalf may usefully be made to Shungara Singh and others v. Imam Din and others (1) and Dwarikanath Par v. Krishna Barai and another (2) in addition to AIR 1937 Lab. 180 cited by the learned counsel for the respondents. The above answer is based on the principle that the joint decree becomes final in favour of the person/persons omitted from being impleaded as a party in the appeal and as such the obvious result to follow is the dismissal of the appeal itself. No valid exception, therefore, can be raised to the dismissal of the appeal by the learned District Judge vide the impugned judgment.
11. It may also be observed that in the case in hand not only the petitioners failed to initially implead necessary respondents, viz. Mukhtaran Bibi and Iqbal Bibi the joint decree-holders, but despite the fact that the above fatal omission bad come to their knowledge before passing of the impugned judgment by the learned District Judge, they even then did no care to take any steps whatsoever to implead them. The matter did not rest at that and the petitioners continued to be negligent in this regard inasmuch as the present revision was also filed by them without impleading Mukhtaran Bibi and Iqbal Bibi as a party thereto and it was at quite a late stage that they filed a misconceived application for correction of the sheet bearing names of the parties so as to add Mukhtaran Bibi and Iqba Bibi as respondents. The above facts, therefore, clearly establish the persistent contumacious neglect of the petitioners in prosecuting their cause before the lower Appellate Court and in this Court. Such a neglect does not merit to be excused in any circumstance especially when by the neglect, a valuable vested right has accrued to the other party. The allowing of the impleadment of Mukhtaran Brbi and lqbal!Bibi by accepting this revision in the attendant circumstances narrated above would to say the least amount to giving premium to one's own neglect to the detriment of another which would neither be warranted in law nor in equity.
12. Adverting now to the contention of the learned counsel for the petitioners that the provisions of Order XLI, Rule 20 of the Code of Civil Procedure should have been resorted to by the lower Appellate Court, I suffice by observing that the lower Appellate Court had no jurisdiction under Order XLI, .Rule 20, C. P. C. To implead persons omitted from being impleaded after the period of limitation for filing the appeal had expired and moreso when there was no request before him either to do so.
13. It would also be pertinent to point out that Order XLI, Rule 20, C. P. C. Will only be attracted where there is an appeal pending in the Court on which a decision may be given by it but when the appellant impleads only one of the persons holding a joint decree there is no proper appeal before the Court and, therefore, the Court would have no jurisdiction to implead other persons (decree- holders) who have been omitted to be impleaded as a party. I stand fortified in my above view by Lubhu Ram and others v. Ram Partap and others (3), a Full Bench decision of this
(1) AIR 1940 Lab. 314(2) AIR 1933 Cal. 464
(3) AIR 1944 Lab. 70 Court, in which it was further held that there was no question of section 5 of the Limitation Act being applied as well.
14. 1 may also add that the provisions of Order XLI, Rule 20,, C. P. C. Are not intended to override other provisions regarding the filing' of appeal and the limitation applicable thereto as contained in the Code of Civil Procedure and the Limitation Act. As already pointed out above the right that had accrued to the decree-holders who were omitted from being impleaded as a party to the appeal by the neglect of the petitioners in filing a proper appeal against them in accord with the provisions of law is a valuable right which could not be lightly treated or take away.
In view of the foregoing discussion, I find no merit in this revision which is accordingly dismissed.
There will, however, be no order as to costs.