1. ' MUHAMMAD AFZAL ZULLAH, J.--This appeal through leave of the Court is directed; against the judgment dated 3-4-1983 of the Lahore High Court; whereby the regular First Appeal filed by the present appellant (defendant in a suit for damages) was dismissed on the technical ground that another defendant/judgment-debtor was not impleaded as a party within the period of limitation.
2. ' The facts relevant for the present discussion taken from the impugned judgment are: That a bus owned by the appellant (defendant No,3) was being driven by Ghulam Nabi (defendant No,5) when it met with an accident which caused the death of Muhammad Anwar Mughal, the predecessor-in-interest of the plaintiffs- (respondents Nos. 1 to 7). They filed a suit against the appellant as also the driver for damages on the ground of rash and negligent driving by the bus driver Ghulam Nabi. This suit was decreed for Rs,1,00,000 (one lac) in favour of the plaintiffs and against the defendants "jointly and severally".
3. ' The first appeal was filed by the present appellant alone without impleading any other defendant/judgment-debtor, particularly the driver. A preliminary objection raised by the plaintiffs/decree-holders regarding non-joinder of parties in appeal, was upheld resulting in its dismissal. Leave to appeal was granted to examine the following contention-- "Learned counsel contenced that the learned Rawalpindi Bench of the Lahore High Court has fallen into error in applying Muhammad Jamil v. The Chairman, Industrial Court, West Pakistan and The Orient Match Factory Limited, Shandara PLD 1964 SC 559 to the facts of the present case. In that case the employer against whom relief was claimed, had not been impleaded as respondent within the period of limitation with the result that by lapse of time the employer had acquired a valuable right which could not be taken away by invoking the provision of Order 41 rule 20, C.P.C. In the present case no relief was being claimed against the driver who had acquired any valuable right as such to defeat the provision of Order 41 rule 20, and, therefore, the case cited was inapplicable to the present case; that the present case is fully covered by Sarshar Ali v. Robert Cotton Association Ltd. And another PLD 1963 SC 244 wherein it has been held that the necessary party is one against whom relief is claimed and since no relief was claimed against the driver, he was not a necessary party to the appeal and the appeal was, therefore, not improperly constituted by the non-impleading of the driver."
4. ' The learned Judges in the High Court while dealing with the question whether or not the appeal could proceed without impleading Ghulam Nabi driver as a party therein observed and held as follows:-- "It cannot be denied that Ghulam Nabi, driver of bus No,RIE-1613, was impleaded as defendant No,5 in the suit and that the impugned judgment and decree has been passed against him and the appellant, jointly and severally. The said Ghulam Nabi, Bus Driver, is neither co-appellant with the Punjab Road Transport Board in this appeal nor has he been impleaded as a respondent. Being a necessary party both in the suit and in this appeal, his not being impleaded in the present appeal makes the present appeal incompetent. Necessary parties must be on the record of an appeal, in order that the same be properly constituted and one of two joint judgment-debtors cannot appeal without joining the other either as an appellant or as a respondent. If any authority is required for this view, Muhammad Jamil v. Chairman, Industrial Court, West Pakistan (PLD 1964 SC 559), Shah Muhammad v. Muhammad Bakhsh (PLD 1972 SC 321) and Ram Chan Dalil Mal v. Badri Nath (AIR 1935 Pesh. 106) may be referred. In this case, no application has even been made under Order XLI rule 20, C.P.C. By the appellant for impleading Ghulam Nabi as co-appellant or as a respondent.
5. Fven assuming that such an application was made now, it would be hopelessly time-barred. In this view of the matter, we hold that the preliminary objection prevails. In the absence of the co- judgment-debtor, who is jointly and severally liable, it would not be possible to modify or set aside the judgment and decree. The appeal, therefore, merits dismissal."
6. ' Learned counsel for the appellant is absent. His junior who is not an Advocate of this Court has been allowed to be present in place of his senior but he has not been able to argue the appeal. The point involved being clearly stated in the leave granting order we asked the learned counsel for the respondents who is a Senior Advocate of this Court to assist us to determine; whether, the impugned judgment can be upheld. He argued the matter at length and, to be fair to him, made certain admissions with regard to the legal position which would be presently noted.
7. ' The three major factors which weighed with the learned Judges of the High Court are as follows:-
(1) That the driver who was a necessary party in the suit as also in the appeal not having been impleaded made the appeal incompetent; because, "necessary party must be on the record of an appeal, in order that the same be properly constituted and one of two joint judgment-debtors cannot appeal without joining the other either as an appellant or as a respondent."
8. ' Cases of this Court, namely, Muhammad Jamil v. Chairman, Industrial Court, West Pakistan (PLD 1964 SC 559) and Shah Muhammad v. Muhammad Bakhsh (PLD 1972 SC 321) were relied upon.
(2) Regarding invoking the discretionary power of the High Court granted by Order 41 rule 20 it was held that no application having been made under the said Rule by the appellant for impleading Ghulam Nabi as co-appellant or as a respondent, this power could not be exercised even if an application was made at the time of ,the hearing of the appeal or thereafter; because, in that eventuality the said application would be "hopelessly time barred".
(3) That the appeal could not proceed in absence of a co-judgmentdebtor who was "jointly and severally liable"; because, "it would not be possible to modify or set aside the judgment and decree".
9. ' Learned counsel for the respondents has reiterated the same points and has also drawn our attention to considerable case-law on Order 41 Rule 4, Rule 20 and Rule 33, C.P.C.
10. ' When we analysed the facts in the case of Shah Muhammad relied upon by the High Court, learned counsel frankly conceded that this ruling was not attracted; firstly, because it related in the facts of that case on the death of a party, and secondly, because the said case was of a period prior to the Law Reforms of 1972 which made considerable changes regarding death of a party during the proceedings in a Civil Court and its effects. Regarding the two cases of this Court-- one reported in PLD 1964 and the other in PLD 1963 the first one relied upon by the High Court and the second one noticed by this Court in its leave granting order as reproduced above, learned counsel maintained his position that the first would apply and the second one was distinguishable notwithstanding the fact that, in our view, the position could be reversed. However, in view of the remand order being passed in this appeal we would not consider it advisable to make any further comment on this particular question.
11. ' Although the general law with regard to impleading of necessary parties in Civil Court proceedings noticed in the first point which prevailed with the High Court, has to be kept in view in appeal proceedings; but, the same is further subject to the particular provisions relating to the joining of the parties and reliefs qua them as provided in the rules relating to appeals and other rules indicating need for doing substantial justice in face of technical difficulties, which cannot be ignored. The Rules which came under discussion before us vis-a-vis the appeal proceedings are, as already noticed Order 41 Rule 4, Rule 20, and Rule 33. Together with them a similar rule as is contained in the Order 33 Rule 5 of the Supreme Court Rules 1980 which has almost a same language as of the 1956 Rules, together with case-law thereon, has been noticed. The provisions of Rules 9 and 13 of Order 1, C.P.C. Together with the case law thereon in addition to the other provisions of the said Order relating to the joining of parties in suits have also been considered.
12. ' The effect of Order 1 Rule 9, C.P.C. Is that, "No suit shall be defeated by reason of the misjoinder or non-joinder of parties, and the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it." Similarly, Rule 13 provides that, "No objection with regard to non-joinder or misjoinder of parties can be raised unless it was taken at the earliest possible opportunity and in all cases where issues are settled at or before such settlement unless the ground of objection has subsequently arisen and any such objection not so taken Shall be deemed to have been waived." These two rules give ample general guidance for determination of a plea of misjoinder or non-joinder. While making general observations on the first point noted by the High Court these principles (contained in Rules 9 and 13 particularly Rule 9) it seems were not kept in mind.
13. ' Again on the same first point the learned Judges were of the view that the same subject when dealt with in appeal would render an appeal as improperly constituted if "one of two judgment- debtors only files an appeal without joining the other either as an appellant or as a respondent."
14. This finding with respect runs counter to the wordings and the spirit of Order XLI Rule 4, Rule 20 and Rule 33 which read as follows:- "4. One of several plaintiffs or defendants may obtain reversal of whole decree where it proceeds on ground common to all.--Where there are more plaintiffs or more defendants than one in a suit, and the dercee appealed from proceeds on any ground common to all the plaintiffs or to all the defendants, any one of the plaintiffs or of the defendants may appeal from the whole decree, and thereupon the Appellate Court may reverse or vary the decree in favour of all the plaintiffs or defendants, as the case may be."
15. "20. Power to adjourn hearing and direct persons appearing interested to be made respondents."Where it appears to the Court at the hearing that any person who was a party to the suit in the Court from whose Afecree the appeal is preferred but who has not been made a party to the appeal, is interested in the result of the appeal, the Court may adjourn the hearing to a future day to be fixed by the Court and direct that such person be made a respondent."
16. "33. Power of Court of Appeal.--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: "Provided that the Appellate Court shall not make any order under section 35-A, in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to make such order."
17. ' It is apparent from what has been reproduced above that where there are more defendants than one in a suit and the decree appealed from proceeds on any ground common to all the defendants, any one of the defendants can file an appeal from the whole decree and thereupon the appellate Court can reverse or vary the decree in favour of all the defendants as the case may be. (Order XLI rule 4). The learned Judges failed to notice this provision. In this case, Prima facie, same decree was passed against the two judgment-debtors jointly and severally and it proceeded on the ground relatable to the accident which was considered joint and several responsibility of the judgment-debtors. It was necessary at least to examine the applicability of this rule even if ultimately it had to be excluded.
18. ' Not only this together with this, Order XLI Rule 33 had a direct bearing in this connection. Even if a defendant-judgment-debtor had not been impleaded, the Court instead of dismissing the appeal could have considered, examining the grant or otherwise the relief/s by virtue of the said Rule; which clearly provided that the appellate Court "shall have power to pass any decree 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."
19. ' It would suffice here to mention a very weighty observation of this Court with regard to interpretation and wide import of this rule in the case of 'Messrs S.M. Yusuf & Bros. v. Mirza Muhammad Mehdi Pooya' (PLD 1965 SC 15): "The terms employed to confer the power are of the widest amplitude to enable an appellate Court to pass decrees according to the justice of the case. The language used is affirmative, and the rule is further strengthened by non-obstante clauses, giving the clear impression that the intention is beneficial, so that no legal right should be denied which the appellate Court considers should be allowed within the framework of the suit. The non-obstante clauses are particularly significant. The fact that the appeal is as to a part only of the decree will not, by itself, restrain the appellate Court's power. Here the whole decree was before the appellate Court, but the other non-obstante clause is directly relevant, for it totally avoids any condition that a party seeking the benefit of the rule should itself have filed an appeal or objection. Therefore, the mere fact of the plaintiff .Not having filed an appeal against the failure of the trial Court to grant a decree against Amanullah Kirmani would not by itself be sufficient to justify refusal to exercise the power under the rule. The principle as stated in the judgment of the High Court, namely, that "in the absence . Of a counter-appeal being filed a decree against another defendant cannot be given" not only constitutes a fetter upon the extremely wide power given to the appellate Court by the Code, but may also be thought to be in direct contravention of a clear provision in the rule.
20. ' We have accordingly referred to the earlier judgment of the same Court in the earlier case of Bakhsh Illahi & Sons to examine the arguments there set out. Four precedent judgments are cited.
21. From three of them, which are mentioned without reference to their particular facts, general propositions are extracted to the effect that the power given by the rule is widely expressed and must be applied with discretion, where interference is required "to adjust the right of the parties in accordance with justice, equity and good conscience" or where the failure to exercise the power "would lead to impossible, contradictory and unworkable orders". These particular considerations undoubtedly are circumstances which would justify the exercise of the discretion conferred by the rule, but it is right that we should say that if these propositions are to be understood as limiting the exercise of the power within the circumstances specified, they would be in excess of the power given to the Courts to interpret and apply a rule expressed in such wide terms as is rule 33. The rule confers unfettered discretion, and anything expressed in negative or restrictive terms, affecting its application, must be accepted as applying only to the particular facts of the case to which the rule is being applied by interpretation. Such an interpretation cannot be extended to all or any other cases, for, in each one, the application of the rule must be made beneficially, and in accordance with the relevant facts."
22. ' The Privy Council case of Muhammad Khaleef Shirazi and Sons v. Les Tanneries Lyonnaises and another (AIR 1926 Privy Council 34) was distinguished, vis-a-vis, the circumstance of the direct appeal to the Privy Council. Another case having bearing on the subject under discussion (interpretation of Order XLI rule 33) is that of 'Province of West Pakistan v. Associated Hotels of India Ltd. (1973 SCM R 367) wherein it was held that the power of the Supreme Court under Order XLIX Rule 5 of the 1956 Rules (Order XXXIII rule 5 of 1980 Rules) is similar as is of lower appellate Courts under Order XLI rule 33. In that connection it was held that when no appeal was filed before this Court by a party, it could nevertheless pass an order that ought to have been passed even though the said party in whose favour the order was to be passed had not appealed. Similarly in the case of Ahmad Khan v. Satter Din (PLD 1981 SC 148) it was held, inter alia, with reference to Order XLI rule 33, C.P.C. That although a party had earlier been non-suited on account of bar of limitation, on merits the case was found fit for exercise of the powers under Order XLI Rule 33, C.P.C. Or under Article 187 of the Constitution to give relief to that party (which had lost on account of bar of limitation).
23. ' The above noticed cases and other similar cases could have been examined by the High Court in connection with second point which prevailed with it namely, that a fresh application under Order XLI rule 20, C.P.C. Would be hopelessly time barred, Firstly, it was assumed without discussion that all the powers of the appellate Court under Order XLI, C.P.C. Were circumscribed by the constraints of the law of limitation. Even if it could be so found, then a further question could have been examined that such constraint as held by this Court in the case of Ahmad Khan not being attracted vis-a-vis, Order XLI rule 33, could it be attracted in case of Rule 20, C.P. C. Again it appears that the High Court fell into error when thinking that the power under Rule 20, C.P.C. Could be exercised only on application to be made by the present appellant. The learned counsel for the respondents frankly conceded that this power essentially is for suo motu exercise. If this would have been examined and the High Court itself had considered that it was necessary to implead Ghulam Nabi, the question of a direction to the present appellant for making a consequential application would then have arisen. And if such an application had been made the question of limitation would then have arisen, which of course might have been resolved in favour of the appellant. The High Court by assuming only one possibility out of several again fell into error regarding the second point.
24. 'The third point which prevailed with the High Court, namely, that the decree was joint and several against the co-judgment-debtor, therefore, it was not possible to modify or set aside the judgment without joining a co-judgment-debtor, was also not properly considered, examined and decided in the context of the Rules already noticed, considerable of case law on the point and the foregoing discussion.
25. ' In the light of what has been stated above this appeal merits acceptance. We order accordingly.
26. The impugned judgment is set aside and the case is remanded to the High Court for fresh decision of the R.F.A. Which shall be deemed to be pending before it.
27. 'Before parting with this judgment it needs to be remarked on pointing out of the learned counsel for the respondents that in the meanwhile the forum of appeal seems to have been changed, vis- a-vis, the pecuniary jurisdiction. In the peculiar circumstances of this case in order to save the parties from extra expenses and time due to the remand order, we in the interest of complete justice direct that the appeal, as it now stands remanded to the High Court, shall be heard and disposed of by itself and shall not be further remanded on consideration of the pecuniary aspect.
28. Secondly while we are cognizant of the fact that leave to appeal has been granted in another case to examine the scope of Order XLI rule 20, C.P. C. In the case of Muhammad Yaqoob and others v.
29. Mst. Zainab -Bibi and others (1987 SCM R 677), we have nevertheless decided this appeal and remanded the case so as to have well considered view of the High Court on this Rule' as also on other rules and questions which arise in the present case and may not arise in the said case of Muhammad Yaqoob. It is in this light that if so considered the Honourable Chief Justice of the High Court may constitute a larger Bench; because, two pre-partition cases referred at the Bar (from the Lahore High Court) were decided by full Bench. A larger Bench in this context might be necessary.
30. ' With the foregoing order of remand, directions and observations, this appeal as already held, is allowed; but, there shall be no order as to costs.