JUDGMENTMUNIR AJSHEIKH, J:- This revision petition has been directed against the judgment dated 25.10.1983 passed by the learned AddkDistrict Judge-I,Okara, whereby the appeal filed by the petitioner as also application moved by her under Order 41 Rule 20 CPC for adding the names of legal representatives of plaintiff No.2 as also defendant No.3 in the memo: of appeal have been dismissed.
2. The facts giving rise to this revision petition shortly stated are; that on 6.2.1965 respondents No.1 to 4 filed a suit for declaration and permanent injunction on the basis of an oral agreement of sale.
On 12.2.1965 i.e. During the pendency of the suit the property was sold by the vendor in favour of the petitioner through registered sale deed who was impleaded as one of the defendants i.e. Defendant No.7 in the suit. The suit was contested by the petitioner. The learned trial Court after framing issues and recording evidence held that the petitioner was not bona fide purchaser and that her purchase of the property was hit by principle of lis pendens and decreed the suit of the plaintiffs. During the pendency of the suit plaintiff No.2 died in the year 1974 and his legal representatives were brought on the record as plaintiffs No.2-A to 2-F. Earlier to this defendant No.3 has also died in the year 1973 whose legal representatives were brought on the record as defendants No.3-A to 3-C.
3. The petitioner feeling aggrieved from the judgment and decree of learned trial Court dated 1.3.1980 passed in favour of the plaintiff filed an appeal before the learned AddkDistrict Judge,Okara, in which instead of impleading the legal representatives of plaintiff No.2 and defendant No.3, she impleaded the deceased-plaintiff No.2 and deceased-defendant No.3. The appeal was filed on 29.3.1980. However, on 8.4.1980 the plaintiffs also filed cross appeal. The said cross appeal it appears was also entrusted to the same learned Judge who passed order on 7.4.1981 in the appeal of the petitioner that the same was connected with other appeal which had to be heard along with appeal, therefore, the case was adjourned to be taken up along with the cross-appeal on 16.5.1981. Similar is the order passed on 16.5.1981 whereby the case was adjourned to 20.7.1981 by observing that it may be put up along with the there appeal. It appears before the said date the appeal was transferred to another Judge who passed an order on 20.7.1981 for registration of appeal and issuance of notices to the respondents and their learned counsel.
Counsel for the appellant/petitioner was present on the said date. Subsequently orders passd in this appeal by the learned lower appellate Court, however, show that thereafter neither the petitioner requested the Court nor the learned Court itself passed any order for hearing of his appeal along with other appeal. The cross appeal filed by the plaintiff was withdrawn by them on23.9.1982.
4. On 8.11.1982 the petitioner filed an application before the learned lower appellate Court under Order 41 Rule 20 CPC for impleading legal representatives of plaintiff No.2 and defendant No.3. This application was contested by the plaintiffs/decree-holders. This application has been dismissed through order dated 1.3.1980 by which the appeal was also dismissed by the learned lower appellate Court through judgment dated 25.10.1983 for the reason that the same was not properly constituted in the absence of legal representatives of plaintiff No.2 and defendant No.3 as parties.
5. Learned counsel for the petitioner on the strength of judgment reported as Hap Sikandar Vs.Malik Khan Muhammad and others (1973 SCM R 420) argued that the filing of cross appeal by the plaintiffs in which legal representatives of plaintiff No.2 as also defendant No.3 were made parties the defect, if any, in the appeal of the petitioner due to their non-joinder stood cured, therefore, the appeal of the petitioner should have been considered and disposed of on merits after allowing her to implead legal representatives of these two deceased persons as party in the appeal.
6. I have examined the rule laid down in this reported judgment on which reliance has been placed.
It was a case of cross suits in which right of preemption was sought to be enforced. Both the suits were consolidated and one judgment was pronounced. It was incumbent under the Pubjab Pre- emption Act, that in each suit rival pre-emptor was to be impleaded as defendant. Both the appeals were heard and disposed of by the learned lower appellate Court which means that at the time of disposal of appeal of a party in which legal representatives were not impleaded in the memo: the other appeal was taken up along with the appeal as it was still pending. It was in these circumstances that the Supreme Court has held that since in the other cross appeal,all the parties were present before the Court, therefore, the defect in the second appeal due to non- implemented of necessary parties stood cured. In the case in hand the cross appeal was not pending when order for dismissal of petitioner's appeal was passed the same having been already withdrawn on 23.9.82. The petitioner's own case was that their implemented was necessary in the circumstances because she herself made an application on 8.11.1982 for that purpose. It was not disclosed in the application that the defect to implead legal representatives of plaintiff No.2 and defendant No.3 stood cured due to the pendency of the other appeal. In this view of the matter, no benefit can be derived by the petitioner from the rule laid down in the said reported judgment.
7. Learned counsel for the petitioner faced with this difficulty tried to over come it by arguing that the Court was vested with un-controlled powers under Order 41 Rule 20 CPC to implead any party who was left out at any stage of the proceedings. Learned counsel for the petitioner derived support for this argument from the remarks made by the Supreme Court in judgment reported as Said Muhammad etc Vs.M.Sardar and others (PLD 1989 SC 532). No doubt in this case it has been held that the Court has the discretion in such cases where circumstances are such that it should be exercised. In the reported case the case made out by the petitiorfer was that while copying the judgment and decree of the trial Court the typist did not mention the names of legal representatives of the deceased party, therefore, it was due to that act of the Court that the petitioner was mis-led and through inadvertence did not implead legal representatives of the deceased. In this case it is manifest from the certified copy of decree-sheet placed on the record of the learned lower appellate Court along with the memo of appeal that the names of legal representatives of plaintiff No.2 and defendant No.3 were incorporated in the said decree. In the reported case the petitioner also made an application under Section' 5 of the Limitation Act for condonation of delay whereas in the present case no such application was made. Even after the other appeal was withdrawn on 23.9.1982, the petitioner did not make application for a considerable time and it was made on 8.11.1982. The time for filing appeal was 30 days and even if the benefit of pendency of second appeal and its withdrawal on 23.9.1982 is given to the petitioner, the application should have been moved along with application under Section 5 of the Limitation Act without further loss of time from the said date. The petitioner acted negligently in the matter. It has been pointed out by the learned counsel for the respondents that Mst.Shauran Bibi widow of Din Muhammad deceased plaintiff has not been impleaded as party in this revision petition though in the application filed by the petitioner before the learned lower appellate Court under Order 41 Rule 20 CPC her name has been mentioned and it was in the knowledge of the petitioner that she was also one of the legal representatives of the said plaintiff. In the application moved by the petitioner before the learned lower appellate Court no reasons were disclosed for not impleading legal representatives of plaintiff No.2 and defendant No.3 except that inadvertantly they were not brought on the record. I am afraid if this was a good ground for seeking indulgence of the Court. The learned lower appellate Court has rightly in these circumstances dismissed the application as also the appeal having not been properly constituted. The conduct of the petitioner has been highly negligent and she was not entitled to any indulgence. Apart from this she having purchased the property during the pendency of the suit as a matter of fact did not have any right to be heard according to well settled law regarding principle of lis pendens.8. The learned lower appellate Court has not committed any material irregularity and illegality in exercise of its jurisdiction in not condoning the default. The revision petition fails which is hereby dismissed with no order as to costs.