' CHAUDHARY MUHAMMAD RIAZ AKHTAR, J.---To impeach the judgment and decree of the Sub- Judge, Muzaffarabad, dated May 9, 1988, the present appeal has been filed.
2. The brief relevant necessary facts for the disposal of this appeal are, that the respondents 1 and 2 filed a suit against the respondent No,3 for declaration cum-specific performance of a contract in the Court of Sub-Judge, Muzaffarabad on March 6, 1988. It has been alleged by the respondents (plaintiffs), that the land measuring 45 Kanals and 15 Marlas bearing Survey No,164 (11 Kanals and 5 Marlas), 161/1 (10 Kanals and 9 Marlas), 162 (3 Kanals), 163 (1 Kanal and 14 Marlas), 170 (3 Kanals), 178 (7 Kanals and 8 Marlas), 179 (1 Kanal and 11 Marlas), 180 (7 Marlas), 181 (7 Kanals and 2 Marlas), situated in village Arukhatar District Muzaffarabad has been alienated to the plaintiffs-respondents Nos.1 and 2 by the respondent No,3 defendant vide an agreement, dated February 1st of 1988. Now due to the aforesaid agreement, respondent No,3 (defendant) is bound to transfer the aforesaid land to the respondents Nos.1 and 2 plaintiffs, but the respondent No,3 defendant has refused to accept the rights of the plaintiffs, so the plaintiffs prayed that a decree for the Specific Performance of Contract may be passed, that the defendant is bound to transfer the aforesaid land to the plaintiffs and he should transfer the same to the plaintiffs and it may also be declared that the plaintiffs are owners of the above-mentioned land.
3. The case was fixed for April 16, 1988. On April 16, 1988, the defendant/ respondent No,3 filed Iqbal Dawa and admitted the suit filed by the (plaintiffs) respondents Nos.1 and 2. The learned Sub- Judge, Muzaffarabad recorded the statement of defendant/respondent No,3. The case was fixed for proper order for 10th May, 1988. The present appellant filed an application before the learned Sub-Judge for impleading him as a party. In the application, it was alleged that the land bearing Survey No,164 measuring 11 Kanals and 5 Marlas has been alienated to the appellant by the defendant No,3 since 12 years ago, so now the defendant has no concern with the aforesaid land measuring 11 Kanals and 5 Marlas in dispute hence, the appellant may be impleaded as a party.
The learned Sub-Judge entertained the application on May 8, 1988.
4. The plaintiffs moved an application on 9-5-1988 before the learned Sub-Judge, that in this case the next date of hearing is May 10, 1988, but on the last date the defendant has accepted the suit filed by the plaintiffs. Now the plaintiffs have to go to Pakistan to earn their livelihood, so the file may be restored and the order may be passed. The learned Sub-Judge on this application, passed a decree on May 9, 1988 in favour of the respondents Nos.1 and 2 and against the respondent No,3 for specific performance of contract.
5. Now the appellant has impugned this judgment and decree of the learned Sub-Judge, Muzaffarabad.
6. The learned counsel for the respondents raised a prelminary objection, that the appellant was not a party to the suit in the lower Court. No decree has been passed against the present appellant, hence he is not competent to file an appeal. It is settled law that only a party to the suit can file an appeal. As the present appellant is concerned, neither he was a party before the lower Court nor any decree has been passed against him so he is a stranger to the suit and he cannot file the appeal.
7. On the other hand, the learned counsel for the appellant while replying the arguments of the learned counsel for the respondents contended, that although no decree has been passed against the appellant, but the decree has been passed regarding the land measuring 11 Kanals and 5 Marlas bearing Survey No,164 which has been purchased by the appellant, so the appellant has been adversely affected by the decree of the lower Court.
8. He further maintained that on May 8, 1988, the present appellant filed an application for impleading him as a party. The learned Sub-Judge has passed a decree in favour of respondents Nos.1 and 2 without the disposal of the application of the appellant. It was incumbent upon the Sub-Judge that he should have disposed of the application of the appellant.
9. We have heard the learned counsel for the parties, and have perused the record of the case and have given our passionate thoughts to the arguments advanced by the learned counsel for the parties.
10. The preliminary proposition which emerges, is that whether a person who is not a party to the proceedings in the lower Court or against whom no decree has been passed, can file an appeal or not. A stranger to a suit or a proceedings is not prohibited by the C.P.C. From filing an appeal from an order or decree passed therein. There is no express provision permitting such a party to file an appeal against such order. This omission cannot be undertaken to amount to prohibition.
' An appeal would lies under section 96 of the C.P.C. It only enumerates the decrees against which an appeal would lie. It has nowhere been provided in section 96 of the C.P.C. That who will file the appeal, but it has been laid down in section 96 of the C.P.C. That an appeal shall lie from every decree passed by any Court exercising original jurisdiction. It means, that the appeal lies against the decree. It is the only decree against which appeal lies.
12. The provisions of the C.P.C. Do not in terms say, that who is entitled to prefer an appeal; Nor provide any prohibition, that who is prohibited from filing an appeal. This does not mean that any omission in the procedure will be taken as prohibition. Any omission in the procedure cannot be taken as prohibition, unless it is expressly prohibited. Nowhere in the C.P.C. a stranger to the suit has been prohibited from filing any appeal. He can only maintain appeal if he has been adversely affected by such decree or order, so a stranger to the suit adversely affected by the decree or order of-the Court can file an appeal. The same view finds support from PLD 1969 SC 65 which reads as under:-- "The Court ought not to act on the principle that every procedure is to be taken as prohibited unless it is expressly provided for. To give such a meaning to the omission would result in grave injustice. The facts of this case are clearly example in point. The Court should proceed on the principle that every procedure which furthers administration of justice is permissible even if there is, no express provision permitting the same. Section 96 of the C.P.C. Deals with appeals from decrees and section 104 deals with appeals from orders. These provisions do not in terms say who is entitled to prefer an appeal. The Code, however, lays down that it is the decree or the order that has to be appealed against. If the decree or order appealed from adversely affects a person he should be permitted to challenge the same in appeal even if he was not made a party to the original suit or proceedings."
' The same view was adopted by our own High Court in an unreported case titled Noor Muhammad v. Fazal Elahi.
13. We are in respectful agreement with the view expressed in the aforesaid authorities and would like to add further, that procedural law should not be construed strictly so as to put the parties to undue inconvenience because the principal object behind all legal formalities is to safeguard the paramount interest of justice. No one should be defeated merely on the basis of technicalities unless offering insurmountable hurdles. Legal technicalities should not be allowed to stand in the way of justice unless they present hurdles which might lead to unsettlement and uncertainty of law.
14. All the rules of the procedural law have been enacted for the purpose of administration of justice. The basic purpose of all the rules is to serve the administration of justice and they should be subordinate to it.
15. The Court while interpreting the procedural law should keep in consideration the basic object of the procedural law and should construe it liberally. This view finds support from 1981 CLC 188. Thus, preliminary objection raised by the learned counsel for the respondents is hereby repelled.
16. It is most unfortunate that the learned Sub-Judge Muzaffarabad has decided the case without the perusal of the file and without the disposal of the application of the appellant. He should have decided the application of the appellant in one way or other. Thus, the learned Sub-Judge has passed the decree illegally without the disposal of the application of the appellant.
17. The nutshell of the above discussion is that this appeal succeeds and the judgment and decree of the lower Court, dated May 9, 1988, is set aside and the file is remanded back to the trial Court with the direction that the trial Court should firstly decide the application regarding the impleading of party and then decide the case in accordance with law.