AJMAL MIAN, J.---This is an appeal with the leave of the Court against the judgment dated 28-3- 1990 passed by a learned Single Judge of the Lahore High Court in Civil Revision No,1841 of 1983, filed by the appellant against the judgment dated 25-10-1983 passed by the learned Additional District Judge, Okara, whereby the appellant's appeal and also her application under Order XLI, Rule 20, C.P.C., for impleading the legal representatives of plaintiff No,2 and defendant No,3 in the memo. Of the appeal, had been dismissed, dismissing the same. Leave to appeal was granted to consider inter alia the questions, whether the power to bring on record the party omitted inadvertently vested in the High Court, was not a factor sufficient to justify the dismissal of a civil revision; and whether the view taken by this Court that under section 153, C.P.C., the Court can amend any defect or error in any proceedings in a suit or appeal suo motu, can be extended to the present case and can't it be assumed that a similar duty is cast upon the Court by section 153, C.P.C. And other related provisions.
2. The brief facts are that Muhammad Anwar Shah, Din Muhammad, Talib Ali and Zulfiqar Ali (respondents Nos.1 to 4) filed a suit against Naeem Shamshad, Mst. Kubran, Mst. Sairan Shamshad, Mst. Aziz Shamshad, Mst. Tahira Shamshad, and Mst. Shahida Shamshad (respondents Nos.5 to 10) for declaration to the effect that the above respondents Nos.5 to 10 had agreed to sell the suit land in favour of respondents Nos.1 to 4 and for injunction. It appears that in February, 1973, the legal representatives of defendant No,3 were brought on record of the suit after her death. Similarly, the legal representatives of plaintiff No,2 were brought on record on 17-2-1977 after his death, and the names of the above legal representatives of plaintiff No,2 and defendant No,3 were added in the title of the suit. It further appears that during the pendency of the above suit, respondents Nos.5 to 10 sold the suit land to the appellant. She was impleaded as a party to the above suit. According to the learned counsel for the appellant, she was impleaded by the respondents, whereas according to the learned counsel for the respondents, she was impleaded on her own application. Be that as it may, she alone filed appeal on 29-3-1980, in which in the title of the appeal, plaintiff No,2 and defendant No,3 were arrayed as parties instead of their legal representatives. It seems that respondents Nos.5 to 10 also filed a cross-appeal, in which the legal heirs of above plaintiff No,2 and defendant No,3 were also impleaded. Both the appeals were ordered to be heard together.
However, on 13-9-1982, respondents Nos. 5 to 10 withdrew their appeal. It further seems that on 13- 12-1983, the appellant filed an application under Order XLI, Rule 20 and Order I, Rule 10 read with section 151, C.P.C., for impleading the legal representatives of plaintiff No,2 and defendant No,3, paras. 4 and 5 of which read as follows:-- "4. That this Honourable Court has ordered the substitution of Din Muhammad defendant No,2's legal heirs and defendant No,7's legal heirs to be brought on the file, who are interested persons and are to be heard in appeal.
5. That under these circumstances, inadvertently their legal representatives could not be brought on the record and the appeal being continuation of the suit, the legal heirs can be brought on the record at this stage. They being interested parties can be added in the interest of justice."
However, the above application was dismissed by the learned Additional District Judge by his aforesaid judgment dated 25-10-1983. Consequently, the appeal was also dismissed for the following reasons:-- "From the law laid down in AIR 1927 Privy Council p.252 latest finding by the superior Courts as contained in 1980 CLC 1581 it was observed, that where a necessary party has been omitted to be impleaded as party in appeal within the prescribed period of limitation the same could not be impleaded afterwards, as valuable right had accrued to the respondent concerned. In the instant case since no justification has been advanced as to why heirs of the deceased Din Muhammad plaintiff in the suit and Mst. Sairan Shamshad the defendant in the suit were not impleaded as respondents in the appeal particularly when the legal representatives were impleaded during the pendency of trial as already pointed out above and their names were mentioned in the decree- sheet. It is also clear from the contents of the plaint that Din Muhammad whose heirs were decree- holders jointly with the other respondents had a valuable undivided right in the land under the decree. Similarly the liability of heirs of Mst. Sairan Shamshad was also joint alongwith other defendants in the suit land, as such, the heirs of the two deceased being necessary party could not be impleaded at this stage of the case. The application having been moved after two years of the institution of the appeal, is not maintainable in the eye of law."
Thereupon, the appellant filed above civil revision, which also failed for the following reasons:-- "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 inadvertently 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 pendent."
After that, the appellant filed a petition for leave to appeal, which was granted to consider the above questions.
3. Mr. A.R. Sheikh, learned Sr. A.S.C. Appearing for the appellant, has urged that the learned Additional District Judge was not justified in dismissing the appellant's above application for impleading the legal representatives of plaintiff No,2 and defendant No,3 as their names were omitted inadvertently and in their place, the names of the above plaintiff and defendant were arrayed in the title of the appeal. It has been further urged by him that under Order XLI, Rule 20 read with Order I, Rule 10 and section 153, C.P.C., the learned Additional District Judge as well as the learned Judge in chamber had sufficient power to rectify the above omission in the interest of justice.
On the other hand, Ch. Imdad All Khan, learned A.S.C. Appearing for the respondents, has contended that on account of omission on the part of the appellant to implead the legal representatives of above plaintiff and defendant, and upon the expiry of the limitation period, a right accrued to the respondents, which could not have been taken away by the two Courts below without sufficient cause, which was lacking in the present case and, hence, both the Courts were justified in declining the appellant's above application.
4. The Courts below as well as the learned counsel for the parties have referred to inter alia the following cases:--
(i) V.P.R.V.. Chockalingam Chetty v. Seethai Ache and others (AIR 1927 PC 252); in which the facts were that the plaintiff's suit was dismissed against which, the plaintiff filed an appeal but joined some defendants as respondents. The appellate Court declined to implead, after the expiry of limitation period, the defendants who were omitted on the ground that doing so would deprive those defendants from valuable right, which they had acquired in consequence of the plaintiff's failure to appeal against the decree in so far as it affected them. Upon appeal, the Privy Council maintained the above order and dismissed the appeal. While dilating upon Order I, Rule 10 and Order XLI, Rule 20, C.P.C., the Privy Council made the following observations:-- "When parties are added by the Court after the institution of a suit under Order I, Rule 10(2), section 22, Limitation Act, provides that the date when they are added is to be deemed to be the date of the institution of the suit so far as they are concerned for purposes of limitation and the rights which they may have acquired under the Limitation Act are, therefore, sufficiently safeguarded. The addition of a respondent whom the appellant has not made a party to the appeal is expressly dealt with in Order XLI, Rule 20 on which the plaintiff relied, both, in the appellate Court and before their Lordships. That rule empowers the Court to make such party a respondent when it appears to the Court that he is interested in the result of the appeal.
Giving these words their natural meaning - and they cannot be disregarded - it seems impossible to say that in this case the defendants against whom these suits have been dismissed, and as against whom the right of appeal has become barred, are interested in the result of the appeal filed by the plaintiff against the other defendants. It was for the plaintiff-appellant, who applied to the Court to exercise powers under this rule, to show what was the nature of their interest and this he has failed to do.
Their Lordships are, therefore, of opinion that the appellate Court was right in rejecting his application under this rule."
(ii) Labhu Ram and others v. Ram Partap and others (AIR 1944 Lah. 76); In the above case, the facts were that the defendants, who were originally parties to the suit, were not impleaded in appeal by other defendants till the expiry of the limitation period. The questions, whether the above omitted defendants could be impleaded by the Appellate Court under Order XLI, Rule 20, and whether the delay could be condoned under section 5 of the Limitation Act, came up for consideration before a Full Bench of the Lahore High Court. It was held that once time for an appeal has run out, it is not possible for an appellant subsequently to implead those defendants who were not originally impleaded as respondents in the appeal. It was further held that in a case in which a necessary party to an appeal has been omitted, the Court cannot exercise any power vested in it under Order XLI, Rule 20 to cover the omission and that Appellate Court could not exercise its powers under Order XLI, Rule 20, C.P.C. If limitation had already expired. It was also held that no question of limitation arises in such case and that no right vests in any appellant to make an application under Order XLI, Rule 20, C.P.C. It was further held that a discretion to add a party, who is interested in the result of the appeal, is vested in the Court alone and it is the Court that can make that order suo motu. It was also held that in presence of special provision in the form of Order XLI, Rule 20, C.P.C., the provisions of Order I, Rule 10, C.P.C. And section 107(2) cannot be invoked.
(iii) Muhammad Jamil v. The Chairman, Industrial Court, West Pakistan and another (PLD 1964 SC 559); in which the facts were that an appeal against an award of Industrial Court of West Pakistan, Lahore, with the leave of this Court was filed. It appears that the employer was not impleaded as a respondent by the appellant. The appeal was dismissed on the ground of non-joinder. The request of the learned counsel for the appellant to implead the employer under Order XLI, Rule 20, C.P.C.
Was declined. While dismissing the above appeal, the following observations as to the accrual of the right to the employer and as to the exercise of discretion under Order XLI, Rule 20, C.P.C., were made:- "The employer is therefore, entitled to hold to the award which is in his favour and in the words of Sir John Wallis in V.P.R. Chockalingam Chetty v. Seethai Ache and others (AIR 1927 PC 252) it is 'a substantive right of a very valuable kind of which they should not lightly be deprived'. In these circumstances Mr. Zafar has rightly contended that in the absence of the employer it would not be possible to modify or set aside the award.
Mr. Zaman has prayed for condonation of the delay. No doubt under Order XLI, Rule 20 of the Code of Civil Procedure the Court has power in a proper case to allow a necessary party to be added as a respondent, but the power to take the action is discretionary and should not be exercised in case of extreme neglect. On 13th February, 1963, the Court enquired suo motu why the employer was not added as a party in this case and the appellant thereafter on 19th February, 1963, filed a petition for adding the employer as a respondent in the appeal. He however, even then did not file any petition for condonation of the delay. In the petition he merely stated that through inadvertence he did not implead the employer as a party. The employer has acquired a valuable right which we do not think should be taken away from him in the circumstances of the present case. The preliminary objection therefore ought to prevail."
(iv) Said Muhammad and others v. M. Sardar and others (PLD 1989 SC 532); In the above case, the facts were that the appellants filed an application under Order XLI, Rule 20, C.P.C. For seeking to implead one of the defendants on the ground that the typist, while making out copies of the judgments and decrees, inadvertently omitted the name of said defendant and because of this error, the name of said defendant as one of the respondents, was left in the memorandum of appeal. Application for condonation of delay under section 5 of the Limitation Act was also filed by the appellants, but the Courts below declined. However, when the matter came up for hearing before this Court, Muhammad Haleem, C.J., after referring to the relevant case-law including the above-referred cases, made the following observations:-- "From the above discussion, the statement of law in V.P.R.V. Chockalingam Chetty's case stands explained and the preponderance of opinion is against the rigid view taken in Lubhuram's case.
The Legislature in its wisdom by enacting Order XLI, Rule 20, C.P.C. Empowered the Court to allow a party to be added in an appeal already filed when none could be added after the limitation had run out. The purpose more or less is the same as that with investing the Court with the powers to condone the delay under section 5 of the Limitation Act which is not in terms applicable. The purpose is not far to seek as the Legislature must be presumed to have visualized situations where there could be an omission to implead the necessary parties either as a result of bona fide mistake or on account of no mistake of a party seeking addition of the necessary party or for some other justifiable reason.
The rigidity in the application of Order XLI, Rule 20, C.P.C., as concluded in Labhuram's case that where a party is not impleaded in appeal within the period of limitation he can never be deemed to be an interested party in the result of the appeal, is no longer an inviolable rule. In this milieu, this Court in Muhammad Jamil's case examined the question of negligence but did not implead the necessary party in the exercise of its discretion irrespective of the fact that the limitation had run out. This confirms the legislative intent in enacting Order XLI, Rule 20, C.P.C.
Further as to the reason that although the Court can exercise such powers suo motu yet it is deprived from exercising such powers at the instance of the party is also of no substance for it would make no difference even if it is initiated by the party whose move for the addition of a party is necessitated by the circumstances of the case as in that event too it will be an exercise of suo motu power. This will be in consonance with the principle that the Court will ordinarily exercise power because technicalities notwithstanding laws or procedure are meant for the advancement of justice and not for denying it."
(v) Pakistan Water and Power Development Authority and another v. Alam Khan (PLD 1991 SC 374); in which the facts were that the plaintiff in the suit, instead of impleading WAPDA as a defendant, impleaded the Chairman, WAPDA. However, later on upon the application of the plaintiff, WAPDA was substituted in place of Chairman of WAPDA. It was urged before the Courts below that since WAPDA was impleaded in the suit after the expiry of limitation, the suit should have been dismissed on the ground that the same was filed after the expiry of limitation period in view of section 22(1) of the Limitation Act, but the above contention was repelled by the Courts below. The same point was urged before this Court in a petition for leave to appeal. This Court, while declining the above petition for leave to appeal, commented upon the above question as under:-- "The objection was raised before the learned lower Appellate Court also but it repelled the same observing that no substitution or addition of a party had taken place in this case and only misdescription of one of the parties was rectified by an amendment. The cogency of this view is unassailable. It is manifest from the plaint that the relief had been sought against the WAPDA.
However, it was described as the Chairman, WAPDA instead of the WAPDA through the Chairman.
The description was corrected by an amendment. The Chairman is an integral part of the WAPDA and the two are not distinct and independent legal entities. It was, therefore, not a case of addition or substitution of a party and did not attract the provisions of section 22(1) of the Limitation Act.
The reasoning of the learned Courts below which was upheld by the High Court in its revisional jurisdiction has not been successfully assailed by the learned counsel. It has also statutory support.
Section 153 of the Civil Procedure Code reads as follows:-- "Section 153. General power to amend.- --The Court may at any time, and on such terms as to costs or otherwise as it may think fit, amend any defect or error in any proceeding in a suit; and all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on such proceeding."
The second part of the afore-noticed provision applies in this case. That being so it was the duty of the Court itself to make necessary correction in this plaint. It was thus a case of correction of the proceedings. There is no question of limitation involved. Leave to appeal, accordingly, is refused."
5. The view taken by the Privy Council in the case of V.P.R.V. Chockalingam Chetty (supra) has not been dissented from by this Court, but has been explained in the case of Said Muhammad (supra) and it has been pointed out therein that preponderance of opinion, discernible from the case-law discussed, is against the rigid view taken in Labhuram's case by the Full Bench of the Lahore High Court. In the above case, it has also been held by this Court that the rigidity in the application of Order XLI, Rule 20, C.P.C. As concluded in Labhuram's case that where a party is not impleaded in appeal within the period of limitation, he can never be deemed to be an interested party in the result of the appeal, is no longer an inviolable rule. It has been further held that the power contained in Order XLI, Rule 20, C.P.C., can be exercised by the Court suo motu or at the behest of a party. We may also observe that in Pakistan Water and Power Development Authority's case (supra), in which in place of WAPDA, the Chairman of WAPDA, was impleaded as the defendant, amendment as to the description of the defendant was allowed by the Courts below after the expiry of the limitation period on the ground that it was not a case of addition or substitution of a new party as to attract the principle laid down in section 22(1) of the Limitation Act, but it was merely correction of the description of a party and, therefore, question of limitation period was not involved. This Court, while declining petition for leave to appeal, accorded its approval to the above approach of the Courts below and further observed that second part of section 153, C.P.C., which inter alia empowers the Court to make all necessary amendments at any time for the purpose of determining the real question or issue, was attracted to.
6. We are inclined to hold that there is marked distinction between adding or substituting a party and bringing on record legal representatives of a deceased party. The provision of section 22 of the Limitation Act which provides that if a party is added to a pending suit as a defendant, the suit so far as he is concerned for the purpose of limitation, shall be deemed to be instituted on the date when he is impleaded, cannot be pressed into service in case when legal representatives of a deceased plaintiff or defendant are to be brought on record under Order 22, C.P.C. We may further observe that prior to the promulgation of the Law Reforms Ordinance, 1972 (Ordinance XII of 1972) hereinafter referred to as the Ordinance, by virtue of Rules 3 and 4 of Order 22, C.P.C., the effect of omission to bring the legal representatives of a deceased plaintiff or defendant was that the suit used to abate against him. But this has been done away by the Ordinance and, therefore, after the enforcement of the Ordinance, no suit can abate on the above ground. The Legislature in its wisdom thought it proper not to allow abatement of a suit on account of omission to bring legal representatives of a deceased plaintiff or defendant on record. Now a valid decree can be passed even in the absence of the legal representatives of a deceased defendant. This is subject to the right conferred on the legal representatives to apply for setting aside judgment/decree under sub- rule (2) of Rule 9 of Order XXII, C.P.C. Furthermore, newly added Rule 26 of Order VII and Rule 13 of Order VIII, C.P.C. Enjoin a plaintiff and a defendant to file a list of his legal representatives and to give the name and address of the person, who would intimate to the Court about the death, while presenting plaint and filing of written statement, respectively.
7. We may observe that the recent judgments rendered by this Court in the cases of Said Muhammad and the Pakistan Water and Power Development Authority (supra) indicate that a party should not be denied a relief on account of technicalities in the procedural law, as the same are framed for the purposes of regulating the legal proceedings, they are intended and designed to foster the cause of justice rather than to defeat it.
8. In the present case, the legal representatives of plaintiff No,2 Din Muhammad and of defendant No,3 Mst. Sairan Shamshad were brought on record in the suit. The title of the plaint was amended and the above parties were described as under:- "Plaintiff No,2:
2. Din Muhammad son of Daulat Shah (deceased) through legal heirs:
(i) Mst. Gullan Bibi widow,
(ii) Ahmad Raza, son,
(iii) Muhammad Raza, son,
(iv) Yasmin, daughter,
(v) Gulshan Nasim, daughter, minors through , their mother Mst. Gullan Bibi.
(vi) Shakeela Nasreen, daughter
(vii) Saleem Raza, son residents of Chak No,40-A/4-L, Tehsil and District Okara." "Defendant No,3:
7. Mst. Sairan Shamshad daughter of Shamshad Ali Khan (deceased) represented by:-- 7-A Muhammad Saghir Ahmad Khan,minors through Muhammad Saghir Ahmad Khan, their father.
7-B Mst. Rubina d/o Saghir Khan 7-C Haq Nawaz s/o Saghir Khan residents of Kucha Rizvi, Renala Khurd, Tehsil and District Okara."
It seems that the appellant, while filing appeal before the District Judge, in the title of the plaint, omitted to type the names mentioned in paras.
2.B (i) to (vii) and paras. 7-A to 7-B though she mentioned the names of plaintiff No,2 and defendant No,3 in above paras. 2 and 7 of the title of appeal and also filed a certified copy of the judgment, which contains the names of their legal representatives. The above omission, according to the appellant, had occurred due to inadvertence. In the case of Said Muhammad (supra) the typist, while typing the names of the defendants as respondents in the memo. Of appeal, due to inadvertence, omitted to type the name of one of the defendants. The Courts below declined to implead the above defendant after the expiry of limitation, but this Court allowed the same in appeal. In the case in hand, the learned Additional District Judge declined to implead the legal representatives of the above two parties on the ground that no justification had been advanced, particularly when the legal representatives were impleaded during the pendency of the trial. He was also of the view that the application having been made after two years of the institution of the appeal, was not maintainable in law. The learned Judge in chamber, while declining revision, opined that inadvertent omission was not a good ground as the conduct of the appellant had been highly negligent, she was not entitled to any indulgence and that the appellant 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. In our view, the two Courts below failed to apply ratio decidendi of the case of Said Muhammad (supra), which was attracted to the present case. The factum that the appellant had applied for impleading the legal representatives after the expiry of more than two years, warranted granting of costs to the respondents. We are inclined to hold that this Court has ample power under Order XLI, Rule 20, read with section 153, C.P.C. To allow the impleading of the legal representatives of above plaintiff No,2 and defendant No,3. We would but subject to payment of Rs,10,000 as costs to the respondents within a period of one month from the date of this judgment, failing which, the judgments of the Courts below shall remain intact. In case the appellant pays the above costs within the above period, the learned Additional District Judge shall hear appeal afresh after notice to the parties including the legal representatives of plaintiff No,2 and defendant No,3, who shall be arrayed in the title of the memo. Of appeal as respondents.
9. The appeal stands disposed of in the above terms, with no order as to costs.