This second appeal was directed against the judgment and decree dated 1-6-1970. where by the first appeal of the appellant was dismissed by the learned Additional District Judge, Faisalabad holding that the appeal was incompetently, constituted on account of non-impleadment of District Allottment Committee, a necessary party to the appeal.
2. The factual background of the controversy raised in the suit is that on receipt of notice dated 10- 9-1966 requiring Nathey khan, plaintiff-respondent to remove the construction from the plot in question, he filed a suit for declaration to the effect that the plaintiff is allottee in possession of the plot in question and as such he is entitled to retain its possession and the notice dated 10-9-1966 of the District Allotment Committee is without lawful authority. The plaintiff also prayed for perpetual injunction restraining the District Allotment Committee and Safdar Ali, present appellant, from interfering in his possession over the plot in question. The learned trial Judge after framing the issues and recording the evidence of the parties, decreed the suit of the plaintiff. He recorded the finding that the plaintiff was delivered possession of the plot vide chit Exh.P/5 and though the possession was not regularised by the Committee by issuing formal allotment order but the possession of the plaintiff-respondent cannot be disturbed in view of the declared policy of the Government contained in circular letters Exh.P/2 and P/3. The construction raised by Nathey Khan, plaintiff-respondent, stands admitted.
3. Safdar Ali alone filed an appeal challenging the judgment and decree dated 5-7-1969 passed by the Civil Court. In the appeal so filed on 1-9-1969, the District Allotment Committee was not impleaded as a party. However, during the hearing on 17-11-1969, an application was made seeking permission to implead District Allotment Committee as a respondent to the appeal. This request was not allowed as it was observed that a vested right having accrued in favour of plaintiff- respondent cannot be defeated by allowing impleadment of District Allotment Committe. The learned Additional District Judge in support of this view relied on judgments in the case of National Bank of Pakistan v. Pak Enterprises and others (PLD 1968 Karachi 47) and Qazi Mehar Din v. Mst.
Murad Begum and others (PLD 1951 Baghdad-ul-Jadid 1).
4.Learned counsel in support of the appeal argued that right of a litigant should not be allowed to fail on account of non joining of a party and that ample powers vest in the appellate Court to implead the necessary party for doing complete justice between the parties. In support of the submission, reliance was placed on Muhammad Jamil v. The Chairman, Industrial Court, West Pakistan (PLD 1964 SC 559). In the precedent case, though the employer who was initially omitted from being impleaded as a party was permitted, subject to all just exceptions, to be impleaded as a respondent. However, on objection being taken, it was observed that the employer had acquired a valuable right which could not be taken away from him in the circumstances of the case and so the preliminary objection was allowed to prevail. The learned Judges, however, observed that under Order XLI, Rule 20, C.P.C., the Court had a power in a proper case to allow a necessary party to be impleaded as ' respondent but the power to take such action was discretionary and should not be exercised in case extreme negligence. Learned counsel submitted that the reason for not implead the District Allotment Committee, as respondent to the appeal, was that Safdar All thought that the Committe will file its own appeal. This reason being devoid of force was not accepted by the learned first appellate Court. . The other factor which weighed with the learned first appellate Court was that the plaintiff-respondent was admittedly in possession of the plot in question and had also raised construction thereon. It is also in evidence that though the plot was allotted in the year 1955 but appellant Safdar Ali was not delivered the possession, as such, he himself moved an application requesting refund of the instalments deposited by him waiving his right in the said allotment. The appellant-defendant in his own statement admitted having A riled such an application for refund of the instalment that he had deposited. I Moreover, he neither himself challenged the delivery of possession of the plot in dispute to Nathey Khan nor did he take steps to stop the respondent for raising construction over the plot in question.
In these circumstances even ' the appellant succeeds in appeal that would not be of any avail to- him as h himself has waived his right by moving an application for refund of the instalment. Now, after three decades it will be inequitable to disturb the respondent who had raised this construction and is living in the house for al these years. The exercise of discretion in favour of the appellant, as such, will not advance the cause of justice. The refusal in the circumstances to allow impleadment of District Allotment Committee is justified and interference in second appeal is not called for. The appeal, therefore, fails and is dismissed leaving the parties to bear their own costs.