' Respondent-plaintiff Gul Zaman had brought a suit against Pir Khan and the present petitioners, for a declaration to the effect that the property, details whereof is given in the heading of the plaint is jointly owned by the parties and that certain entries made in column of cultivation of the Revenue Record in favour of some of the petitioners are wrong, against law and facts. Prayer was made for permanent injunction and in the alternate decree was sought for joint possession of the suit land.
2. The suit was decreed in favour of respondent/plaintiff by the learned Senior Civil Judge on 14-5- 1990 but on appeal, the judgment and decree of the Trial Court were set aside and the case was remanded back to the trial Court on 12-9-1992 with the direction that further necessary evidence of the parties be recorded. It so happened that, on remand the learned trial Court re-recorded the same evidence and once again on 21-2-1994 decreed the suit in favour of the plaintiff-respondent.
3. Aggrieved from the judgment and decree of the learned trial Judge, the present petitioner filed an appeal in the Court of District Judge, Abbottabad who vide his judgment, dated 12-3-1995 dismissed the appeal.
4. A short question of law is involved in this revision petition falling within the compass of Order 41 read with Rules 4, 20 and 33 of the Civil Procedure Code. The learned appellate Judge has dismissed the appeal on the ground that in the heading of the appeal one of the defendant Mst.
Zeenat Jan has not been arrayed as appellant while Mst. Jan has been arrayed as respondent when the actual name is Mst. Zafri Jan, hence, the appeal was held to be not properly constituted and, therefore, dismissed.
5. Learned counsel for the petitioner argued that the learned appellate Judge was not correct in deciding the appeal on mere technical grounds without making any reference to the merits of the case. That, under Rule 4 of Order 41 one of the several plaintiffs or defendants are legally entitled to obtain the reversal of whole decree where the same proceeds on a ground common to all. Next, it was contended that Rule 20 of Order 41 empowers the Appellate Court to adjourn the hearing of the appeal with the direction that "persons interested" be made respondents to the case. It was also argued that Rule 33 of the Order (ibid) envisages absolute powers vested in the Appellate Court to pass a decree or order as the case may be, notwithstanding the fact that the appeal has been filed as to the part of the decree or it exercises power in favour of all or any of the respondents or parties although such respondents or parties may not have filed any appeal.
6. Learned counsel for the respondent had no cavil with the legal position as to the power of the Appellate Court to adjudicate on an appeal in terms of Order 41 read with Rules 22 and 33 of the C.P.C. But submitted that in the instant case the appellants have wilfully omitted the name of one of the appellant and have wrongly given the name of one of the defendant in the heading of the appeal, therefore, it was argued that the appeal was wrongly constituted and was liable to dismissal. Further, it was argued that the application for amendment/correction of the names of the appellants and the respondent, belatedly made and hence hit by period of limitation and as such the persons added cannot be termed as "interested persons" because by afflux of time their interest in appeal had abated.
7. After hearing the learned arguments of the parties and having perused the relevant provisions of law I am of the view that on merits the petitioners have made out a case for interference to the extent of setting aside the order of the learned appellate Judge because it appears that in the heading of appeal the name of Mst. Zeenat Jan is though omitted but at the tail end of the pro forma of appeal her name appears alongwith the other appellants. Similarly, at Serial No,6 of the list of the respondents there appears the name of Mst. Jan daughter of Kala wife of Gul Zaman and it has been clarified in the evidence as well as in the application filed for correction of the heading that the name of Mst. Jan shall be read as Mst. Zaffari. It is undisputed that the real and full name of Mst. Jan is Zaffari Jan. Therefore, firstly one can say that there was no omission and at best it was an inadvertent mistake in not naming Mst. Zeenat Jan in the heading of the appeal and giving not full name of Mst. Zaffari Jan in the list of the respondents.
8. Order 41 of the C.P.C. Deals with the form of appeal and its contents. Rule 4 of the Order (ibid) prescribes that when there are more than one plaintiff or defendant in a suit and the decree appealed from proceeds on any ground common to all then all the plaintiffs or all the defendants or any one of them can file an appeal against the whole decree and the Appellate Court may reverse or vary the decree in favour of all the plaintiffs or defendants. Under Rule 20 the Appellate Court can exercise suo motu power to direct that any person who was party to the suit in the trial Court against whose decree the appeal has been preferred and that such person has not been made party to the appeal, can direct that such person be made as respondent. The object of Rule 20 is that the order in appeal should be made effective. This rule gives discretionary power to the Appellate Court and the general principle for exercising discretionary power is that it should be to enhance the interest of justice and to resolve the lis between the parties once for all and also to avoid the filing of independent appeal by some of the judgment-debtors so to avoid the multiplicity of judgments arising out of the same decree of the Trial Court. Rule 33 read with Rule 4 of the Order ibid contains the same object i,e,, to prevent contradictory decrees or orders being passed with respect to the same matter. The underlined object is also to shorten the litigation between the parties instead of prolonging the same.
9. A question was raised by the learned counsel for the respondent that no party can be added after the expiry of period of limitation, which on the face of it appears to be carrying weight. In this respect learned counsel has relied on 1986 CLC page 1706 (Mst. Mehr Nishan v. Mst. Gulzar Begum and 2 others) and PLD 1988 Supreme Court (AJ&K) page 156 (Sakhi Muhammad and 10 others v.
Noor Muhammad and 28 others). Contrary to the view taken in the above cited judgments the august Supreme Court of Pakistan in case reported as PLD 1989 SC page 532 (Said Muhammad and others v. M. Sardar and others has held as below:--- "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 situation 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. 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 not an inviolable rule."
Similarly, in 1993 SCMR page 363 (Mst. Sardar Begum v. Muhammad Anwar Shah and others) it was held that where a party was omitted inadvertently the rigidity in the application of Order 41, Rule 20, C.P.C. Was discussed and was held that the High Court was empowered to act suo motu or on the behest of a party irrespective of provisions of section 22 of Limitation Act, 1908.
' Section 153, C.P.C. (second part) empowers the Court to make all necessary amendments at any time for the purposes of determining the real question or issue and a party should not be denied a relief on account of mere technicalities in the procedural law. It was held that the procedural law is intended and designed to foster the cause of justice and not to defeat it.
10. The reading of Order 41 read with relevant rules leaves no doubt in one's mind that the Appellate Court is vested with absolute discretion to either take suo motu notice for impleading an interested person in the appeal who was party to the suit, or, direct that the said person be impleaded. There is no provision contained in the procedural law which prescribed any time limit on the powers of the Court in respect of exercise of aforesaid powers. Had the intention of the Legislature been so, it would have so mentioned in the law which have empowered the Appellate Court to add parties to the appeal. As there is no express restraint on the exercise of power of the Court of appeal in respect of adding to the heading of the appeal of a person interested in the result of the case, it is held that such powers are not controlled by the Limitation Act, 1908.
11. The learned Appellate Court has decided the appeal merely on the technical ground and has ignored the merits of the case. He could have, notwithstanding rejecting the application of the petitioner for amendment of the heading, decided the case on merits in respect of remaining appellants irrespective what I have held above.
12. For the reasons stated above I am inclined to accept this revision. The judgment and decree of the Appellate Court are set aside and the case is remanded back to the Appellate Judge who shall hear the appeal of the petitioner on merits and shall deem the application for the amendment/alteration of name of Mst. Zeenat Jan and Zaffari Jan having been added in the heading of the appeal and shall decide the case on merits. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.