This revision petition calls into question two concurrent findings given by the Courts below and before whom the present petitioner was not a party but claims to be a bona fide purchaser for consideration from a vendee Khalil Ahmad, who was a respondent before the trial Court and to whom the land in question w4s sold on 4-4-1968. The present petitioners Muhammad Din and Muhammad Ramzan has purchased the said land from Khalil Ahmad on 16-2-1972 whereas the suit was filed in 1978.
2. When this revision petition was admitted for hearing on 31-8-1986, it was admitted to examine the case on the following points:-----
(i) Whether a direct revision in the absence of an appeal to the District Court by a person not party to the suit though aggrieved of the decision can be entertained?
(ii) Whether the remedy under section 12(2), C.P.C. Can be properly availed of by the petitioners, who were not made parties to the suit though they had purchased a party of suit property much prior to the institution of the present suit giving rise to this revision. "
3. The plaintiff had filed a suit for declaration to the effect that the sale Mutation No.209, dated 4-4- 1968 which was attested in favour of Khalil Ahmad in connivance with his brother Nizam Din defendant .No.2 was illegal, void, based on fraud and ineffective against his rights. According to him his real brother Nizam Din got the mutation attested in his favour at a time when the plaintiff was minor. That the plaintiff never appeared before the Revenue Officer and no consideration was paid to him in respect of the suit land. That this way the impugned mutation was void and ineffective against the rights of the plaintiff.
4. The learned trial Court presided by Ch. Faiz Talib Khan, Civil Judge 1st Class vide his judgment on 22-11-1982 decreed the suit of the plaintiff and against the defendants while holding that the plaintiff was a minor at the time of the attestation of the said mutation and further holding that no consideration had passed on to the plaintiff. Both these questions were the subject-matter of Issues Nos.5 and 7 which were framed at the level of the trial Court.
5. The findings of the learned trial Court were upheld on these issues by the first appellate Court presided over by Mr. Atta-ul-Mohsin Lak, Additional District Judge, Gujranwala, who dismissed the appeal of Khalil Ahmad defendant on 6-7-1986.
6. The present petitioners having purchased the land in question from Khalil Ahmad on 16-2-1972 as per their statement made at the time of the filing of the revision petition became aggrieved from the concurrent judgments. They came directly to this Court through the revision petition while pointing out that they being necessary party and having been excluded despite the fact that they were in possession of the suit property as bona fide purchasers and having protection of section 41 of the Transfer of Property Act. 1882 were thus, condemned unheard and that the judgments and decrees in question were, therefore, of no effect on their rights.
7. The learned counsel appearing on behalf of the respondents was barely critical of the act of the petitioners in coming to the High Court invoking its revisional jurisdiction.
8. Order 1, Rule 10 of the Civil Procedure Code reads as follows:-- "10. Suit in name of wrong plaintiff.--- Where a suit has been instituted in the name of the wrong person as plaintiff or where it is doubtful whether it has been instituted in the name of the right plaintiff, the Court may at any stage of the suit, if satisfied that the suit has been instituted through a bona fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as the Court thinks just.
Court may strike out or add parties (2) The Court may at any stage of the proceedings, either upon or without the application or either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely, to adjudicate upon and settle all the questions involved in the suit, be added.
(3) No person shall be added as a plaintiff suing without a next friend or as the next friend of a plaintiff under any disability without his consent.
Where defendant added plaint to be amended.--- (4) Where a defendant is added, the plaint shall, unless the Court otherwise directs, be amended in such manner as may be necessary, and amended copies of the summons and of the plaint shall be served on the new defendant and, if the Court thinks fit, on the original defendant.
(5) Subject to the provisions of the Indian Limitation Act, 1877, section 22, the proceedings as against any person added as defendant shall be deemed to have begun only on the service of the summons."
9. In this connection Order 1, Rule 3 of the C.P.C. May also be referred to which reads as follows:-- "3. Who may be joined as defendants.--- All persons may be joined as defendants against whom any right to relief in respect of or arising out of the same act or transaction or series of acts or transactions is alleged to exist, whether jointly, severally or in the alternative, where, if separate suits were brought against such persons any common question of law or fact would arise. "
10. As a matter of fact it is the duty of a person who is bringing the action, appeal or proceedings to implead all necessary parties to it and his omission to do so calls for remedial action. A necessary party is defined as a party in whose absence no effective decree can be granted in a suit at all whereas a proper party means a party whose presence is necessary for final adjudication of all matters in dispute. (PLD 1954 Lah. 406). A subsequent vendee who purchased a property prior to the institution of a suit becomes a necessary party. (PLD 1974 Lah. 1229 (sic).
Where a necessary party is not impleaded a revision petition becomes) competent because a suit cannot proceed in the absence of necessary party.
11. Non-impleading of a necessary party may render an appeal incompetent In this connection reference may be made to the case Maqbool Begum etc. v. Gullan and others (sic). A relevant excerpt from this case reads as follows:-- "As is evident the view expressed in the above paragraph is quite in accord with long list of precedents quoted therein. In our opinion this was a clear case of an incompetent and not maintainable appeal due to non-impleadment of necessary parties, and as the subject-matter of the dispute, namely the impugned sale of year 1951 in favour of Muhammad Yaqub (vendee/defendant) (now represented by some of his legal representatives namely the petitioners) was an indivisible transaction, therefore, the High Court was justified in holding that the appeal had abated in toto and was not maintainable for the fatal infirmity hereinbefore mentioned. It was argued that if some of the heirs of the vendee had not been impleaded, at the most, it could affect only the shares of the non-impleaded heirs inasmuch as according to Muhammadan Law every heir succeeds only to the extent of his respective share alongwith others though as tenants in common. The contention has no merit inasmuch as the present case is to be examined from the point of view of the oneness of the sale abovementioned and not parts of that sale which was to stand or fall as a whole."
"41. Transfer by ostensible owner.--- Where, with the consent, express or implied, of the persons interested in immovable property, a person is the ostensible owner of such property and transfers the same for consideration, the transfer shall not be voidable on the ground that the transferor was not authorised to make it; provided that the transferee, after taking reasonable care to ascertain that the transferor had power to make the transfer, has acted in good faith."
Since a mutation of sale had taken place transferring the rights from Khalil Ahmad to Muhammad Din and Muhammad Ramzan petitioners which bears No.270 of 16-2-1972 there should have been no difficulty in finding out about the subsequent sale and in making Muhammad Din and Muhammad Ramzan as necessary party.
13. A person if not a party in the trial Court could always prefer an appeal 'if his rights or interest were adversely affected by a decree, Likewise he can also file a revision petition by bringing to the notice of the Court of error about an illegality or material irregularity on the part of the Courts below. This can also be done by the High Court while exercising its suo mote powers in the exercise of its revisional jurisdiction. Therefore, a person who was a necessary party and whose rights and interests were adversely affected by a decree and who was not heard, is competent to invoke the revisional powers of this Court after establishing his bona fides and the rights and interest that he possesses.
14. After hearing the learned counsel for both sides it is patent that a necessary party was left out and was, thus, deprived of the opportunity of hearing and of advancing its pleas. The judgments, and decrees of the Courts below cannot sustain on this ground. These are set aside and the case is remanded to the learned trial Court for allowing an opportunity of hearing to the petitioners. The revision petition is, therefore, accepted with no order as to costs. The District Judge, Hafizabad shall entrust this case to the learned Senior Civil Judge, Hafizabad where the matter be taken up on 21st June, 1999, and in case the parties do not appear the learned Senior Civil Judge shall summon them directly. Since this is an old case this Court feels it proper in directing the learned trial Court to accomplish its disposal by 30th of November, 1999 under report to the Deputy Registrar (Jud1.) of this Court.