1. ' This appeal impugnes the judgment and decree, dated 16-5-1989 passed by learned 1st Senior Civil Judge, Larkana whereby Suit No,7 of 1981 filed by the respondent No,1 Mir Ahmed Khan against the plaintiffs has been decreed and consequently it is prayed that the said judgment and decree be set aside and Suit No,7 of 1981 be dismissed with costs throughout.
2. ' The brief facts of the matter are that the respondent No,1 Mir Ahmed Khan filed Suit No,7 of 1981 against Muhammad Essa (since deceased) on 12-1-1981 in the Court of learned 1st Senior Civil Judge, Larkana for specific performance of contract between the parties and permanent injunction relating thereto regarding the sale of suit property to the plaintiff Mir Ahmed Khan by the defendant/respondent No,2 Muhammad Essa. Thereafter the plaint was amended on 7-4-1982 whereby the appellants Nos.1 to 17 were impleaded as defendants Nos.2 to 18. The defendant No,1 viz. Muhammad Essa filed his written statement and denied that he is the owner of suit property maintaining that in fact he is the owner of other servey numbers adjacent to the suit property. It was also denied that he had ever executed an agreement of sale in favour of the plaintiff/respondent No,1 and contended that the agreement of sale produced by said respondent was forged and fabricated. It is further averred in the written statement filed by the respondent No,2 that the suit land remained in the possession of Ali Bux Khan and Kauro Khan who are defendants Nos.11 and 14 as respondent No,2 used to live at Quetta. Consequently, the said Ali Bux Khan and Kauro Khan used to get the land cultivated and pay the land revenue on behalf of respondent No,2. That thereafter on 20-12-1980 the respondent No,2 had executed a registered general power of attorney in favour, of one Gulsher Khan Khoso who had in fact executed a sale deed in favour of Haji Ali Muhammad Khoso and 16 others who were later joined as defendants Nos.2 to 18.
3. ' The appellants Nos.1 to 17/defendants Nos.2 to 18 filed a joint written statement on 15-5-1982 pleading that the defendant No,1 does not own, the suit land but other land adjacent to it and also supported the defendant No,1 by maintaining that the alleged agreement to sell between the plaintiff and defendant No,1 was forged and fabricated. It is also pleaded in the written statement that the defendant No,1 had on 7-11-1974 entered into an agreement to sell in respect of his own land with the answering defendants for a consideration of Rs,60,000 out of which an amount of Rs,52,500 had been received by the former in part performance and thereafter possession was given to the answering defendants/appellants. The alleged agreement to sell between respondents 1 and 2 is denied as also the factum of possession of the land with respondent No:2.
4. Consequently, it is maintained that in compliance with the agreement to sell, dated 7-11-1974 a registered sale deed, dated 18-1-1981 has been executed in favour of the appellant.
5. ' On the pleadings of the parties following issues were framed:--
(1) What property from the suit property was owned by the defendant No,1?
(2) Whether the defendant No,1 on 5-9-1974 entered into an agreement to sell the suit property to the plaintiff and executed an agreement, dated 5-9-1974?
(3) Whether the defendant No,1 entered into an agreement to sell his land to the defendants Nos.2 to 18 and executed agreement, dated 7-11-1974 and received Rs,52,500?
(4) Whether possession of the land in dispute was transferred to the plaintiff as alleged in the plaint?
(5) To what relief if any is plaintiff entitled?
(6) Whether the suit is time-barred?
(7) What should the decree be ?
6. ' Thereafter the parties proceeded to lead evidence and upon hearing the arguments of the learned counsel the suit was decreed and hence the appeal.
7. ' Before addressing any arguments on the merits of the case, Mr. Abdul Ghafoor Bhurgry learned counsel for respondent No,1 has raised a preliminary objection that the appeal is time-barred.
8. Consequently, by consent it was agreed by both the learned counsel that they would first argue this preliminary issue before touching the merits of the case. Accordingly, I would, therefore, confine myself to the issue of limitation alone.
9. ' In support of his contention that the appeal is time-barred, Mr. Bhurgry has maintained that the decree in suit No,7 of 1981 was passed on 24-5-1989 and the appeal filed on 18-6-1989 against respondent No,1 and respondent No,2 through his legal representative Bostan Ali and not through the latter's legal representatives viz. Legal heirs. According to learned counsel the said legal heirs were only brought on the record through an amended appeal filed on 31-1-1990 which being beyond the period of limitation prescribed for this purpose viz. 90 days rendered the appeal time- barred as the respondent No,2 is a necessary party to the appeal. In this respect learned counsel submits that since respondent No,2 who was the defendant No,1 in the suit had supported the defendants Nos.2 to 18 who are the appellants, therefore, he should have been made a co- appellant in the appeal and if he either refused to come forward or his whereabouts are unknown he should have been made a respondent. As this was done belatedly i,e, his legal heirs were not made a party in time, therefore, the appeal is time-barred. In support of his contention learned counsel has relied upon Nawab Karim v. Chief Settlement Commissioner (1970 SCM R 72), Elahi Bakhsh v. Bhudha and another (1968 SCM R 328) and Muzaffar and 2 others v. Moulvi Aziz Rehman and 2 others (1983 CLC 16 (SC (AJ&K)).
10. ' It is further submitted by the learned counsel that the written statement filed by respondent No,2 in the trial Court was through a defective power of attorney as the same did not empower the attorney to conduct litigation on behalf of the respondent No,2. Therefore, in the eyes of law the decree was ex parte against respondent No,2 and consequently as the rights of said respondent had not been adjudicated before the trial Court he could still support or object to the decree and thus to that extent also respondent No,2 is a necessary party. Learned counsel's next contention is that even otherwise the power of attorney was not executed as per law viz. Article 95 of the Qanun- e-Shahadat Order which prescribes that at least two witnesses should attest a power of attorney.
11. In support of this he has relied upon Babu Muhammad Aslam v. Mst. Rehana Parveen (PLD 1989 Peshawar 185), Muhammad Mehrban v. Sadruddin and another (1995 CLC 1541), Ghulam Qadir v.
12. Abdul Sattar (PLD 1984 SC 12).
13. ' Shahna Khan v. Aulia Khan (PLD 1984 SC 157) and Murid Hussain and others v. Muhammad Sharif (1996 CLC 161).
14. ' On the other hand, Mr. Sikandar Ali Alvi learned counsel for appellants has argued that as the respondent No,2 had sold the property to the appellants, therefore, he is not a necessary party to the appeal and consequently there was no need to either implead him or his legal heirs and as such the appeal was not time-barred. He has relied upon Allah Ditta v. Barkat Ali (1992 SCM R 1974) and Dewan Ali Khan v. Jehandad Khan (1995 CLC 138).
15. ' I have heard both the learned counsel and my conclusions are as follows: ' It would be seen that the answer to the question whether the appeal is time-barred revolves around the basic issue viz. Whether respondent No,2 is a necessary party to the appeal. If the answer to this question is positive the next question to be considered is whether the appeal field against respondent No,2, who admittedly died before the appeal was filed without bringing his legal heirs on the record within time renders the appeal infructuous and/or time-barred. As regards the first issue it would be seen that a necessary party to a suit has been defined in Order 1, rule 10 of the C.P.C. Which empowers the Court, inter alia, to add any party whether as plaintiff or defendant, whose presence is necessary before the Court in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit. As far as an appeal is concerned, Order 41, Rule 20, C.P.C. Provides that where it appears to the Court that any person who was a party to the suit in the Court from whose decree the appeal is preferred but who has not been made a party to the appeal is interested in the result of the appeal the Court may adjourn the hearing to a future date and direct that such person be made a respondent. A proper party is one whose presence is necessary to effectually and completely adjudicate upon and settle all points involved in this suit. Whereas a necessary party is one in whose absence no effective decree can be passed. It is not disputed that respondent No,2 was both a proper and a necessary party to the suit as in his absence neither could any effective decree be passed nor all the points involved in the suit could be effectually and completely adjudicated upon. However, after filing of the written statement the respondent No,2 chose to remain absent from the proceedings. This does not mean that the decree could not be passed in his absence once he has entered an appearance. At the most it could be said that the decree was ex parte as against the respondent No,2. It would also be seen that the respondent No,2 had supported the appellants before the trial Court and pleaded that he had in fact sold the suit property to the appellants although the trial Court came to a different conclusion viz. Respondent No,1 was the lawful owner of the suit property.
16. In my view once the respondent No,2 had washed his hands of the suit property he was no more either a necessary party or a proper party in the appeal as now the contest remained between the appellants on one side and the respondent No,1 on the other. Reference in this regard can be made to Allah Ditta v. Barkat Ali (supra).
17. ' Although I have come to the conclusion that respondent No,2 is not a necessary party hence the issue of time bar need not be decided, however, since learned counsel have submitted extensive arguments on this issue, I deem it fit to give my findings thereon.
18. ' The issue to be considered is whether the appeal admittedly filed against respondent No,2 when he was no more alive would fail since the respondent No,2's legal heirs were only brought on the record after the expiry of 90 days from the date of the impugned decree. In this regard it would be seen that the appeal was filed against respondent No,2 within time viz. Within 90 days of the impugned decree through his legal representative Bostan Ali on 18-6-1989. Thereafter on 31-1-1990 an amended memo. Of appeal was filed impleading his legal heirs also viz. Respondents Nos.2-B and 3-C. Learned counsel for respondent No,1 has submitted that the limitation prescribed in the matter would be as per Article 177 of the Limitation Act which provides 90 days within which legal representatives of a deceased appellant or of a decease respondent can be made a party viz. From the date of the death of the deceased. In any view said article would not apply as it only applies to pending proceedings and not as in the present case when admittedly the respondent No,2 had died before filing of the appeal.
19. ' In any event the factum of an appeal having been filed against a dead person does not automatically render the same liable to be dismissed as after the fundamental changes introduced in Order XXII, Rules 3(2) and 4(3) of the C.P.C. The non-impleadment of the legal heirs of a dead plaintiff or defendant does not abate the suit and the Court is fully empowered to pass judgment and decree despite the same. Although Order XXII, Rules 3(2) and 4(2) only apply to pending proceedings however, by necessary implication these provisions can also be made applicable to cases as the present one where one of the respondents had died before filing of the appeal. In this respect the provisions of section 153 of C.P.C. Could conveniently be pressed into operation for the purpose of amending any defect or error in any proceeding so as to determine the real question or issue raised in such proceedings. Consequently, in my view where failure to bring on the record legal heirs of a dead party in a pending proceedings is not fatal to such proceedings, the failure to implead a dead party through his legal representatives in an appeal would not also be fatal to said proceedings. In this regard reference can be made to Province of Punjab and 3 others v. Gul Muhammad Khan (1998 MLD 2110), Sultan Ahmed v. Muhammad Bux (NLR 1999 AC 748) and Muhammad Yaqoob v. Ali Shah and 8 others (1994 M LD 1843), and as such there would be no question of limitation. It would also be seen that as per the dictum of the honourable Supreme Court in Imtiaz Ahmed v. Ghulam Ali (PLD 1963 SC 382), the proper place of procedure in any system of administration for justice is to help and not to thwart the grant to the people of their rights. All technicalities have to be avoided unless it be essential to comply with them on ground of public policy. Any system which by giving effect to the form and not the substance defeats substantive rights and is defective to that extent ' The matter does not end here. It will be seen that as per the provisions of Order 41 of the C.P.C. Any one of several plaintiffs or defendants may obtain reversal of the whole decree where it proceeds on grounds common to all. In the present case it is an admitted position that both the appellants as well as respondent No,2. Took up the same defence against the respondent No,l. Similarly Order 33 of the same Rule empowers the Appellate Court to, inter alia, pass any decree and make any order which ought to have been passed or made and this power may be exercised by the Court notwithstanding that the appeal is as to part only of a decree and may be exercised in favour of all or any of the respondents or parties although such respondents or parties may not have filed any appeal or petition. In my view reading both the abovementioned provisions together it is quite clear that even if it be considered that respondent No,2 has not been impleaded this would not be fatal to the appeal. Reference in this regard can be made to Punjab Board Transport Board v. Abdul Ghafoor and 6 others (NLR 1999 SCJ 743). Thus in my opinion, the appeal considered from all angles cannot be dismissed on the grounds that it is time-barred, or that in the absence of respondent No,2 it merits dismissal.