1. ' SARDAR SAID MUHAMMAD KHAN, C.J.---This appeal has been directed against the order of the High Court, dated 15-9-1998, whereby revision petition filed by the appellants, herein, was dismissed for noncompliance of the order of the Court whereby the appellants herein, were called to deposit the process fee.
2. ' The learned counsel for the appellants has argued that in fact process fee had been deposited as was directed by the Court but {{URDU TEXT}} was misplaced somewhere and thus, was not traceable. The learned counsel has maintained that even otherwise, the respondents 11 and 12 for whom the process fee had to be deposited were pro forma-respondents and thus, failure to deposit process fee could not entail dismissal of the appeal at all. The learned counsel has referred to a case reported as Maqbool Hussain v. Jamal Din and others (1992 SCMR 392), wherein it has been held that if a defendant or plaintiff is not a necessary party, the death of such party would not result in dismissal of the suit. It was held that as Rahim Bakhsh, whose legal representatives were not brought on record, had sold whole of his share in suit land in lifetime, he was no more necessary party. Thus, it was held that the suit could not abate as a result of non-implement of his legal representatives.
3. ' Mr. Ghulam Mustafa Mughal, the learned counsel for the respondents, has argued that it is correct that concerned respondents against whom the default in question was committed, were pro forma-respondent, yet in their absence the appeal became improperly constituted and thus was rightly dismissed as a whole by the High Court. The learned counsel has argued that as the suit filed by the appellants was one for the adverse possession, it was not possible to ascertain the specific interest of the appellants and the pro forma-respondents. Thus, according to the learned counsel, the revision was rightly dismissed in toto for failure to deposit the process fee in respect of pro forma-respondents Nos. 11 and 12. The learned counsel has cited the following authorities in support of his contention:--- ' In case reported as Afajahhin v. Javed and others AIR 1930 Cal. 346, the facts were that suit for possession of certain land contested by the defendants Nos. 4 and 5 was dismissed by the trial Court. On appeal by the plaintiff, the service on defendants-respondents Nos. 4 and 5 was not effected and the appeal was dismissed against them; against remaining respondents the appeal was subsequently dismissed in default. However an application was made by the plaintiffs for the restoration of the appeal wherein all the defendants, including respondents Nos. 4 and 5 were impleaded as opposite-parties. One of the points involved in the case was that as the share of respondents No, 4 and 5 was ascertainable, the appeal for non-complaince of Court's order could only be dismissed against them and not as a whole. It was held that as there was likelihood of contradictory decree the appeal must fail as a whole, despite the fact that shares of respondents were ascertainable.
4. ' In case reported as Basir Shaikh and others v. Fazle Karim Biswas and others AIR 1915 Cal. 786 a decree for joint possession was passed against the plaintiffs. Appeal was preferred which was dismissed as a whole for failure to effect service of notice upon some of the respondents observing that decree for the joint possession being indivisible, the appeal must fail as a whole and not only against the respondents about whom default was committed.
5. ' In case reported as Nawab Bibi and another v. Mst. Mehraj Begum and 14 others PLD 1975 Lah. 1167 it was held that dismissal of appeal under Rule 18, Order 41, C.P.C. Is not warranted if the default in deposing the process fee pertains to the pro forma-defendants. It was observed that there may be cases in which the dismissal of the appeal against some of the respondents may adversely effect the continuance of the appeal by rendering it as being improperly constituted; in such cases the appeal must be dismissed as a whole. However, it was observed, that as the respondents were pro forma-respondents, the dismissal of entire appeal was not justified. It was observed in the said appeal that as the respondents Nos. 2 to 15 had no interest so far 1/3rd share of Chiragh Din was concerned and they were impleaded merely as pro forma-defendants, the dismissal of the appeal as a whole was not warranted. Hence, the appeal was allowed to be proceeded against respondent No,1, despite the failure of service on the pro forma respondents.
6. ' We have given due consideration to the matter. So far as the contention of the learned counsel for the appellant is concerned that the appellant had deposited the process fee but same was misplaced somewhere, is not tenable, specially so when no such contention was raised before the High Court. Therefore, mere filing of an affidavit by the appellant in support of the said contention would not help the case of the appellant.
7. ' There is no quarrel with the proposition that it the notices are not served on some of the respondents due to failure of depositing the process fee the revision or appeal can be generally dismissed only to the extent of respondent who were not served and not in toto. However, if in case of the failure of service on the concerned respondents the revision or appeal does not remain properly constituted, it must fail as a whole. In the instant case the appellants-plaintiffs sought declaration 'for adverse possession on the suit land in their favour as well as in favour of respondents Nos. 11 and 12 whom he impleaded as pro forma-defendants in the suit and subsequently as pro forma-respondents in the revision petition filed in the High Court. The moot point in the case which needs resolution is as to whether failure to serve the pro forma-respondents in the instant case would result in the dismissal of the revision petition in the High Court in toto, or only to the interest of the pro forma-respondents. The parties may be impleaded as pro forma-respondents or defendants for variety of reasons; no hard and fast rule can be laid down that failure to deposit process fee in case of a pro forma-defendant or a pro forma-respondent would entail a partial dismissal of the cause or it would result in its total dismissal. It depends upon the circumstances for which the concerned party was impleaded as a pro forma-defendant or pro forma-respondent. In the instant case according to the appellant case the decree for adverse possession was prayed for by the appellants and respondents No, 11 and 12 jointly. It is not mentioned in the plaint that plaintiffs and pro forma-defendants were in possession of separate parcels of land and thus the decree or adverse possession could be passed for separate parts. Obviously, the claim of the appellants and pro forma-respondents was joint and inseparable. Thus, the interest of the plaintiffs and respondents Nos. 11 and 12 being indivisible, respondents Nos.1 and 12 were necessary party to the suit or for that matter to the appeal. It may be observed that in case reported as AIR 1930 Cal. 346, relied upon by the learned counsel for the respondents, the appeal was dismissed as a whole. The contention that as the shares of the respondents were ascertainable and, as such the appeal could not be dismissed as a whole was repelled by the Court on the ground that if the appeal was dismissed partly, it would result in contradictory decrees. The doctrine of contradictory decrees is no more a good law as has been held by this Court in an unreported case entitled Sarwar Nazir Ahmad Khan v. Muhammad Shaukat Khan Civil Appeal No, 99 of 1998 decided on 12-8-1998, wherein quite a number of authorities from Pakistan jurisdiction have been cited and relied upon. However, even where the shares ascertainable, the appeal or suit may be dismissed as a whole on the ground that same has been rendered improperly constituted as a result of absence of necessary parties. In the instant case the failure of service or respondents No,11 and 12 is tantamount to pass a decree in their favour when they were not party to the proceedings, similarly had a joint decree for adverse possession been passed in their favour by the trial Court, any appeal filed by the opposite-party without impleading all the decree-holders would have been incompetent. Therefore, the contention of the learned counsel for the appellant that appeal could not be dismissed in into is not tenable and is hereby repelled.
8. ' In the light of what have been stated above, finding no force in this appeal, it is hereby dismissed.