' Judgment of the learned Additional District Judge, Sialkot, dated 10-4-1993, whereby, the appeal, filed by the petitioner, was dismissed against the judgment and decree dated 23-12-1987, passed by a learned Civil Judge, Daska, is the subject-matter of the present revision petition.
2. In brief, the factual background of the case is that Jalal Din, the respondent, had filed a suit against the petitioners claiming declaration that he was owner in possession of house and land underneath measuring 10 Marlas (detailed in the plaint) situated in Village Gojra, Tehsil Daska; and that the sale-deed in favour of petitioner No,1 by petitioner No,2 dated 25-8-1982 was illegal and void qua his rights. It was his case that the suit property had been sold by petitioner No,2 to his father Din Muhammad long before the sale-deed in favour of petitioner No,l. The suit was contested by both the petitioners. Necessary issues were framed by the learned trial Court and even the evidence had been recorded when an application was filed by the respondent/plaintiff to implead Mst. Surayya Bibi on 25-1-1987 claiming her, as his sister. The prayer for impleading her as pro forma defendant was made in said application. She was accordingly impleaded as pro forma defendant. She then filed consenting written statement, dated 12-12-1987 stating that she had gifted her share in favour of the respondent/plaintiff and had no objection to the decree that may be passed in his favour. Soon thereafter, the suit was decreed in favour of the respondent/plaintiff by the learned trial Court vide judgment dated 23-12-1987. The petitioner filed an appeal which appeal was dismissed by a learned Additional District Judge on 10-4-1993 on the ground that Mst.
Surayya Bibi, (pro forma defendant in the suit) had not been impleaded as party to the appeal.
3. Learned counsel for the petitioners contends that Mst. Surayya Bibi had been impleaded as pro forma defendant in the suit who filed a conceding written statement in favour of respondent/plaintiff (her brother) and had not contested the suit nor claimed any relief whatsoever. Absence of her name from the memo. Of appeal filed before the learned appellate Court, was not fatal to the appeal. He relies upon Sardar Muhammad and 2 others v. Haider Zaman and 3 others PLD 1993 Pesh. 81 and District Council Tharparker v.
1. Syed Muhammad Wali,
2. Government of Sindh 1998 CLC 911. It is, thus, contended by him that the learned appellate Court committed illegality in dismissing the appeal for this reason alone.
4. Learned counsel for the respondent has supported the judgment of the learned appellate Court and contends that, all those who were party before the learned trial Court, were to be impleaded in the appeal as party and in the absence of any one of them the appeal was liable to be dismissed.
He relies upon Mst. Mehr Nishan v. Mst. Gulzar Begum and 2 others 1986 CLC 1706, Muhammad Suleman v. Abdul Rashid and 13 others PLD 1987 Lah. 387, Mehrajuddin represented by his heir and others v. The Settlement Authorities and another 1982 SCMR 859 and Sakhi Muhammad and 10 others v. Noor Muhammad and 28 others PLD 1988 SC (AJ&K) 156.
5. The undisputed position is that the contest in the suit was between the petitioners and the respondent/plaintiff (Jalal Din). It was after the trial had completed that the respondent/plaintiff made an application for impleading his sister Mst, Surayya Bibi as party to the suit. In paragraph No,4 it was stated that she be impleaded as "{{URDU TEXT}}" (pro forma defendant), no relief had been claimed against her. When she was impleaded as such, she submitted a written statement wherein she conceded a decree in favour of respondent/plaintiff, stating that she had gifted her share in favour of the respondent/plaintiff, her brother. This written statement was filed by her on 12-12-1987 and the suit was decreed by the learned trial Court on 23-12-1987. The judgment and the decree of the learned trial Court is in- favour of the respondent/plaintiff, alone. If she had any interest in the Abject-matter of the litigation, she could have challenged the said judgment and decree but she did not. It proves her position as merely of a pro forma defendant to the suit and that she was not a necessary party to the litigation. The petitioners, as submitted by their learned counsel, acting under a bona fide impression that she was not a necessary party omitted to implead her as respondent to the appeal. They, however, made a prayer to implead her but the learned appellate Court proceeded to dismiss the appeal as the limitation qua her for filing of appeal had run out.
6. In Mst. Mehr Nishan's case (supra), which has been relied upon by the learned Additional District Judge, and also cited by the learned counsel for the respondent, Manzoor Hussain was held to be a shareholder in the property in the decree passed by the Court and was, thus, found to be a necessary party. He had been left out and was not impleaded in the appeal. Prayer for his impleadment after the period of limitation was declined, by relying upon the principle that where a necessary party had not been joined and limitation against him had expired, it was not permissible to implead him as respondent. Same principle is found in Mst. Maqbool Begum etc, v. Gullan and others PLD 1982 SC 46, Mehrajuddin's case, Muhammad Suleman's case, and Sakhi Muhammad's case.
7. In Ghulam Muhammad and others v. Mehtab Beg and others 1983 SCMR 849, it was held that in order to determine whether the appeal was bad in form and not properly constituted when some of the defendants were not arrayed as respondents in the appeal, it has to be shown that the non- impleaded parties were necessary parties in whose absence, no effective decree could be passed.
It was held that a party who is not a necessary party or against whom no relief is asked for, his joinder does not render the appeal incompetent. In Sarshar Ali v. Roberts Cotton Association Ltd.
And another PLD 1963 SC 244, objection that the appeal before the High Court was not properly constituted as defendant No,2 was not made party within the period of limitation, was dealt with as follows:--- "It is true that if defendant No,2 was a necessary party to the appeal, his addition as a party after the period of limitation could not have cured the defect in the constitution of the appeal. Defendant No,2 was, however, not a necessary party to the appeal. The plaintiff had secured decrees against both defendants. Defendant No,1 when it filed the appeal was not asking for any relief against defendant No,2 and it only wanted to get rid of the decree passed against it in favour of the plaintiff. Prima facie the only necessary party to the appeal was the plaintiff." (underlined by me for emphasis)
8. The principle deducible from the aforesaid judgments is that where a necessary party is left out and is not impleaded in the appeal within the period of .A limitation, the same cannot be allowed to be impleaded afterwards. The rationale behind finds roots in the well-established principle of natural justice, that no one should be condemned unheard when the order is likely to cause prejudice to that person. It is also undisputed that with the expiry of limitation valuable rights accrue in favour of a non-party that is how the non-impleading of a necessary party in appeal renders the same incompetent unless for good reasons the nonimpleaded party is allowed to be impleaded by the Court.
9. This, however, is not the position in the present case as Mst. Surayya Bibi had been impleaded merely as' a formal defendant to the suit who had filed a consenting written statement in favour of her brother, the respondent/plaintiff, and the decree was passed in his favour alone. Mst. Surayya Bibi, thus, had no interest in the litigation. In Munshi Ram v. Abdul Aziz AIR (30) 1943 Lah. 252, question of non-impleadment of formal defendants in appeal had arisen as to whether they were necessary party to the appeal and could be impleaded after the period of limitation. Finding that the non-impleaded defendants as party to the appeal were only formal defendants and were not necessary party to the appeal, the order of the District Judge dismissing the appeal as being incompetent before him, was set aside and the appeal was remanded for decision on merits. In Muhammad Amin v. Khamisa and another PLD 1956 Lahore 242, where a pro forma defendant in the suit had not been impleaded in appeal, the appeal was dismissed by the learned appellate Court which judgment was set aside in second appeal by this Court, taking the view that the left out defendant in the appeal was not necessary party and the appeal could not be dismissed as incompetent in law. Similar view was taken in Nagina Singh v. Jiwan Singh and others AIR 1925 Lah.
87 where a preliminary objection as to the competency of the appeal was overruled for the reason that non impleadment of a formal defendant would not have affected the decision of the case.
10. In view of the above factual and legal position obtaining in the matter, do not find myself pursuaded to subscribe the view taken by the learned Additional District Judge dismissing the appeal for the simple reason that a pro forma defendant had been left out from the memorandum of appeal. Undisputedly, Mst. Surayya Bibi, defendant No,3, according to the averments in the application, filed by the respondent, was a formal defendant. It was her case in the written statement and also of Jalal Din, P.W.4, that she was left with no interest in the suit property. She was not even stated to be a person in possession. The decree sheet describes her address to be resident of Mauza Bamba Kalan, Tehsil and District Kasur. She, therefore, could not be regarded C to be a necessary party to the appeal in any way so as to render the appeal incompetent in her absence.
11. In order to prevent the ends of justice from being defeated, if at all the presence of Mst. Surayya Bibi was considered appropriate (not as necessary party but at the most a proper party) the learned appellate Court had ample powers under Rules 20 and 33 of Order XLI of C.P.C. To permit her impleadment at any stage of the appeal. The appeal, however, could not have been dismissed, simply for the reason, that she had not been made party to the appeal within a period of limitation.
In view of the above, the dismissal of the appeal by the learned Additional District Judge is held to be wrong and illegal. His judgment is, thus, set aside. This revision petition is accepted. As a result whereof, the appeal shall be deemed to be pending in the appellate Court which shall be decided afresh on merits.