1. ' S. USSLAN ALI SHAH, J.-Briefly, the facts of the case giving rise to this Letters Patent Appeal may be narrated as under :- ' Bakhshish and Ghulam Sarwar, the plaintiffs-appellants brought a suit against defendants 1 to 7 praying that a decree may be passed to the effect that the suit land is jointly possessed by the plaintiffs and defendants 5 to 7. The averments made by them in the plaint were that Mir Aslam and Mir Alam, father of defendants 1 to 4, jointly owned the suit property out of which Mir Aslam sold an area of 15 kanals and 13 marlas to Mahboob, the father of the plaintiffs through a registered sale deed dated 14-2-1927. Thereafter, the heirs of Mir Alam also sold their share in the suit land to defendants 5 to 7. When the plaintiffs approached the defendants to accept them as joint owners of the suit property, they declined.
2. ' Defendants 1 to 4 contested the suit, white defendants 5 to 7 were proceeded ex parte. It may be pointed out that during the pendency of the suit. Defendants 1 to 4 sold the land to Ali Akbar and upon the application of Ali Akbar, he was impleaded as defendant in the suit. In consequence of the trial, the learned trial Judge dismissed the suit of the plaintiffs, vide his judgment dated 24-5- 1967. It may be mentioned that while dismissing the suit, the learned trial Judge did not discuss the name of Ali Akbar anywhere in the judgment, nor his name was inserted as defendant in the headings of the certified copies of its judgment and decree-sheet supplied to the plaintiffs- appellants.
3. ' Aggrieved by the judgment of the trial Court, the plaintiffs /appellants went up in appeal before the Additional District Judge, It is noteworthy that at the time of filing the appeal before the Additional District Judge. All Akbar was not impleaded as respondent. However, an application was filed thereafter for the impleadment of Ali Akbar as respondent and since the application was beyond time, on a subsequent date another application was filed for the condonation of delay.
4. Further, Abdul Khaliq defendant was already a dead person and his heirs were also not impleaded as respon' dents in the appeal within the period of limitation. The learned Additional District Judge, vide his judgment dated 4-1-1969 dismissed the appeal not on merit but on the ground that the name of All Akbar was not impleaded as respondent in the appeal before him within the period of limitation. He further observed that since the legal representatives of Abdul Khaliq were brought on record after the period of limitation had expired, the appeal was not properly constituted.
5. ' The plaintiffs/appellants then filed a regular second appeal in this Court which was heard by late Justice Sher Bahadur Khan who dismissed the same, vide his judgment dated 15-7-1969. His Lordship, however, certified the case to be fit for filing Letter Patent Appeal. Hence, this Letter Patent appeal.
6. ' It will be seen that in the headings of certified copies of the judgment and decree sheet of the learned trial Judge supplied to the plaintiffs-appellants, the name of Ali Akbar was not mentioned as one of the defendants. Not only this but his name was also not at all referred to in the judgment.
7. ' A perusal of the file of the first appellate Court will show that the plaintiffs-appellants presented two applications. The first application is dated 13-3-1969, duly supported by an a davit, in which it is prayed that Ali Akbar may be impleaded as respondent in the appeal. The second application filed under section 5 of the Limitation Act is dated 17744-1968 praying that the delay in regard to the impleadment of Ali Akbar as respondent may be condoned. The stand taken by the plaintiffs- appellants was that the name of Ali Akbar was inadvertently left over, as they were supplied incorrect copies of the judgment and decree-sheet of the trial Court in which the name of Ali Akbar had not been mentioned and this, according to them being a mistake committed by the Court or its officer, should not be a ground to make them suffer.
8. ' The learned counsel for the plaintiffs-appellants contended that the learned Additional District Judge has failed to exercise discretion vested in him under Order XLT, rule 20, C. P. C., and be ought to have made All Akbar as respondent in the case. Order XLI, rule 20, C. P. C. Reads as under :- ' Where it appears to the Court at the hearing that any person who was a party to the suit in the Court from whose decree the appeal is preferred but who had not been made a party to the appeal, interested in the result of the appeal, the Court may adjourn the hearing to a future day to be fixed by the Court and direct that such person be made a respondent.
9. ' In view of this provision, the learned course' submittted that the learned Additional District Judge had ample power to condone the delay and in refusing to do so, it is obvious that he had not properly appreciated the grievance made by the plaintiffs-appellants in their application filed before him under section 5 of the Limitation Act for the condonation of delay. He urged that the finding of learned Additional District Judge that the two applications, mentioned above, were not simultaneously filed and thus the plaintiffs-appellants exhibited negligence cannot be sustained, as there is no provision of law that such applications should necessarily be contempora. Neous. He added that even otherwise the Court had under inherent powers jurisdiction to extend time. In support of this contention, the learned counsel relied on PLD 1974 SC 17. The judgment of the Supreme Court will show that the Letters Patent Appeal was filed in the High Court on 8th October 1964, and the office submitted a note pointing out that the appeal is barred by 10 days.
10. Consequently, the appeal was laid before a Division Bench which, while admitting the appeal to hearing, passed the following order :- ' We, however, direct that this appeal shall be set down for hearing during the next circuit.
11. ' The appeal came up for hearing before another Bench of the High Court and the Court suo motu raised the question of limitation and confronted the counsel for appellants with the aforesaid office note. The learned counsel sought an opportunity to explain the cause of delay but it was refused and consequently the appeal was dismissed on the ground of limitation. The Supreme Court, however, allowed the appeal against the judgment of the High Court observing that there were sufficient grounds in the case for condoning the delay.
12. ' On the other hand, the learned counsel for the respondents contended that the power to take action under Order XLI, rule 20, C. P. C. Is discres tionary. He therefore, urged that the learned Additional District Judge, after considering the facts of the case, was justified to disallow the application of the plaintiffs-appellants filed before him under the above said Order for the impleadment of Ali Akbar as respondent in the appeal, and thus this Court ought not to interfere with the impugned order. In this context, the learned counsel relied on AIR 1927 P C 252 and vehemently argued that the appeal against All Akbar was barred by limitation and the addition of his name amongst the array of respondents may not be allowed particularly when be has acquired on indefeasible right of which he should not be lightly deprived. The learned counsel referred to the following observations made in the above a said Privy Council authority t- ' T he addition of a respondent whom the appellant has not made a party to the appeal is expressly dealt with in Order XLI, rule 20 on which the plaintiff relied, both, in the appellate Court and before their Lordships. That rule empowers the Court to make such patty a respondent when it appears to the Court that he is interested in the result of the appeal.
13. ' Giving these words their natural meaning-and they cannot be dismissed it seems possible to say that in this case the defendants against whom these suits have been dismissed, and as against whom the right of appeal has become barred, are interested in the result of the appeal filed by the plaintiff against the other defendants. It was for the plaintiff appellant, who applied to the Court to exercise its powers under this rule, to show what was the nature of their interest and this he has failed to do so.
14. ' It may be said that the above observation of the Privy Council has been Interpreted differently by various Courts. Some have supported the view that the failure to implead some of the respondents who are necessary parties to an appeal would mean that these respondents have been regarded as persons not interested in the result of the appeal within the ambit of Order XLI, rule 20, C. P. C.
15. While other Courts have taken the view that the above observations of the Privy Council would tantamount to having down an Inflexible rule that no person, against whom the right of appeal has become barred, can ever be added as a respondent.
16. ' The question that falls for determination in this case is whether the mistake of omitting the name of a necessary party as respondent in the appeal was due to the extreme negligence of the plaintiff-appellant or it was due to the fact that the Court or its officer failed to mention his name as defendant in the headings of the certified copies of the judgment and decree sheet? A look at the record of the trial Court will make it abundantly clear that All Akbar, though a defendant in the suit before the trial Court, he could not be impleaded as respondent in the memo. Of appeal filed before the Additional District Judge, because his name was not mentioned in the headings of certified copies of the judgment and decree sheet supplied to the plaintiffs-appellants. It seems to us that the plaintiffs-appellants were only expected to give the heading of the appeal from the certified copy of the judgment of the trial Court. It is well-settled that no litigant should suffer for the mistake of the Court or its officer and thus it cannot be said that the plaintiffs-appellants had exhibited negligence when the name of All Akbar was not mentioned in the memo. Of appeal. The learned counsel for the respondents was unable to controvert this position. If the name of All Akbar had been mentioned in the heading of certified copy of the judgment of the trial Court, there was no reason that the appellants should not have added his name as respondent. It would follow that the learned Additional. District Judge does not seem to have exercised his discretion properly in disallowing the name of All Akbar to be impleaded as respondent in the appeal filed before him, as the omission to insert his name as such is obviously attributable to the failure of the trial Court or its officer to mention his name in the headings of the certified copies of the judgment and decree sheet, although be was admittedly a defendant in the suit. In this context, the learned counsel for the plaintiffs-appellants relied on the following observe-- lions in the case of Rodger v. The Comptoir Escompte de Purls (1).
(1) AIR 1922 P C 269 ' One of the first and highest duties of all Courts is to take care that the act of the Court does no injury to any of the suitors and when the expression 'the act of the Court,' is used, it does not moan merely the act of the primary Court, or of any intermediate Court of Appeal, but the act of the Court as a whole from the lowest Court which entertains jurisdiction over the matter upto the highest Court which finally disposes of the case.
17. ' Notice may also be taken of section 151, C. P. C. Which lays down that ,the Court, under its inherent power, may make such orders as may be necessary to secure the ends of justice or to prevent abuse of the process of the Court. In view of this provision also, the plaintiffs-appellants cannot be held to have exhibited any negligence in omitting the name of Ali Akbar as respondent in the appeal filed before the learned Additional District Judge. It can hardly be disputed that the trial Court or its officer failed to mention his name in the headings of the certified copies of the judgment and decree sheet. It appears to us that in the ends of justice, the learned Additional District Judge, should not have refused to allow the plaintiffs-appellants to implead the name of All Akbar as respondent in the appeal filed before him.
18. ' The learned counsel for the respondents further contended that the appeal before the learned Additional District Judge was not competent, as the legal representatives of Abdul Khaliq deceased had not been brought on record within the period of limitation. We do not see any force in this contention. A look at the plaint will show that defendants 5 to 7 (including Abdul Khaliq) were pro forma defendants and according to the statement of the plaintiffs, they were cultivating the suit land on payment of bata. Nothing has been said in rebuttal of this statement which confirms the assertion of the plaintiffs. These defendants also did not appear in the case in spite of service and were placed ex parte. It is obvious that they did not take part in the proceedings, as they were pro forma defendants and were not interested in the result of the case. It may be observed that the death of a pro forma party will not render a suit or for that matter an appeal abate wholly or partially. Abdul Khaliq was admittedly a pro forma party and was not interested in the result of the case, the same would, therefore, be the position in respect of his heirs. For the reasons, it has caused no harm if his heirs were brought on record after the period of limitation. Even otherwise, there was no interest in the property left to the heirs of Abdul Khaliq after his death.
19. ' In view of the foregoing discussion, this appeal is, therefore, allowed and it is directed that the lower appellate Court will proceed with the appeal filed before it and decide it on merits and in accordance with law. For this purpose, the parties will appear before the Court on 234-1977. In view of the fact that a question of law was involved in the case, we would make no order as to costs.