CH. IJAZ AHMAD, J.- I intend to decide Civil Revision No. 173 of 1999, C.R. No. 174/99, C.R. No. 175/99, C.R. No. 176/99, C.R. No. 177/99, C.R. No. 178/99, C.R. No. 179 of 1999 and C.R. No. 180/99 by one consolidated judgment having similar facts and law.
2. The brief facts out of which the present revision petitions arise are that respondents No. 1 to 11 tiled suits for the recovery of compensation and damages against respondent No. 12 on 18.7.1993 before the Court of Civil Judge Ist Class, Islamabad. The respondent No. 12 filed written statement in November, 1993. The respondent No. 12 mentioned certain documents in para No. 2 of the written statement but the respondent No. 12 did not attach any document with written statement. The respondent No. 1 to 11 filed application for inspection of documents which was allowed by the Trial Court vide order dated 29.9.1995. The respondent Nos. 1 to 11 filed application under Order 1 rule 10 C.P.C. For impleading the petitioner as respondent on 14.10.1996. The learned Trial Court allowed the application vide order dated 1.12.1997. The petitioner received summons from the Trial Court for appearance on 10.12.1998 and filed an application under Order 7 rule 11 CPC for rejection of plaint against the petitioner on 15.12.1998 which was dismissed by the Trial Court vide order dated 3.5.1999, hence the present revision petitions.
3. The learned counsel of the petitioners contended that the respondents No. 1 to 11 in amended plaint stated that cause of action accrued to them firstly on 11.8.1991 and secondly on 20.3.1993.
Respondent filed the application for impleading the present petitioner as respondent on 14.10.1996, therefore, the same is liable to be dismissed as time barred as is envisaged by Article 36 of the Limitation Act. The aforesaid Article prescribed period of limitation to file the suit within two years.
Admittedly the respondents No. 1 to 11 did not file application for impleading the petitioner within two years. He further stated that the petitioner deemed to be as respondent on the date when the application of the respondents No. 1 to 11 was accepted by the Trial Court vide order dated 1.12.1997 as is envisaged by Article 22 of the Limitation Act. He further stated that summons were received by the petitioners on 12.10.1998, therefore, date of filing the application must be 12.10.1998 as is envisaged by Order 1 Rule 10 (5) CPC. In support of his contention he relied upon (PLD 1982 S.C. 345)
HAYAT AND OTHERS VERSUS AMIR. He summed up his arguments that the judgment of the Trial Court is in violation of the law laid down by the Hon'able Supreme Court of Pakistan in Hakim Boota and another Versus. Habib Ahmed and others. (PLD 1985 S.C. 153).
4. The learned counsel for the respondent Nos. 1 to 11 contended that applications of the petitioners have not been finally decided by the Trial Court, therefore, revision petitions are not maintainable before this Court. He relied upon the last para of judgment which is to the following effect:- "Moreover, question of limitation is question of law and facts so it is proper in the case in hand that the case be decided after proceeding the evidence of the parties. The petition stand dismissed".
On the basis of aforesaid findings of the Trial Court the learned counsel for the respondent No. 1 to 11 contended that the applications filed by the petitioners are still pending adjudication, therefore, revision petitions are not maintainable. He further stated that the respondent No. 12 filed written statement and para No. 25-A of the written statement reads as under.
"The respondent No. 12 has assumed no responsibility to the plaintiff under Articles 27, 31 and 33 of the agreement dated 31.10.1998."
5. He further stated the aforesaid agreement is executed between the petitioner and respondent No. 12. The contents, of which reveals the relationships between the petitioner and respondent No. 12 are of principal and agent. He further stated that the Trial Court after considering all the case law cited by both the Courts below has given the findings against the petitioner on the well known principle the question of limitation is a mixed question of law and facts, therefore, revision petitions are not maintainable before this Court. He relied upon NLR 1981 Lahore page 56 N-A Sheryar Versus Conforce Limitation. He further stated that the aforesaid suits are filed by the respondents No. 1 to 11 consisting of 135 families. He further stated that as mentioned above respondent No. 12 filed written statement and mentioned certain documents in para No. 2 but respondent No. 12 did not attach any document alongwith the written statement. The respondent Nos. 1 to 11 filed an application for inspection of documents which was allowed by the learned Trial Court on 29.9.1995, therefore, question of limitation does not arise on the well known principle that nobody should be penalized by the Act of the Court. The judgment cited by the learned counsel for the petitioner is distinguished on facts and law. He further stated that aforesaid agreement between the petitioner and respondent No. 12 reveals, that they assumed their liabilities jointly and severally to compensate the respondents No. 1 to 11. He further stated that both the petitioner and respondent No. 12 obtained insurance coverage, therefore, it is admittedly constructive liability of the petitioners and respondent No. 12, therefore, the petitioner is necessary and proper party. In support of his contention he relied upon PLD 1992 S.C. AJK 6. He summed up his arguments that the issues have already been framed and the case is fixed for evidence of the parties.
6. The learned counsel for the petitioner in rebuttal stated that order of the Trial Court clearly reveals that the application of the petitioner is dismissed, therefore, the contention of the respondent's counsel has no force. He relied upon PLD 1975 Lahore 425. The other contention of the learned counsel for respondents have also no force as the same relate to merits of the suit which cannot be considered at this stage.
7. I have given my anxious consideration to the contentions of the learned counsel of the parties.
The learned counsel for the respondents has raised a preliminary objection that the revision petition is not maintainable as the impugned order is interlocutory order. The preliminary objection raised by the learned counsel of the respondents has no force as the principle laid down by the Hon'able Supreme Court in M/s.. National Security Insurance Company Ltd. 's case 1999 SCMR 718 and the relevant observation is as follows:- P.L.D. 1973 S.C. 507 (Bahir Ahmed's case). 1986 C.L.C. 2350 (Muhammad Nasir's case).
"The expression case decided does not necessarily mean the decision of the entire suit. It may relate to decision of a interlocutory matter requiring a judicial mind."
The aforesaid proposition of law is also supported by the following judgments:- P.L.D. 1973 S.C. 507 (Bashir Ahmed's case). 1986 C.L.C. 2350 (Muhammad Nasir's case.)
It is also established proposition of law that proceedings against added party deemed to commence only on service of summon on him as is envisaged by Order 1 Rule 10 (5) C.P.C. It is also settled proposition of law that proceedings against newly added party deemed to commence against him when he was so made a party as is envisaged by Section 22 of the Limitation At. The.
Hon'able Supreme Court has considered this _proposition of law in Hayat's case P.L.D. 1982 S.C. 167 and observed as under:- "As such we are of the view that the relevant date is the one on which the application was filed and not the one of which it was accepted and the order of the Court impleading a new person a party to the suit must be deemed to have effected from the date on which the application to implied the party was filed."
The Hon'ble Supreme Court has laid down principle that cases must be decided on merits instead of technicalities. I am fortified by the judgment of Hon'ble Supreme Court in Mst. Sardar Begum's case 1993 SCM R 363 and the relevant observation is as follows:- "We may observe that the recent judgment rendered by this Court in the case of Said Muhammad and the Pakistan Water and Power Development Authority (Supra) that party should not be denied relief on account of technicalities under the Procedural law, as the same are framed for the purpose of regulating the legal proceedings, they are intended and designed to foster the cause of justice rather than to defeat it. I am also fortified by the judgment of the Hon'ble Supreme Court in Muhammad Ismaal's case N.L.R. 1980 Civil (S.C.)
44. The Hon'ble Supreme Court has also laid down principle that after addition of Article 2A in the Constitution the cases must be decided on merits instead of technicalities. P.L.D. 1989 S.C. 532. In the present case admitted facts are as follows:- 18.7.1993 Respondent No. 1 to 11 filed a suit for the recovery of compensation and damages against respondent No. 12.
November, 1993. Respondent No. 12 filed written statement without attaching documents with the written statement except mentioned certain documents in para 2 of the written statement.
Respondents No. 1 to 11 filed application for inspection of documents.
29.9.1995 Inspection was allowed to respondents No. 1 to 11.
14.10.96. Respondents No. 1 to 11 filed application to impleaded the petitioner as respondent.
1.12.97. Application was accepted. 10.12.98. Petitioner received summons.
15.12.98. Petitioner filed application under Order 7 rule 11 C.P.C. For rejection of the plaint against the petitioner.
3.5.99. Application was dismissed.
It is pertinent to mention here that it is the duty and obligation of the petitioner to file all the documents with the present revision petition by virtue of Section 115(2) C.P.C. The petitioner did not file all the documents and even the amended plaint was not filed by the petitioner alongwith the revision petition. The petitioner filed C.M. No. 899-C of 1999 to place on record certified copy of the amended plaint Which was accepted vide order dated 26.7.1999. The learned counsel of the respondents also produced written statement today in Court during his arguments on behalf of defendant No. 2 (present petitioner). It is admitted fact that the petitioner was impleaded as party in the aforesaid suit by the Trial Court vide order dated 1.12.1997 which was not challenged by the present petitioner before this Court. It is also admitted fact that the petitioner did not attach agreement executed between the petitioner and respondent No. 12 before this Court. The order dated 1.12.1997 accepting the application of respondents Nos. 1 to 11 also did not reveal the contents of Articles 27, 31 and 33 of the aforesaid agreement while accepting the application of respondents No. 1 to 11. The petitioner relied upon para 27 of the amended plaint that cause of auction accrued to the respondent Nos. 1 to 11 firstly on 11th August, 1991 and finally on 20.3.1993. In the absence of the aforesaid agreement to come to a definite conclusion whether the petitioner is a proper party or necessary party, in case the petitioner is not necessary party and is only proforma defendant then the aforesaid principles laid down by the superior Courts are not attracted. It is also settled proposition of law that no body should be entitled to get benefit of his own negligence. The petitioner himself failed to attach all the document and the orders of the Trial Court with the revision petitions on the basis of which as mentioned above it is difficult to come to just decision that the petitioner is a proforma defendant or necessary or proper party because without the perusal of aforesaid documents it is very difficult to determine the status of the petitioner whether the petitioner is an agent or principal, therefore, it is difficult to determine the liability and obligation of the petitioner qua respondents No. 1 to 11. It appears that respondent No. 12 has obtained licence from Government of Pakistan with certain conditions, subsequently petition executed agreement dated 31.10.1990 with respondent No. 12 as a drilling contractor without recording evidence. It is very difficult to determine their inter se liabilities as well as who is proper, necessary or proforma party. It is also admitted fact that issues have already been framed and the case is fixed for evidence of the parties. In this view of the matter it is in the interest of the parties to avoid multiplicity of litigation it was proper to direct the Trial Court to conclude the Trial within four months even at the cost of day to day proceedings till 26th November, 1999.