This is a revision petition against the judgment of the learned Additional District Judge, Sahiwal dated 25-11-1987 whereby the appeal, filed by the petitioners, was dismissed. It arises in the circumstances briefly mentioned below.
Muhammad Mumtaz-ul-Islam, Muhammad Imtiaz-ul-Islam and Mst. Latif-un-Nisa, sons and daughter of Muhammad Shafi, had filed a declaratory suit that they were owners of the suit property which had been transferred to them by the Settlement Department on 6-12-1961 and that the claim of the defendants/petitioners to the said property was illegal and without valid basis. The suit was contested by the petitioners/defendants. From the controversy arising out of the pleadings of the parties, necessary issues were framed by the learned trial Court, whereafter, the evidence was produced by the parties. On consideration of the evidence having so come on the record, the suit was decreed by the trial Court vide judgment dated 15-3-1983. The petitioners filed an appeal there against which was dismissed by the learned Additional District Judge, Sahiwal on 25-11-1987. Before the First Appellate Court, it was pointed out that Muhammad Imtiaz-ul-Islam had died pending the suit but the appeal had been filed against the dead person without impleading his, legal representatives. It was on 25-10-1983 when an application for impleading the legal heirs of the said deceased-- respondent was filed. The objection as to the maintainability of the appeal was given effect to by the Appellate Court and the same was dismissed accordingly. This revision petition has been filed to challenge the same.
3. Learned counsel for the respondents/plaintiffs have raised preliminary objections to the competency of the present revision petition that not only that the appeal was not competent before the First Appellate Court in the absence of legal heirs of Muhammad Imtiaz-ul-Islam deceased and the judgment of the Appellate Court is perfectly valid, the petition before this Court also suffers from inherent defect inasmuch as Mst. Latif-un-Nisa, one of the respondents before the First Appellate Court had died pending that appeal whose legal representatives were also brought on record but the present revision petition was filed without impleading her son Muzaffar-ul--- Islam. According to him, the petition is liable to be dismissed for this reason. Another objection raised by the learned counsel for the respondents is that the revision petition was initially filed on 23-2-1988 on which objection by the office was raised on 28-2-1988 but was refiled on 19-10-1988, long after the limitation for filing of the petition had run. It is contended that there is persistent default and negligence on the part of the petitioners in prosecuting the matter and the petition should be dismissed for that reason. In support of his contentions reliance is placed by him on Abdul Qadir and 5 others v. Muhammad Umar and others (PLD 1987 Lahore 232), Muhammad and others v. Muhammad Hussain Shah and another (1994 MLD 1182), Sardar Begum v. Muhammad Anwar Shah and others (1990 ALD 491) (2); Naheed Ahmad v. Asif Riaz and 3 others (PLD 1996 Lah.
702) and Ellahi Bakhsh and 8 others v. Ahmed Bakhsh and 2 others (1999 YLR 777).
4. Learned counsel for tile petitioners contends that the non-impleading of legal heirs of a party has no effect on the appeal/revision and in case where the name of the legal heirs is not mentioned in the decree sheet a par cannot be made to suffer for any such mistake or omission. It is forth contended that the revision petition cannot be dismissed simply for the reason that the same was not refiled after removing of the objection with: limitation. Reference has been made by him to Mst. Sardar Begum Muhammad Anwar Shah and others (1993 SCMR 363), Syed Rahat, Hussain Zaidi v. Settlement Commissioner and others (1987 CLC 2495), Muhammad Hanif and others v. Muhammad and others (PLD 1990 SC 859) and Mss Sabira Bi v. Ahmad Khan and another (2000 SCMR 847).
5. C.M. No. 1-C of 1989 has been filed by the respondents with the prayer to dismiss the petition as incompetent that appeal instead of revision petition had to be filed by the petitioners and that Mst.
Latifun Nisa plaintiff/respondent had died during the pendency of the first appeal, for the impleading of her legal representatives an application was filed by the revision petitioners but this revision petition has been filed without impleading Muzaffarul Islam Sharaf, a legal representative of Mst. Latifuh Nisa C.M. N. 3-C of 1989 has been filed by the petitioners for impleading Muzaffarul Islam, a legal heir of Mst. Latifun Nisa C.M. No. 4-C of 1989 has been filed by the petitioners for conversion and treating the civil revision as a regular second appeal.
6. Admittedly, Muhammad Imtiazul Islam had died pending the suit before the trial Court and amended plaint dated 5-1-1983 had been placed on record impleading the legal representatives of the deceased plaintiff. However, an appeal was filed before the First Appellate Court against Muhammad Imtiazul Islam without impleading his legal representatives. This fact was well within the knowledge of the petitioners who were defendants in the suit and appellants before the First Appellate Court. The appeal being against a dead person the said fact was brought to the notice of the Court on 15-9-1983 when an interim order to this effect was passed by the First Appellate Court. It was on 25-10-1983 that an application for impleading the legal heirs of the deceased- respondent was made. The learned Additional District Judge took the view that the petitioners had made an application for impleading the legal representatives of the deceased after the time for filing the appeal had expired and that the appeal had become time-barred. In Abdul Qadir's case (supra), it was observed that a judgment and decree in favour of a person omitted from being impleaded as party in appeal becomes final the obvious result of which is the dismissal of the appeal. In Mst. Mehr Nishan v. Mst. Gulzar Begum and 2 others (1986 CLC 1706) such an omission of a necessary party from the appeal and application for impleading made after the limitation had run was found to be fatal. Although the petitioners made a ground for non-impleading the legal heirs of Muhammad Imtiazul Islam that the decree sheet did not mention the names of his legal heirs, yet the petitioners could hardly take such a plea in view of the fact that they had effectively been participating in the proceedings before the trial Court and were aware of the death of Muhammad Imtiazul Islam and the filing of the amended plaint. In the application which they relied before the First Appellate Court on 25-10-1983 even no such plea was taken by them nor made a ground for non-impleading of the legal representatives of the deceased Muhammad Imtiazul Islam. The view thus taken by the learned Additional District Judge in dismissing the appeal of the petitioners in the facts and circumstances, cannot be regarded as illegal.
7. Even before this Court while filing the revision petition, Muzaffarul Islam, one of the legal heirs of Mst. Latifun Nisa, who had died pending the appeal before the First Appellate Court was left out and was not impleaded as party. Omission to implead such a necessary party renders the appeal incompetent. Such an omission of a necessary party from the appeal and application for impleading made after the limitation had run was found to be fatal in Mst. Mehr Nishan's case (supra). In Khushi Muhammad v. Settlement Authorities and others (PLJ 1975 Lahore 8), it was held that "the application made for impleading legal representatives of Munshi Khan is misconceived because no question of impleading legal representative of a person who was dead at the time of filing of the writ petition arises. If a fresh writ petition is now brought against the legal representatives of Munshi Khan, it will be greatly belated and would be liable to be dismissed on that ground alone". It was reiterated by the Hon'ble Supreme Court in Mst. Maqbool Begum and others v. Gullan and others (PLD 1982 SC 46) that non-impleadment of a necessary party renders the appeal incompetent. Perusal of the file in the present case shows that the revision petition was initially filed on 23-2-1988 but no steps were taken by the petitioners to implead Muzaffarul Islam till 14-5-1989 when G.M. No.3-C of 1989 was filed. It shows a gross negligence and even lack of diligence in pursuing and prosecuting the list. Such a lapse cannot be condoned as valuable right had accrued to the other side with the passage of time. The petition is liable dismissed for this reason.
8. The other objection by the respondents that the petition should be dismissed is that the revision petition was not properly filed which was returned with objection on 28-2-1988 and was refiled on 19-10-1988. In Mst. Sabiran Bi's case (supra), relied upon by the learned counsel for the petitioners, the revision petition was filed within limitation, but was dismissed as time-barred as the petitioners had taken long time in removing the office objection. It was observed by their lordships that once a suit, appeal or revision had been presented before the authorized Officer of the Court within the prescribed period of limitation, it cannot be treated barred by time for the reason that the office had noted defect in the proceedings which had not been removed by the concerned party. It was further observed that "parties/advocates are also not absolved from their duty move the office objections within the stipulated period prescribed by the concerned authorized Officer subject to the condition that specific notice has been served upon the party or Advocate to do the needful". In the present case, the objection form indicates that no time was specified for refiling of the revision petition after the removal of the objections. Although the petitioners took a long time in refiling of the revision petition, yet in view of the fact that the revision petition-was filed initially within limitation, it cannot be dismissed for that reason in view of Mst. Sabiran Bi's case (supra). This objection of the learned counsel for the respondents does not hold good in the circumstances of the case and is repelled.
As a result of the above, this petition is liable to be dismissed for the reason that the appeal, filed by the petitioners before the First Appellate Court, was incompetent as was fo4nd by the learned Additional District Judge. There is no illegality committed by him, his judgment is maintained. And also for the reason that the petition before this Court was also filed E without impleading Muzaffarul Islam a necessary party who was respondent before the First Appellate Court. C.M.No.1-C of 1989 is thus accepted to this extent and C.M. N0.3-C of 1989 is dismissed. Whether it be revision petition or appeal, for the above reasons the same is liable to be dismissed, therefore, C.M. No.4-C of 1989 has become redundant and is dismissed as infructuous.
This petition is accordingly dismissed. No order as to costs.