SARDAR SAID MUHAMMAD KHAN, C.J.--- This appeal has been directed against the order, passed by the High Court on 24-6-1998, whereby the revision petition filed by the appellant, herein, was dismissed.
2. The brief facts giving rise to the present appeal are that a suit was instituted by the appellant in the Court of Sub-Judge, Sehnsa, on 5-6-1996, seeking declaration that the land measuring 49 Kanals, 9-1/2 Marlas, including the share of Shamlat and trees etc., comprising Khewat No. 1, Khatas Nos. 1 to 81, situate in village Talla-Piran, Tehsil Sehnsa, is in the ownership of the appellant. It was averred in the plaint that the sale-deed executed by respondent No. 5 in favour of husband of respondent No. l and father of respondents Nos.2 to 4, registered on 6-11-1983, is illegal, unlawful and was in excess of the share of the vendor and, thus, was liable to be cancelled. The respondent- defendants were summoned and they filed their written statements.
3. Necessary issues, arising out of the pleadings of the parties were framed. After hearing the learned counsel for the parties, on issue No.5 the suit of the plaintiff-appellant was dismissed.
Feeling aggrieved by the order of the trial Court the appellant preferred an appeal before the District Judge, Kotli, which was also dismissed. The appellant preferred a second appeal to the High Court which was also dismissed for non-compliance of the order of the Court, dated 23-4-1998, whereby the appellant was directed to deposit proclamation fee regarding the pro forma- respondents Nos.6, 13, 14 and 27 within a period of one week from the date of order and the case was adjourned to 24-6-1998. On 24-6-1998, since the appellant did not deposit the expenses for advertisement, the appeal was dismissed for non-compliance of the order of the Court. It is the aforesaid order passed by the High Court which is the subject of present appeal.
4. It was contended by Mr. Liaqat A.I Khan, Advocate, the learned counsel for the appellant, that the appeal filed by the appellant could not be dismissed against the actual respondents because they had already been served and the respondents for whom the order was passed for depositing the proclamation fee were only pro - forma-respondents against whom the appellant did not seek any relief. According to the appellant, he specifically mentioned in his plaint that he did not want any relief against them. In this view of the matter, the High Court committed a legal error by dismissing the appeal.
3. Necessary issues, arising out of the pleadings of the parties were framed. After hearing the learned counsel for the parties, on issue No-5 the suit of the plaintiff-appellant was dismissed.
Feeling aggrieved by the order of the trial Court the appellant preferred an appeal before the District Judge, Kotli, which was also dismissed. The appellant preferred a second appeal to the High Court which was also dismissed for non-compliance of the order of the Court, dated 23-4-1998, whereby the appellant was directed to deposit proclamation fee regarding the pro forma- respondents Nos.6, 13, 14 and 27 within a period of one week from the date of order and the case was adjourned to 24-6-1998. On 24-6-1998, since the appellant did not deposit the expenses for advertisement, the appeal was dismissed for non-compliance of the order of the Court. It is the aforesaid order passed by the High Court which is the subject of present appeal.
4. It was contended by Mr. Liaqat A.I Khan, Advocate, the learned counsel for the appellant, that the appeal filed by the appellant could not be dismissed against the actual respondents because they had already been served and the respondents for whom the order was passed for depositing the proclamation fee were only pro forma-respondents against whom the appellant did not seek any relief. According to the appellant, he specifically mentioned in his plaint -that he did not want any relief against them. In this view of the matter, the High Court committed a legal error by dismissing the appeal.
5. Ch. Muhammad Sharif Tariq, Advocate, the learned counsel for the respondents, has controverted the arguments advanced by the learned counsel for the appellant. He has argued that the pro forma-respondents were also necessary parties and no adjudication is possible without their presence. The learned counsel for -the respondents has further argued that the remedy for the appellant was to apply for the re-admission of the appeal under Order 41, rule 19 of the C.P.C. By filing an application in the High Court but instead he has filed a petition for leave to appeal in this Court against the order of dismissal which was not competent. The learned counsel maintained that had the appellant made an application for re-admission of appeal in the High Court under rule 9 of Order 41, C.P.C., the respondents would have put forth their case in the High Court.
6. So far as the non-compliance of the order of the High Court regarding the deposit of proclamation fee regarding respondents Nos.6, 13, 14 and 27 is concerned, they were pro forma- respondents and were not necessary party before the High Court. Therefore, the appeal could not be dismissed against the main respondents as has been held in the case reported as Nawab Bibi v.
Mst. Mehraj Begum (PLD 1975 Lah. 1167). It has been P held in the said case that if the notice could not be served oil the pro-forma---respondents, the appeal could not be dismissed under Order 41, rules 18 and 19, C.P.C., against the actual respondents; it has been further observed in the aforesaid case that pro forma-respondents had no interest in the dismissal or re-admission of the appeal under Order 41, rules 18 and 19 and, thus, the dismissal of the appeal against them would not affect the maintainability or competence of appeal against the real respondents. Thus, the appeal was re--admitted for hearing on this sole ground.
7. The other contention of the learned counsel for the respondent that direct appeal to this Court was not competent because no application was filed in the High Court under rule 19 of Order 41, C.P.C., has no merits because the petition for leave to appeal has been filed under section 42(12) of tire Azad Jammu and Kashmir Interim Constitution Act, 1974 which provides that an appeal to this Court would be competent from a judgment, decree, order or sentence of the High Court in a case to which subsection (11) of section 42 does not apply, if the Supreme Court grants leave to appeal.
The impugned order is not covered under section 4(11) of the Interim Constitution Act and; thus, the petition for leave to appeal filed to this Court under section 42(12) of the Interim Constitution Act was competent. The aforesaid provision gives wide powers to this Court to allow a petition for leave to appeal against an order, irrespective of the fact of the provisions contained in the C.P.C. It may also be pointed out that the C.P.C. Is not applicable to the proceedings before this Court. Therefore, it is not correct to suggest on the part of the counsel for the respondents that appeal was not competent to this Court without filing an application to the, High Court for the re-admission of the appeal.