ABDUL SHAKOOR PARACHA, J-- This order shall dispose of the following applications;-
(i) C.M. 1/2002.
(ii) C.M. 2/2002.
(Iii) C.M. No. 3/2002.
(iv) C.M. 4/2002.
(v) C.M. 1/2003.
2. Through C.M. 1-C/2002, the applicant seeks to implead the legal heirs of Wali Muhammad who were respondents before the learned Appellate Court but has been omitted by the petitioner and has not been arrayed as respondents in the above captioned civil revision.
2. C.M. 2/2002: This is an application under Section 151, CPC for seeking amendment in the prayer clause of the above captioned civil revision. C.M. 3/2002: This is an application under Section 151, CPC for placing on record the decree sheet of the suit for ejectment filed by the petitioner, against Mst. Aamina Bibi. C.M. 4/2002: This is an application condonation of delay in filing the decree sheet.
C.M. 1-C/2003:- This is an application for impleading Munir Ahmad son of Mutali Khan, as respondent, who purchased the property from Mst. Aamina Bibi during the pendency of the civil revision.
3. Applicant Mirza Allah Ditta (petitioner) and respondent-Mst. Aamina Bibi claimed themselves to be the owners of the disputed house. Mirza Aftah Ditta based his claim on the sale-deed allegedly executed by Wali Muhammad, who was the husband of Mst. Aamina Bibi respondent, whereas Mst.
Aamna Bibi asserted that she acquired the house from her husband Wali Muhammad in lieu of her dower. Both the parties filed suits against each other. Mst. Aamina Bibi-respondent filed suit for declaration and cancellation of the sale-deed allegedly executed by her husband-Wali Muhammad in favour of Allah Ditta, whereas the applicant filed suit for ejectment against Mst.
Aamina Bibi and her husband-Wali Muhammad. Both the suits were consolidated. Vide judgment and decree of the learned Trial Court the suit for declaration filed by the respondents was dismissed. Mst. Aamina Bibi, whereas the suit for ejectment filed by the applicant was decreed on 10.7.1991.
4. Respondent-Mrt. Aamina Bibi filed two appeals before the Learned Additional District Judge, who vide his judgment and decree dated 5.12.1995 accepted the same and set aside the judgment and decree of the Learned Trial Court dated 10.7.1991. The suit filed by the applicant was dismissed whereas, the suit filed by Mst. Aamina Bibi was decreed to the extent of the house in disputed only.
With regard to the shop, suit of the respondent was held to be not competent as she had not prayed for the possession in her plaint.
5. The respondent-Mtf. Aamina Bibi did not challenge the judgment and decree of the Learned Additional District Judge dated 5.12.1995 with regard to dismissal of her suit viz-a-viz shop in question. However, the applicant filed a civil revision but inadvertently legal heirs of Wali Muhammad son of Muhammad Din could not be impleaded, It is contended that Wali Muhammad was just a proforma respondent. He had no interest of the property in question. The legal heirs of Wali Muhammad, who was just a proforma respondent, be allowed to be impleaded as respondent. Reliance has been placed on the case of Sardar Muhammad and 2 others v. Haider Zaman and 3 others (PLJ 1993 Pesh. 35) to contend that non- impleadment of a proforma respondent is not fatal, however in order to do away any hypertechnical objection, the petitioner seeks the impleadment of the legal heirs of Wali Muhammad as proforma respondent. Further it is contended that since two suits between the same parties were brought together which were consolidated and disposed of through a consolidated judgment in which two separate decrees were prepared and the civil revision has been filed without cop of the decree passed in ejectment suit, non-filing of the decree is not fatal. Further contends that the applicant be allowed to place on the record the decree passed in suit for ejectment and delay in filing decree be condoned, In this behalf the learned counsel placed reliance on the following cases:-
(i) PLD 1959 (Dacca 316 (Sardar Menhajuddin Ahmad and another v. Sudhir Kumar Sinha and others).
(ii) 1988 CLC 436 {Manzoor Ahmad v. Additional District Judge, III, Rehimyar Khan and another).
(HI) 1988 SCMR 92 (Baseer Ahmad Siddiqul v. Shama Afroz).
(iv) 1989 SCM R 1780 (Siraj Din and others v. Rajada).
(v) 1981 SCM R 585 (Abdullah v. Faqir Ullah, etc.).
(vi) PL) 2002 SC 681 (Government of Punjab through the Secretary Communication and Works Department, Lahore and others v. Ashers Trading Construction Co.).
6. It is added that the amendment in the prayer clause prayed for, if allowed, shall not change the structure of the civil revision. Finally it has been contended that Munir Ahmad, who has purchased the property from Mst Aamina Bibi during the pendency of the suit is a necessary and proper party, be impleaded as respondents.
7. Conversely, the Learned counsel for the respondent contends that legal heirs of Wali Muhammad were already on record before the Learned Appellate Court and the revision is not competent as the said legal heirs have not been impleaded as respondents in the present civil revision. Further adds that the amendment in the prayer clause sought for, may change the structure of the civil revision. Adds that the decree sheet passed in the civil suit filed by the petitioner for ejectment has not been appended alongwith the civil revision and the civil revision has become time-barred. This Court has no jurisdiction to condone the delay under Section 5 of the Limitation Act. He states that Munir Ahmad be impleaded as necessary party, who has purchased the property-house from Mst.
Aamina Bibi.
8. I have considered the arguments of the learned counsel for the parties and perused the record.
9. Wali Muhammad was a proforma-respondent because both the parties claimed that they have stepped into the shoes of Wali Muhammad, In this view of the matter, omission to implead the legal heirs of Wali Muhammad who were already on the record before the learned Appellate Court and are proforma respondents, is not fatal to the case of the petitioner, It has been ruled in the case of Sardar Muhammad and 2 others v. Haider Zaman and 3 others (PL] 1993 Pesh. 35, that, "In Civil revisions, defect of non- impleadment of proforma defendants would not be fatal if it has not prejudiced rights of parties concerned".
10. It is admitted position between the parties that two suits between the same parties having common issued were disposed of by one consolidated judgment but two separate decrees were prepared, It is established principle of law that if one appeal is field against both the decrees then in eventuality decree against appeal which has not been filed does not operate as res judicata.
See case of Abdullah v. Faqir Ullah, etc. (1981 SCM R 585). In the case reported as Shukar Din and others v. Nazir Ahmad and others (1993 CLC 1367) it has been ruled that. "Even if formality of filing another copy of decree in another suit was not followed and copy of decree was not appended with grounds of appeal, it would make no difference. When composite judgment was passed and challenged in appeal, no procedural illegality and rather technicalities should stand in way of disposal of appeal of merits", In the present case the record of the Court has been summoned. The Court has the power to exercise suo motu powers of revision to see legality of the order of the learned Courts, therefore, to my mind non-filing of another copy of the decree passed in other suit would not make any difference and the petitioner can be allowed to file the decree passed in connected suit and the delay in filing the suit can be condoned. The amendment in the prayer clause of the civil revisions may not change the structure of the civil revision.
Resultantly, all these applications are allowed. The legal, heirs of Wali Muhammad have been brought on the record by the Learned counsel for the petitioner. The amended memo, of revision petition has been filed. The petitioner is allowed to place on the record the decree passed in the connected suit by condoning the delay. Munir Ahmad, who has purchased the property is allowed to be impleaded as respondent. The C.Ms. Are disposed of in the above terms.