MEHTAB BEGUM Versus GHULAM MUHAMMAD

1. Mehtab Beg, Farzand Beg and Akrdnl Beg, plaintiffs, brought a suit against 4Eihulam Muhammad and others defendants, for a declaration to the effect that they along with Akbar Beg and Sarwar Beg (defendants Nos. 26 and 27) being the heirs of Fazal Beg, their occupancy rights in the land (at alif in tile plaint) have not become extinct and for possession of land at be and jeem and house at dal of the plaint The suit was resisted on all grounds and the learned trial Judge while dismissing the plaintiffs' claim with regard to the suit house (dal) and property described in para. 1(alif ) of the plant, decreed 4he suit in respect of property mentioned in para. 1(be) and (jeem) of the plaint. The plaintiffs have remained unsuccessful before the Additional District Judge and have come up to this Court in second appeal. The memorandum of appeal was filed on the 28th of March 1972, and after a fete bearings when service on the defendants was being scrutinized, it was brought to notice that the legal representatives of Chiragh Ali (deceased defendant No. 2), who had been substituted in the first appeal, have not been impleaded in this Court and because of non impleading of the said necessary parties, the appeal stands abated qua the share of Chiragh Ali. The appellants have moved an application under Order XLI, rule 20 read with Order 1, rule 10, and sections 107 and 151 of the Code of Civil Procedure, for impleading the said legal representatives of Chiragh Ali. The reason given is that the factum of omission of the names of the said parties was brought to the notice of counsel for the appellants on the 31st of January :973 and the appellants have moved this petition on 5th of February 1973 and that because the omission has been through inadvertence and absolutely unintentional, the same may be con doned and the aforesaid legal representatives of Chiragh Ali be permitted to be impleaded amongst the array of respondents. This application has been resisted by counsel for the respondents, who has argued that the assertion .made by the appellants that they did not know of the omission prior to the 31st of January 1973 is incorrect because the very application filed by the respondents on the 21st of October 1972 for vacation of stay in the case does mention the unconstitutional nature of the appeal in the absence of the legal representatives of Chiragh Ali, who do not appear as parties before this Court, and, therefore, the appellants were fixed with the knowledge on that date and to say that they bad been informed of the omission on a subsequent date is incorrect. It bas further been contended that the appellants having failed to implead the necessary parties in the case within the period of limitation, they cannot be permitted to be brought on the record after the period of limitation as they have acquired a valuable right in that regard. He further argues, on the basis of Labhu Ram and others v. Ram Partap and others (A I R 1944 Lah. 76), that since the provisions of Order XLI, rule 20. C. P. C. cannot be pressed into service, the Court will not exercise jurisdiction under Order 1, rule 10 read with section 107, Code of Civil Procedure, nor inherent power under section 151, A'. P. C. be exercised. Support for the view propounded is also drawn from Qasim Khan and another v. Mat. Malkai and others (P L D 1963 Pesh. 38) and National Bank of Pakistan v. Pak, Enterprisers and others (P L D 1968 Kar. 47). Learned counsel for the' appellants has argued that no inflexible rule can be laid down in this respect and as the provisions or Order XLI, rule 20, C. P. C. are not exhaustive on the point, the inherent power of the Court may be invoked to give relief to the appellants who are not shown to be negligent or to have committed then omission deliberately. Accordingly to learned counsel, all that happened is that while typing out the memorandum of parties' names from the decree sheet of the lower appellate Court, the names of the Legal Representatives of Chiragh Ali deceased have been omitted by oversight. He has invited my attention to Province of East Pakistan v. Hasan Askary (P L D 1971 S C 82), in which the respondent having died during the pendency of the appeal in the High Court, his Legal Representatives had been brought on the record of the High Court, but when the petition for special leave to appeal was filed, the dead respon dent (and not his Legal Representatives) was impleaded. On objection an application for substitution was moved before the Supreme Court, but when it was pointed out that it was not a case of substitution, as all the Legal Representatives of the deceased had long been brought on the record at the High Court stage, the appellants moved another application for correction of the cause title. While dealing with this application, the learned Judges observed;

2. "It is not disputed that an appeal against a dead party can be amended by bringing his Legal Representatives on the record. Except Sind and Upper Burma Courts, all other High Courts in this sub-continent have taken this view. I am not inclined to take a different view on this point."

3. Learned counsel argues that the distinction attempted to be drawn by the opposite side is without a difference. According to him, impleading of a dead respondent was in no way better than not impleading a party and if the principle laid down by the Supreme Court is applied, there is no bar in bringing on record the respondents omitted through a bona fide mistake. It is further argued that it is a fit case to condone the delay. Reliance has further been placed on Hali Mandal and another v. Khirode Bala Debya (P L D 1961 Dacca 332), Sarshar Ali v. Roberts Cotton Association Ltd. and another (P L D 1963 S C 244), Muhammad Jamil v: The Chairman, Industrial Court, West Pakistan and another (PLD1964SC559) and Messrs S. M. Yusuf & Bros. v. Mirza Muhammad Mehdi Pooya and an other (PLD1965SC15).

4. It is true that in the case of substitution of a particular party in at' appeal, the provisions of Order XXII of the Code of Civil Procedure along with the relevant Articles of the Limitation Act stave to be kept in view, while then case of correction of cause title is on a different footing. In Province of East Pakistan v. Hasan Askary the Supreme Court dealt with an appeal of the latter category. The case of addition of a respondent against whom the appeal had been dismissed and whom the appellant had not made a party in the Court of second appeal is distinct from the first two categories: To appreciate the distinction, rule 20 of Order XLI of the Code of Civil Procedure may be reproduced with advantage:

5. "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 has not been made a party to the appeal, is 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."

6. The phrase "interested in the result of the appeal" has been the subject of debate in many cases. Their Lordships of the Judicial Committee in V. P. R. V. Chockalingam Chetty v. Seethai Ache and others (AIR 1927PC252) interpreted it by saying that "a defendant against whom a suit has been dis missed and as against whom the right of appeal has become barred, cannot be deemed to be interested in the result of the appeal filed by the plaintiff against the otter defendants. It is for the plaintiff-appellant who applied to the Court to exercise its powers under this Rule to show what is the nature of the interest of such defendant". At page 255 of the report, it has been further observed that "owing to the plaintiff's failure to make these defendants-respondents within the time limited for filing an appeal, these appeals, so far as they are concerned, are prima facie barred by limitation, and they are entitled to hold the decrees in their favour, which, as pointed out by their Lordships in a very recent case, is a substantive right of a very valuable kind of which they should not lightly be deprived. When parties are added by the Court after the institution of a suit under Order I, rule 10(2), section 22, Limitation Act, provides that the date when they are added is to be deemed to be the date of the institution of the suit so far as they are concerned for purposes of limitation and the rights which they may have acquit ed under the Limitation Act are, therefore, sufficiently safeguarded. The 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 party a respondent when it appears to the Court that he is interested in the result of the appeal". A After this discussion, the above principle enunciated by their Lordships, was applied and the contention of the appellant in that particular case repelled. No doubt, it is a question for the Court to its discretion to determine in each case whether or not it will make an order for the addition of a party as contemplated by the Rule, such power is not to be exercised on that application of a party. This view has been expressed by a very strong Full Bench of the Lahore High Court in Labhu Ram and others v. Ram Partap and others. It is thus maintained that the case of addition of a respondent omitted at the time of filing the appeal is not the same thing as correction of the cause title and I am inclined to agree with the contention raised by the respondents that the ratio decidendi of Hasan Askary's case is not applicable to the facts before me I am further fortified in my view in this regard by the observation made by their Lordships of the Supreme Court in Muhammad Jamil v. The Chair man, Industrial Court, West Pakistan and another. The appeal before the learned Judges was against an award of the Industrial Court of the West Pakistan and the appellant filed a petition for adding the employer as a respondent. The prayer was allowed subject to just exceptions. On objection being raised that the employer was necessary party, that it would not be possible to modify or set aside the award in his absence, and that the appeal was thus time-barred, it was held that the employer had acquired a valuable right which should not be taken away from him in the circumstances of the case, and so the preliminary objection ought to prevail. It was further observed that under Order XLI, rule 20, C. P. C., the Court had power in a proper case to allow a necessary party to be added as a respondent, but the power to take such action was discretionary and should not be exercised in a case of extreme neglect V. P. R. V. Chockalingam Chetty v. Seethai Ache and others was referred to in Sarshar Ali v. Robert r Cotton Association Ltd and an other, Karkaus, J. while dealing with the objection raised by the plaintiff that the appeal before the High Court was not properly constituted as defendant No. 2 way not made a party within the period of limitation, observed: "It is true that if defendant No. 2 was a necessary party to the appeal his addition as a party after the period of limitation could not have cured the defect in the constitution of the appeal. Defendant No. 2 was, however, not a necessary party to the appeal . . . . . In other words, the rule laid down was that an appeal is oat rendered incompetent if a party, not necessary, is joined in the appeal after the lapse of time. Messer S. M. Yusuf & Bros. v. Mirza Mohammad Mehdi Pnoya and another deals with a case falling under rule 33 of Order XLI, C. P. C. and need not detain us. In Qasim Khan and another v. Mst. Malkai and ethers, the learned Judge has referred to Labhu Ram and others v Ram Partap and others and V. P. R. V. Chockalingam Chetty v. Seerhai Ache and others and declined to add as respondent a party omitted from being impleaded in the first instance, after the expiry of the period of limitation in view of the aforesaid authorities. National Bank of Pakistan v. Pak Enterprisers and others is a similar case. The terse observations appearing at page 50 of the report may be reproduced:

7. "It was, therefore, necessary for the appellant to implead the partners against whom they want to execute the decree as parries to the appeal and arrayed them as respondents. But unfortunately the appellant bank did not implead them as parties or as respondents to the appeal under consideration. 7 hey have only impleaded the respondent-firm as party to the appeal. It is not disputed that against the partners the right of appeal had become barred and, therefore, there should be very strong reasons for this Court to exercise its discretion under Order XLI, rule 20, C. P. C."

8. At page 51. the further observation is ;

9. "The next contention of the learned counsel that this Court should exercise its discretion under Order XLI, rule 20, C. P. C., has also no force. It is a well established rule of law that this provision should be exercised very cautiously because a person in whose favour the lows Court has passed a decree against which an appeal is not filed wit hi period of limitation has a substantive right of a valuable kind which should not be lightly treated. In the case of Labhu Ram and others v. Ram Partap and others a Full Bench of the Lahore High Court has held that when once time for an appeal has run out, it is not possible for an appellant subsequently to implead those defendants who were not originally impleaded as respondents to the appeal. Mr. Mansoorul Arfin has referred to a decision in Girish Chander Lahiri v. Sasi Sekhareswar Roy (I L R 33 Cal. 329) in which it was held that the Limitation Act docs not contract the power of the Court under Order XLI, rule 20 to allow persons who were parties to the proceedings in the Court below, but were not made respondents at the time whet the appeal was presented to be added as respondents. On the other hand, Mr. Hafiz has relied on a decision of the Baghdad-ul-Jadid High Court in the case of Qazi Mehr Din v. Mst. Murad Begum arid others (P L D1951 B J 1) and an Indian decision Raman Lal v. Shand fat (A I R 1961 All. 178). The last mentioned case is more in point In that case the objections of the judgment-debtor that the home was not liable to attachment and sale, he being an agriculturist was dismissed after contest by the decree-holder and the auction-purchaser who were parties to this application. The judgment-debtor appealed impleading only the decree-holder se respondent. The suction-purchaser was sought to be added as a party respondent after the expiry of limitation. It was held by a learned Single Judge of the Allababad High Court that the prayer for adding the auction-purchaser as party respondent could not be allowed as no good case for allowing it had been made out.

10. It seems to us that in the present case the appeal is defective in form inasmuch as the partners who are vitally interested in the case and in whose favour order under Order XXI, rule 50 was passed are not impleaded in the appeal and in their absence it is not possible to pass any order which will adversely affect their interest. To such cases the provision of Order XLI, rule 20 cannot be applied. The fault for not impleading the partners in the appeal is on the appellant-Bank and no reedress can be granted to them for omission to implead the necessary parties to the appeal under the above provisions of law. We, there fore, find that the preliminary objection raised on behalf of the respondent and the counsel for the partners is fatal to the maintain ability of the appeal. We would therefore, hold that, as the appellants have failed to implead the necessary parties to the appeal no effective relief can be granted and the appeal is liable to be dismissed for this reason. Accordingly, the appeal is dismissed . . . . " it will not be out of place to mention that the learned Judge, who delivered the judgment in this case, is also the author of the judgment in Hassan Askary's ease to the Supreme Court.

11. From the discussion above it is manifest that the view of law taken in Hasan Askory's cave for correction of cause title in an appeal is not referable to the provision of rule 20 of Order XLI, C. P. C., which deals with power of the Court to implead a party ac respondent in an appeal in which he had not been originally impleaded, after the expiry of the period of limitation. The two classes of cases are not to be intermingled and a clear distinction having been maintained by the various authorities cited above, I find that the present case is to be governed by Order XLI, rule 20, C. P. C. The petitioners having omitted to implead the persons named in the application within the period of limitation prescribed for the appeal, cannot successfully press into service rule 20 of Order XLI, C. P. C. The contention that the names have been omitted because of an honest mistake in no manner advances the petitioners' case. If rule 20 of Order XLI does not apply because of its very language and the fact that the persons omitted from the array of respondents have acquired a valuable right and are persons not any more interested in the result of the appeal the petitioners cannot fall back on the provisions of Order I. rule 10 read with section 107, C. P. C. The argument that rule 20 of Order XLI is not exhaustive of the cases and, therefore, section 151, C. P. C. can be invoked in the circumstances of the case is equally without merit. I can quote with advantage the view expressed in Labhu Ram and others v. Ram Partap and others:

12. ". . .Section 151, Civil P. C., too cannot be invoked in such cases. As I read that section, it is a residuary section and not an overriding provision of law. In other words, it comes into play only where no specific provision is made to meet an exigency that arises and cannot be relied upon to enable a Court to disregard a clear provision of law and to perform an act which may otherwise be illegal. If once it is held that so long as the Privy Council judgment as reported in 6 Rang. 29 holds the day, an appellate Court has no power to add as a respondent a person who was a party to the suit and against whom the appeal is barred, section 151 would not enable the same Court to make the addition although prohibited otherwise ".

13. Some argument was attempted to be built on the ratio decidendi of the decision reported as Hali Mandal and another v. Khirode Bala Debya, which has taken a contrary view and wherein Labhu Ram and others v. Ram Partap and others was dissented from by a Division Bench of the Dacca High Court. However, a closer study of the judgment shows that it was a case of correc tion of cause title and not of impleading a person interested in the result of the appeal after the expiry of the period of limitation. What happened was that a person who was a party to the suit and had been made a party to the appeal was discovered (at the time of hearing of the appeal) to have died before the appeal was preferred. His Legal Representatives were allowed to be brought on the record. The case clearly fell in the category of appeals when an appeal has been filed against a dead party and that appeal has been held to be maintainable by bringing his Legal Representatives on the record. That is the rational of Hasan Askary's case. Therefore, no support can be possibly taken from this authority.

14. Following with respect the decision in Labhu Rum and others v. Ram Partap and others, and the view of law taken by the Supreme Court in Sarshar Ali v. Roberts Cotton Association Ltd. and another and Muhammad Jamil v. The Chairman, Industrial Court, West Pakistan and another, I hold that the application made beyond time for impleading the Legal Representatives of Chiragh Ali deceased, who bad died during the pendency of the appeal before the learned District Judge and whose legal representatives had already been brought on the record of the Court and had been omitted to be implead ed at the time when the appeal was initially filed, cannot be entertained as the petitioners cannot take advantage of rule 20 of Order XLI, C. P. C. The argument that the Court should exercise its suo motu discretion to implead the said persons who are necessary parties to the appeal has also not impressed me. According to the definition of the term `good faith' (as per Limitation Act) anything not done with due care and attention cannot be described to have been done in good faith. The omission is not established to be an honest mistake. The belated application is not shown to be a case of good faith either. The result is that the application fails and is dismissed, and the appeal is declared to have abated against the Legal Representatives of Chiragh Ali deceased.

15. The appeal will come up for arguments on merits on a date to be fixed by the office.

16. K B A. Application dismissed.