Maulvi MUHAMMAD'UMAR and others vs Haji PIR BAKHSH and others
This is a petition for leave to appeal against the judgment of the Lahore High Court arising from pre-emption litigation involving agricultural land. The core legal question concerns whether the lower appellate court erred in dismissing an appeal as incompetent ab initio due to the inadvertent omission of a joint vendee's name from the memorandum of appeal and whether permission to amend the memorandum should have been granted. The Supreme Court granted leave to appeal, holding that the lower courts improperly exercised their discretion in refusing to allow the correction of the inadvertent omission of a necessary party who had already signed the counsel's power of attorney, and ordered that the appeal proceed on the record with interim status quo regarding possession.
- Whether an appeal can be dismissed as incompetent ab initio due to the inadvertent omission of a joint appellant's name from the memorandum of appeal?
- Should an appellate court permit the amendment of a memorandum of appeal to include a joint vendee whose name was omitted inadvertently?
- Whether the lower courts improperly exercised their discretion in refusing to implead a necessary party in the appeal?
ORDER
ALI HUSSAIN QAZILBASH, J.---This is a petition for leave to appeal against the judgment of a learned Single Judge of the Lahore High Court, Multan Bench, dated the 25th June, 1989.
2. The facts very briefly stated are that certain lands were sold to Bashir Ahmad and Allah Dewaya, respondents 5 and 6. The sale was pre-empted by Haji Pir Bakhsh and others, respondents 1 to 4.
During the pendency of the suit, the original vendees sold the lands to Maulvi Muhammad Umar, Said Ali Shah and Ghulam Sarwar Shah (now dead). The subsequent vendees were impleaded as parties as defendants Nos.3 to 5 (now the petitioners). The case of respondents Nos.1 to 4 was that they were owners in the estate and they also disputed the sale consideration. As a result of the contest, the learned trial Court framed as many as ten issues, and after assessing the evidence produced by the parties decreed the suit of respondents 1 to 4 on 17-10-1973. On the appeal filed by the petitioners the judgment and decree of the trial Court was set aside on 16-11-1976 and the case remanded for a fresh decision on merits. This time the suit of respondents 1 to 4 was dismissed on 8-5-1978 but on their appeal the District Judge accepted the same on 2-10-1978 which was challenged in the High Court through a regular second appeal by the petitioners and they succeeded in securing a favourable judgment on 26-11-1979 and getting the case remanded with a direction to allow the parties to produce their respective evidence on issues 3, 4 and 5. The trial Court after recording the evidence held the sale consideration at Rs,2,98,000, assessed the improvements effected by the petitioners at Rs,550 and also held that the subsequent sale in favour of the petitioners was not in recognition of their right of pre-emption and consequently decreed the suit in favour of respondents 1 to 4 on 30-10-1980 on payment of a sum of Rs,30,350.
3. The above judgment and decree was challenged by the petitioners before the District Judge but inadvertently the name of Ghulam Sarwar Shah was omitted from the memorandum of appeal as one of the appellants. On 9-6-1981, an application was moved by the petitioners before the learned appellate Court alleging that the name of one of the appellants was omitted to be mentioned in the memorandum of appeal inadvertantly and he, therefore, be allowed to be impleaded as an appellant or as a respondent. An amended memorandum of appeal was also filed. This application was vehemently resisted by the respondents and it was turned down by the learned Court holding that Ghulam Sarwar Shah was a necessary party, his name was omitted by the petitioners, he was not sought to be impleaded as an appellant or as a respondent within the period of limitation and ultimately dismissed the application and the appeal holding the same to be incompetent ab initio on 9-2-1982. The revision petition filed by the petitioners in the High Court was also dismissed on 25-6-1989, which is now sought to be impugned through the present petition.
4. We have heard the learned counsel for the parties for and against the petition. The learned counsel for the petitioners contended that admittedly Ghulam Sarwar Shah was a joint vendee of the suit property and was very much interested in the result of the appeal. His name was inadvertantly omitted from the memorandum of appeal though he had signed the power-of- attorney executed in favour of his counsel, which was filed alongwith the memorandum of appeal, therefore, in all fairness he should have been allowed to be impleaded as a party in the appeal. The learned Courts, he submitted, have thus improperly exercised their discretion in refusing to implead him as a party in the appeal. The learned counsel has heavily relied on the decision of this Court reported as Said Muhammad v. M.Sardar PLD 1989 SC 532.
5. After hearing the learned counsel for the petitioners and going through the judgment cited by him, we grant leave. Security Rs,2,000. The appeal shall be heard on the present record with permission to the parties to file additional documents, if any.
6. The appeal shall be made ready for hearing in the second week of December, 1989. Status quo with regard to possession be maintained till the hearing of the appeal.