FAQUIR MUHAMMAD and 48 others vs PROVINCE OF PUNJAB through Collector_Deputy Commissioner and 4 others

142 plaintiffs had instituted the suit seeking it to be declared that they had become owners of the houses constructed over the State land detailed in the plaint, as per direction of the Government about acquisition of proprietary rights in Katchi Abadis. They had also sought the consequential relief by way of permanent injunction restraining the Government of Punjab and others, from dispossessing the plaintiffs. Alongwith the suit, a petition under Order XXXIX, Rules 1, 2 of the Code of Civil Procedure was filed seeking temporary injunction against their threatened dispossession. The suit was resisted. The learned Civil Judge vide order dated the 16th of October, 1991 granted the temporary injunction and decided to proceed with the suit on merits. The defendants challenged the order in appeal. The learned Additional District Judge, Bahawalpur while accepting the appeal not only dismissed the petition under Order XXXIX, Rule 1, 2 of the Code of Civil Procedure but also rejected the plaint under Order VII, Rule 11 of the Code of Civil Procedure. This judgment passed on the 6th of December, 1992 has been impugned in appeal in this Court by the plaintiffs, now the appellants.

2. The learned counsel for the appellants has assailed the legality of the judgment and decree on the ground that Mr. Riaz-ul-Hassan Alvi, learned Additional District Judge passing the same was not competent to adjudicate upon the matter as the same had not been transferred to him under section 24 of the Code of Civil Procedure or the Civil Courts Ordinance. The learned counsel for the respondents, however, has defended the order.

3. The appeal originally was assigned to Mr. Farrukh Latif, learned Additional District Judge, Bahawalpur and after his transfer the same fell to Mr. Riaz-ul-Hassan Alvi, learned Additional District Judge. After the introduction of the scheme of the High Court, whereby the Additional District & Sessions Judges were reserved for civil and criminal work, the present case was marked to Hafiz Khalil Ahmed, learned Additional District Judge as he was supposed to deal with the civil work for six months. He, however, was transferred on the 24th of September, 1992 and after him the case was dealt by Mr. Riaz-ul-Hassan Alvi, as duty Judge. Copy of the order of the learned District & Sessions Judge, Bahawalpur dated the 14th of July, 1991 shows that he had authorised the Additional District Judges to entertain and dispose of petitions of urgent nature under section 22 of the West Pakistan Civil Courts Ordinance. Mr. Riaz-ul-Hassan Alvi was looking after the work of Hafiz Khalil Ahmed since transferred and whose substitute had not arrived. Admittedly the substitute was not there even on the 6th of December, 1992 when the impugned judgment was passed. Mr. Riaz-ul-Hassan Alvi who was dealing with the case as duty Judge was supposed to deal with the urgent work of the transferee Additional District Judge. The disposal of an application for temporary injunction obviously constitutes urgent matter. The learned Additional District Judge, therefore, was not wrong in deciding the appeal relating to the application for a temporary injunction. He while dealing with the injunction matter had also rightly rejected the plaint under Order VII, rule 11 of the Code of Civil Procedure. The Court of first instance and the appellate Court are duty bound to examine the competency or maintainability of the plaint/petition or revision and appeal relating thereto, as the case may be. The examination of maintainability of the plaint is a matter of urgent nature within the meaning of section 22 of the West Pakistan Civil Courts Ordinance and the duty Judge, Civil Judge or the Additional District Judge can look into the question of maintainability of the plaint/petition, appeal etc. Since substitute of transferred Additional District Judge was not available, therefore, the necessity of disposal of urgent work by the duty Judge (Mr. Riaz-ul-Hassan Alvi) continued and the impugned order passed during the continuance of urgency does not suffer from any illegality or infirmity.

4. Before the learned counsel for the appellants could dwell on merits, the learned counsel for the respondents raised two pronged objections relating to maintainability of the appeal. First is that the appeal was filed without impleading necessary parties and secondly the memorandum of appeal was not accompanied by the decree sheet.

5. Originally as many as 142 plaintiffs had instituted the suit but out of them only 49 have come up in appeal and the rest have not even been included in the array of the respondents. The learned counsel for the respondents referred me to some of the decision wherein non-impleadment of necessary parties was held fatal to the case.

6. In the case Mst. Maqbool Begum etc. v. Gullan and others some of the defendants had appealed against the decree and had not impleaded all the defendants. It was ruled by the Supreme Court (PLD 1982 SC 46) that failure to implead the remaining defendants or any of them had rendered the appeal incompetent. The precedent on the subject is Muhammad Suleman v. Abdul Rashid and 13 others (PLD 1987 Lahore 387) wherein one person (Abdul Qadir) being a co-judgment-debtor under the trial Court's decree was not joined in appeal by his son, in spite of community of their interest. It was held that he could not be left out and the failure to implead him alone was good ground to dismiss the appeal.

The appellants by leaving out their co-plaintiffs who were necessary party in the appeal have exposed the appeal to rejection on this ground alone.

7. There is no cavil with the proposition that rejection of a plaint is a "decree" under section 2(2) of the Code of Civil Procedure. And if any case-law is needed that is available as per Re: Ghulam Muhammad v. United States Agency for International Development (U.S. Aid) Mission, Islamabad 1986 SCMR 907.

8. Again the counsel for the parties have no quarrel over the legal position contained in section 96 read with Order XLI, rule 1 of the Code of Civil Procedure that memorandum of appeal has to be accompanied by the judgment and decree.

9. The learned counsel for the respondents has rightly canvassed at the. Bar that while presenting memorandum of appeal, copy of judgment can be dispensed with by the Court but not the decree.

And the appeal unaccompanied by the decree sheet cannot be entertained and if subsequently the same is allowed by the Court that would be subject to mischief of citation Act. To support the contention, the learned counsel placed reliance n the following precedents:

(1) Imam Gul v. Mst. Begum Jai (1980 CLC 530);

(2) Muhammad Anwar etc. v. Mst. Soma (1981 CLC 1479);

(3) Abdul Majeed and 6 others v. Mst. Haleema and 18 others (1987 CLC 2331) and

(4) Abdul Sattar and 2 others v. Khuda-e-Dad (PLD 1986 Quetta 11).

10. The ratio of the cited authorities is that the appellate Court is empowered to dispense with the copy of the judgment and the requirement that a copy of the decree should be filed alongwith the memorandum of appeal was mandatory and that in absence of copy of such decree, the appeal would be incompetent.

11. Admittedly the appeal is not accompanied by the decree sheet. The explanation of the learned counsel for the appellants is that it was not available at the relevant time and was prepared subsequently. If the case was so, the appellants or their counsel ought to have brought the matter to the notice of the learned Additional District Judge passing the judgment and the decree or the learned District Judge on his administrative side. While preferring the appeal, the learned counsel had not brought the omission to the notice of this Court and had also not mentioned the fact in the memorandum of appeal. In the circumstances, the contention is overruled. The decree sheet is available on the original record and if the appellants are now directed to place its certified copy, that would take the appeal out of limitation.

12. For the reasons aformentioned I uphold both the objections raised by the learned counsel for the respondents and dismiss the appeal as incompetent. The parties are, however, left to bear their own costs.