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1986 C L C 1706

[Lahore]

 

Before Gul Zarin Kiani, J

 

Mst. MEHR NISH AN–Appellant

 

versus

 

Mst. GULZAR BEGUM and 2 others–Respondents ”

 

Regular Second Appeal No. 315 of 1966, decided on 15th April, 1986.

 

 

Bashir Ahmad Ansari for Appellant.

 

Sultan Mehmood Kalyani for Respondents.

 

Date of hearing: 12th April, 1986.

 

JUDGMENT

 

This second appeal by Mst. Mehr Nishan arise out of the suit for partition and is against judgment and decree, dated 31-1-1966 of learned District Judge Rawalpindi, holding that in the omission to implead Manzoor Hussain, a necessary party, appellant had rightly earned dismissal of her appeal. Facts are: Suit property consisting of house bearing survey No.L/377-402, Dhok Khabba, Rawalpindi City and an open plot of 5 Marlas (Khasra No. 4696) was owned by Muhammad Ibrahim. Owner of the suit property died on 28-5-1959 and was survived by Mehr Nishan, widow, Manzoor Hussain, son Mst. Gulzar Begum and Mst. Sardar Begum, two daughters. There is no dispute about the date of death or the relationship inter se the parties. Plaintiffs, namely Mst. Gulzar Begum and Mst. Sardar Begum, sought the assistance of the Court to have suit property partitioned and brought a civil suit against Mehr Nishan and Manzoor Hussain, in the Court of Administrative Civil Judge, Rawalpindi, on 9-7-1963. In the plaint, it was alleged that suit property was owned by late Muhammad Ibrahim and the plaintiffs as his heirs were entitled to 7/16th share. It was prayed that suit property be partitioned and the plaintiffs be given separate possession of that part of the property which fell to their shares. Mehr Nishan, appeared and contested the suit. Manzoor Hussain, defendant No. 2 despite service, did not enter appearance and was proceeded against ex parte. In the defence submitted by Mehr Nishan, it was pleaded that suit was barred by res judicata and that the suit was out of time. On merits, it was admitted that plaintiffs were daughters of Muhammad Ibrahim but their claim to inherit suit property was denied. Defence plea was that one Hukam Dad son of Sher Jang was owner of Khasra No. 4696, who had through deeds, of sales, dated 21-11-1938 and 27-11-1939, conveyed his 1/4th share measuring 11 Marlas and 1 Sarsai, out of the aforesaid Khasra number to late Muhammad Ibrahim and that the latter by a deed dated 7-10-1941, had donated the suit property in lieu of dower to the defendant. With the donation, it was pleaded, that defendant had become owner of the site. It was further pleaded that Muhammad Ibrahim had constructed a house on 5 Marlas of the aforesaid property which he in the year 1958, had also orally gifted to her. Oral gift was stated to have been later acknowledged on 20-12-1958. On these facts, defendant alleged that Muhammad Ibrahim was not owner of the suit property and that the proprietary rights therein vested in her. In the succeeding para of the written statement, defendant referred to the previous litigation between her and Manzoor Hussain son of Muhammad Ibrahim and relied on the decision of District Judge, dated 12-6-1963, wherein her right to the suit property was conceded by the aforesaid Manzoor Hussain. Consent decision was pleaded to support bar of res judicata. Before issues, learned Court of first instance recorded the statements of counsel for the parties. Plaintiff’s counsel stated that suit house was constructed on an area of 5 Marlas, 4 Sarsai and that this area was purchased by Muhammad Ibrahim from a non-Muslim. As regards ‘lhata’ it was stated that it measured 5 Marlas and bore Khasra No. 4696 and that it was purchased by Muhammad Ibrahim from Khan Muhammad. On behalf of Mehr Nishan, her counsel stated that the house in question was situated in Khasra No. 4671 on an area of 5 Marlas and some Sarsais. It was further stated that Muhammad Ibrahim purchased the property from a non-Muslim, constructed a house and orally gifted it to Mehr Nishan. Open plot was stated to fall in Khasra No. 4696 which late Muhammad Ibrahim was stated to have purchased from Hukam Dad and then transferred to Mehr Nishan in lieu of dower. On 18-5-1964, learned Administrative Civil Judge, Rawalpindi, formulated following issues for trial of the suit.

 

(1) Whether the plaintiffs’ suit is barred under section 11, C.P.C?

 

(2) Whether the plaintiffs’ suit is within limitation?

 

(3) Whether the suit property vested in Muhammad Ibrahim at the time of his death?

 

(4) What are the shares of the plaintiffs in the suit property?

 

(5) Whether the defendant No.l is entitled to special costs, if so, to what extent?

 

(6) Relief.

In support of the aforenoticed issues, plaintiffs produced oral evidence consisting of three witnesses and a statement on oath by Gulzar Begum one of the plaintiffs. Reliance was also placed on copy of the decision of the Civil Court Exh. P.2, copy of Jamabandi Exh. P.3 and plan of the house in dispute Exh. P.3. In defence, apart from statement of Mehr Nishan, Muhammad Aslam D.W.1, was produced to prove ‘Iqrar Nama’ Exh. D.1. Muhammad Aslam was admittedly nephew of Mehr Nishan, defendant. On the examination of the evidence adduced by the parties, learned Administrative Civil Judge, vide judgment and decree, dated 13-10-1965, found for the plaintiffs and decreed the suit in their favour. Preliminary decree for possession through partition of the suit property to the extent of 7/16th share, was issued in favour of the plaintiffs, and, Raja Hafizullah, Advocate, was appointed as Local Commissioner to suggest mode of partition of the suit property.

 

Mehr Nishan, aggrieved of the decision, preferred an appeal before District Court. In the memorandum of appeal, plaintiffs Gulzar Begum and Sardar Begum alone were impleaded as respondents. Manzoor Hussain son of Ibrahim and a defendant in the suit, was altogether omitted and was not impleaded as a respondent in the appeal. Appeal was presented on 27-11-1965. Alongwith the memo of appeal, an application under section 5 of the Limitation Act for condonation of delay was also put in. In course of hearing of the appeal, Mehr Nishan submitted an application purporting to be under section 151,Civi1 P.C. for leave to implead Manzoor Hussain, as respondent. Another application seeking permission for additional evidence was also put in. Both these applications were entertained by the learned District Judge. Plaintiffs respondents opposed the grant of leave both for impleadment of Manzoor Hussain as also for additional evidence. It may be noticed that application for impleading Manzoor Hussain was put in on 13-1-1966, much after the expiry of period of limitation prescribed for the appeal to the District Court. As it appears, respondents seriously objected to the maintainability of the appeal on the ground that Manzoor Hussain, an heir and defendant in the partition suit, who was a necessary party, had not been impleaded in time which rendered the whole appeal imperfectly constituted and made it liable to dismissal. Learned Court of appeal found that Manzoor Hussain, in the result of findings of the trial Court, was a necessary party whose name had been omitted from the appeal without just and proper cause, and after dismissing the application for permission to implead him, dismissed the main appeal also. In reaching the decision against the appellant, learned District Judge, relied on decisions in Labhu Ram and others v. Ram Partap and others and others A I R 1944 Lah. 76, Qazi Mehar Din v. Mst. Murad Begum and others P L D 1951 B.J. 1, which supported the view taken.

 

Mr. Bashir Ahmed Ansari, Advocate for appellant contended that Manzoor Hussain, though a defendant in the suit was not a necessary party and his omission could not entail dismissal of the appeal. It was submitted that Manzoor Hussain, had already conceded claim of the appellant to the suit property and after having done so, was, left with no right or interest therein to plead. It was also argued that in presence of decision dated 12-6-1963, reached in terms of compromise between Mehr Nishan and Manzoor Hussain, Court of appeal was erroneous in attributing the status of a necessary party to Manzoor Hussain and is missing the appeal on that score. Mr. Ansari vehemently criticised the action of the Court of first instance in not allowing the contesting defendant opportunity to bring on record necessary documents to prove her entitlement to the suit property. It was also suggested that the appellant even in the second appeal, was entitled to bring on record documents which were not allowed to be produced before the trial Court. When asked whether such a course was permissible in the absence of proper permission under Order XLI, rule 27, Civil P.C. learned counsel submitted that no such permission was required as the appeal was a continuation of the proceedings in the civil suit. This contention, to speak, with respects, was totally ill-founded and could not be supported by reference to the procedural law.

 

In my opinion this appeal raises two points; (1) whether Manzoor Hussain was a necessary party to the appeal; and (2) whether omission to implead him as party in time rendered the appeal liable to dismissal. As regards point No.1, suffice it to say that in the result of the findings of the Court of first instance, Manzoor Hussain was a necessary party and his name could be omitted only at grave risks to be run by the appellant. Admittedly, he was son of late Muhammad Ibrahim and in case property was found to be joint between heirs he was entitled to a share in the suit property. On issue No. 3 learned Administrative Civil Judge found that “the suit property vested in Muhammad Ibrahim at the time of his death”. Necessary corollary of this finding was that on the death of Muhammad Ibrahim, suit property devolved upon his heirs in accordance with Muslim law of inheritance. Manzoor Hussain, was found entitled to 7/16th share. This finding unless set aside in a properly constituted civil proceedings held the field. It is not in dispute that in a suit for partition all the persons who claimed share in the joint property are necessary parties. Absence of any one of the share-holders makes the task of eventual partition little impossible as no effective partition can take place unless all the concerned parties are before the Court. In the circumstances, Manzoor Hussain could not be said to be a formal and or a proper party only. Presumably, it was for this reason that when objection was noticed, the appellant applied for leave to implead him as a party-respondent. But by the time move Court is, dated 13-10-1965. Application for the certified copies of judgment and decree was made on 27-10-1965. Certified copies were made ready on 8-11-1965 and civil appeal was presented on 27-11-1965. Appeal was late by two days. Condonation was sought by an application under section 5 of the Limitation Act. Impugned judgment and decree both contained the name of Manzoor Hussain, as defendant. It was not the case of appellant that she was in any manner misled by anything contained in the judgment or decree of the trial Court or that she was unaware of the presence of Manzoor Hussain on record. In these circumstances, it was but a case of sheer negligence on her part to have omitted Manzoor Hussain from the array of respondents. By the time application under section 151, Civil P. C. was put in, appeal against Manzoor Hussain had become grossly barred by time. In the omission of the appellant, a valuable right had accrued to the other parties of which they could not legally be deprived of. In my opinion on an overall examination of the facts as disclosed by record, learned District Judge was perfectly right in disallowing the application for impleadment of Manzoor .Hussain at such a belated stage. Having found that Manzoorl Hussain was a necessary party to the appeal, next step for consideration is whether appeal in his absence could proceed. In my judgment, his omission rendered the appeal imperfectly constituted. Effects of non-impleadment and omission of a necessary party from the appeal,’, have been examined in the Full Bench case of Labhu Ram and others v. Ram Partap and others. The view of law taken in the Full Bench case has been followed in Allah Dad and others v. Nawab and others P L D 1960 W.P. Lah. 277; Ghulam Mohyud Din represented by Legal Heirs v. Mian Amiruddin and 12 others P L D 1977 Lah. 381; Punjab Road Transport Board v. Tanvir Ahmad and 4 others 1983 C L C 1160; Shah Muhammad and others v. Muhammad Bakhsh P L D 1972 S C 321; Mst. Murad Begum etc. v. Muhammad Rafiq etc. P L D 1974 S C 322. The ratio decidendi of the aforenoticed case-law is that where a necessary party had not been joined and ‘limitation against him had expired, it was not permissible to implead him as a respondent. Question raised turns on the construction to be placed on rule 20 of Order XLI, Civil P.C. It reads:-

 

Powers to adjourn hearing and direct persons appearing interested to be made respondents. 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 and such person be made a respondent.”

 

Where no appeal is filed or a necessary party is left out and not made a respondent and limitation expires such person cannot be held to be interested in the result of appeal and accordingly cannot be added as a party after the limitation for appeal against him has expired. In some decisions, it has been held that the Court in such circumstances can act in exercise of its inherent powers while in some others it has been found that to cure the defect a fresh appeal can also be filed with an application for condonation of delay under section 5 of the Limitation Act. There are other well-recognized exceptions to the rule also, which, however, in the circumstances of the present case do not apply. Mr. Ansari also pressed in aid rules 4 and 33, Order XLI, Civil P.C. to contend that even inthe absence of Manzoor Hussain, respondent, Mehr Nishan could not be denied the right of adjudication. With respects, I do not agree. Under these rules, the appellate Court cannot make an order prejudicial to the interests of persons who are not parties to the appeal. Necessary parties, therefore, must be before the Court before it can make an order under these Rules. Manzoor~ lf Hussain, in the findings of the trial Court became entitled to a share in the suit property, sought to be partitioned and unless he was before the Court in a properly consituted civil appeal, no decision adverse to his interests, could be made. Order XLI, rules 4 and 23 of Civil P.C. have also been examined by the Courts in post-partition. Indian jurisdiction. In Brij Mohan Lal Murli Dhar v. Raj Kishore and another A I R 1959 Punjab 555, it has been observed that Order XLI; rules 4 and 33 are enabling provisions of procedural law which empower the Court to exercise discretion in favour of persons who have no appealed against the decree provided the decision proceeds on ground; common to the appellants and the non-appealing persons. The rule doe; not say that this power can be exercised only if the non-appealing persons are parties to the appeal. However, a caveat was entered that such power cannot be exercised against the non-appealing person. To quote, learned Judges observed “Principles of natural justice require that no decision against a party should be made without affording him an opportunity to place his case before the deciding authority”. It is however, not the principle of natural justice that no order can be passed in favour of a person who has not been heard. It, therefore follows that non-impleading of a pro forma party to whom relief may be granted under Order XLI, rule 4 does not affect any principle of lay or justice. In fact, it is only just and proper that a person who ha not appealed or who has not been impleaded as a pro forma respondent may be given relief by the Courts on any ground common to all the plaintiffs or the defendant so that full effect may be given to the decision of the Court. Such an exercise or power under Order XLI rule 33, Civil P. C. in favour of an absent party also would make the decision of the Court consistent. It may, however, be pointed out a this stage that it is always discretionary to exercise powers under rules 4 and 33 in favour of an absent party and that discretion is to be exercised judicially”. However, in paragraph 33 of the Report, learnefit Judges observed that order, under Order XLI, rule 4 is to be made in favour of and not against the non-appealing person. Similar views were expressed in Santosh Kumar Mondal and others v. Nandalal Chakarapar and others A I R 1963 Cal. 289. Therefore, though in view of law expressed in the aforenoticed decision, power could be exercised in favour of a non-appealing party yet no order adverse to his interest could be made unless he was before the Court and was allowed a opportunity of hearing. In the circumstances, I find that the view of law taken by the learned Judge of the appeal Court holding that Manzoor Hussain was a necessary party and in his absence appeal could not proceed, was a correct view in the circumstances of the case. I see no adequate reason to take a different view. Accordingly, in agreement with the views of the learned appellate Judge, I find that the appeal was imperfectly constituted and was correctly dismissed. In the result what has gone before, this appeal fails and is dismissed.

 

M . Y . H . — Appeal dismissed

 

 

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