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Civil Revision No. 241 of 1952, decided on 13th January 1954, against the decree and judgment of Abdul Hakim Khan, Senior Sub‑Judge, Mardan, dated 1st August 1952.
O XXII, Rr. 4 and 11‑ --Failure to implead in appeal all plaintiffs and defendants where decree is without any distinction against all defendants‑Appeal cannot proceed and is incompetent.
Where a decree has been made in favour of several persons against several defendants without making any distinction what soever, the appeal cannot proceed if all the plaintiffs and the defendants are not impleaded in the case as appellants or as res pondents.
When the appeal before the Senior Sub‑Judge did not implead several defendants, the appeal was held incompetent and judgment of trial Court allowed to stand.
Mohtadullah Khan, for Petitioner.
Peer Bakhsh Khan, for Respondents Nos. 6 and 8.
‑Khairullah Khan and eight others instituted a suit against nine persons including Mst. Spina and Zardad Khan defendants Nos. 8 and 9 respectively for the possession of 13 kanals 9 marlas of land out of 52 kanals 3 marlas, bearing Khasra No. 2808/713 to 721.
Out of the defendants the suit was very hotly contested by Saad (Saaz) Gul and Musammar Khan defendants Nos. 1 and 2 in
The learned Sub‑Judge (Allah Nawaz Khan) by his judgment, dated 11th of February 1952, granted a decree for the possession of the, suit‑land in favour of the plaintiffs against all the defendants with costs.
There was an appeal against this decree by Musammar Khan alone in the Court of the Senior Sub‑Judge, Mardan, which was dismissed on merits on 1st August 1952, with costs.
Musammar Khan has come up in revision to this Court.
A preliminary objection has been raised that the appeal in the lower appellate Court as well, as the revision petition in this Court are both incompetent, and the petition should, therefore, be dismissed.
The argument is that during the pendency of the suit defendant No. 9 had died. His four sons Hasham Khan, Misal Khan, Adam Khan and Zaman Khan, his two daughters Mst. Munara and Mst, Marghai and his widow Mst. Laila were brought on the record as his legal representatives. After the decision of the case when the appeal was filed in the Court of the Senior Sub‑Judge, Musammar Khan failed to implead Mst. Spina defendant No. 8, and Misal Khan and Zaman Khan, the two legal representatives of Zardad Khan as respondents in the appeal. Since these three persons were necessary parties to the case, and the decree had been granted against them just as it was granted against the other defendants, the appeal could not proceed in their absence at all.
Where a decree has been made in favour of several persons against several defendants without making any distinction whatsoever, the appeal cannot proceed if all the plaintiffs and the defend ants are not impleaded in the case as appellants or as respondents. It consequently follows that the appeal before the learned Senior Sub‑Judge was incompetent, and should have been dismissed on that ground alone. Since the appeal before the learned lower appellate Court was incompetent, the judgment of the learned trial Court stands intact.
The revision petition, therefore, must fail and is hereby dis missed with costs. Pleader's fee Rs. 20.
Order announced.
A. H. Petition dismissed.
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