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Civil Petition for Special Leave to Appeal No. 396 of 1977, decided on 17th April 1978.

(On appeal from the order dated 15‑6‑1977 of the Lahore High Court passed in Civil Revision No. 462 of 1977).

‑ O. I, r. 10 & O. XXXIX, r. 1‑Addition of party‑Petitioner's application for being impleaded as a party before trial Court still pending‑Petitioner if succeeding in his application could contest suit in capacity of defendant before trial Court‑Grant or refusal of stay order neither affecting petitioner nor interfering with his possession due to his having a decree in his favour qua his dispossession‑Appellate Court being in a position, notwithstanding petitioner, to effectually and completely adjudicate upon and settle question in appeal, petitioner's application for being impleaded as a party in appeal before District Judge in proceeding arising out of a decision on an application under O. XXXIX r. 1, held, could not be accepted.‑ [Impleading of party- Appeal (civil)‑Injunction].

M. B. Zaman Rana, Senior Advocate with Mian Bashir Zafar, Advocate instructed by Sh. Abdul Karim, Advocate‑on‑Record for Petitioner.

Rana M. A. Qadri, Advocate‑on‑Record for Respondent No. 1.

M. Z. Khalil, Advocate‑on‑Record for Respondent No. 2.

Nemo for Respondents Nos. 3 and 4.

Date of hearing : 17th August 1978.

‑This is a petition for leave to appeal against the decision of the Lahore High Court dismissing the petitioner's revision petition (C. R. No. 462 of 1977) . and upholding the order of the District Judge, refusing to implead him as a party to the appeal.

In a suit filed by respondent No. 4 (hereinafter called the plaintiff) the petitioner applied under Order 1, rule 10, C. P. C. for being impleaded as a party on the ground of his being in possession of Khasra No. 2276, which formed part of the suit land. Before this application was decided an application for temporary injunction of the plaintiff was rejected and he preferred an appeal before the District Judge. The petitioner moved yet another application for being impleaded as a party in appeal on the same ground as before the trial Court, which was rejected by the District Judge on the ground that he was neither a necessary nor a proper party to the suit and the appeal arisen as it had from the order passed on the application under Order XXXIX, rule 1, C. P. C. could be decided in the absence of the petitioner. The petitioner, thereupon, preferred a petition under section 115, C. P. C. before the High Court where he pressed into service the same contention that he had urged before the District Judge that as he had obtained a decree against respondents 1 and 2 against his dispossession he should have been impleaded as a party in the appeal proceedings. The High Court rejected the revision petition and upheld the view expressed by the District Judge that any order which might be passed in appeal in the matter of stay application of respondent No. 4 would not affect the peti tioner, particularly so far as his dispossession was concerned.

Before us the petitioner has reiterated the contention raised before the Courts below and has also submitted that as he was in possession of a part of the suit land, he was a necessary party in appeal before the District Judge.

On the question of the petitioner's possession of Khasra No. 2276, respondent No. 4 has not denied that he was in possession of some part of it, but whether this circumstance entitled the petitioner to be impleaded as a party in the suit has still to be gone into by the trial Court. The matter in appeal before the District Judge arose out of the decision on the application for temporary injunction, and although it is not clear from the record before us what precise relief was sought by the plaintiff in it, it seems he wanted some kind of stay order against his own dispossession. The grant or refusal of the stay order would not affect the petitioner or interfere with his possession because according to him he already has in his favour a decree qua his dispossession. His application for being impleaded as a party before the trial Court is pending arid as observed by the Courts below is still to be adjudicated upon. If the petitioner succeeds in his said application under Order I, rule 10, C. P. C., he can contest the suit in the capacity of defendant before the trial Court.

We agree with the view taken by the High Court and the District Judge that the application of the petitioner for being impleaded as a party in appeal before the latter in a proceeding arising out of a decision on an application under Order XXXIX, rule 1 could not be accepted as the appellate Court was in a position, notwithstanding the petitioner, to effectually and completely adjudicate upon and settle the question in appeal.

This petition has no force and is dismissed.

Petition dismissed.

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