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Civil Petition for Special Leave to Appeal No. 279 of 1975, decided on 26th October 1980.

(On appeal from the judgment and order of the Lahore High Court, dated 16‑1‑1975 in L. P. A. 890 of 1968).

--O. XLII, r. 1‑Respondents, impleading of‑Memo. of appeal giving name and address of only one respondent and words "and others"4 thereto typed but scored out and consequently appeal admitted only against respondent named in memo of appeal‑Words "and others" meaning nothing, such words rightly held by lower Court to have been crossed out by petitioner or his Advocate‑Words even if assumed to have been crossed out by some third party mean nothing in context of a plaint or memo of appeal since no service could be effected on persons whose names not disclosed‑Appeal, held, rightly dismissed as non‑maintainable on ground of failure to implead person with whom lis concerned, viz., transferee of property in dispute.

----O. XLII, r. 1‑Respondents failure to implead‑Contention that applications filed in appeal having impleaded real person with whom lis concerned, defect of non‑mention of such person as respondent in memo of appeal stood cured‑Held, not correct‑Such applications on contrary manifested knowledge of petitioner's father as to real dispute having been with such person and his name omitted from memo. of appeal.

‑‑ O. XLII, r. 1‑Respondents, impleading of‑Appellant alone to decide respondent or respondents against whom he wishes to prosecute his appeal‑Fact of name and address of real person having been disclosed in writ petition, held, completely irrelevant.

‑‑ O. XLII, r.1‑Impleading of respondent not named in memo. of appeal‑Solely within discretion of Court‑Failure to do so not shown to be perverse or illegal and person required to be impleaded having acquired valuable right under Limitation Act long ago, conten tion that such person should have been impleaded by Court itself, held, groundless.

Manager, Jammu & Kashmir State Property in Pakistan v. Khuda Yar and another P L D 1975 S C 578 distinguished.

Khalid Iqbal Kazi, Advocate and Sh. Abdul Karim, Advocate‑on‑Record for Petitioners.

Nemo for Respondents.

Date of hearing : 26th October, 1980.

‑The petitioners father had filed a Writ Petition in the High Court at Lahore against the orders of the Settlement authorities. The petition was, contested by the respondents including the Settlement Depart ment and was dismissed by a learned Single Judge on 13‑4‑1966. The petitioners father had thereupon filed a Letter Patent Appeal against the judgment of the learned Single Judge, but as he died during the pendency of the appeal, the petitioners, who were his legal heirs were duly impleaded. Now, the dispute in the case related to a house in Rawalpindi, which had been transferred to Muhammad Aslam Shah, (the second respondent before us, who had not been impleaded as respondent in the Letters Patent Appeal. As the real contest was with this respondent, the learned Judges of the Letters Patent Bench held that the appeal was not maintainable, because the person against whom relief was really sought had not been impleaded. The petitioner stated that Muhammad Aslam Shah, the second respondent before us, had been impleaded and we will presently examine the strange contention advanced .by them before the Letters Patent Bench, as it was repeated before us. However, it would appear that they had also prayed. that the learned Judges should in the interest of justice have impleaded Muhammad Aslam Shah as respondent if it was necessary to do so. The learned Judges repelled the request with the observation that the prayer for impleading the second respondent, Muhammad Aslam Shah, had been made several years after the expiry of the period of limitation, therefore, to allow it would be to deprive Muhammad Aslam Shah of a vested right. Accordingly, by their judgment dated 16‑1‑1975, they dismissed the Letters Patent Appeal of the petitioners.

At the request of learned counsel, we sent for the original file of the High Court and as pointed out by the learned Judges in their judgment, the petitioners' father had filed the Letters Patent Appeal only against the then Settlement Commissioner. However, after the names and address of the Settlement Commissioner, the "words and others" had been typed and then scored out with the result that the appeal was admitted only against the Settlement Commissioner.

Now, because the words "and others" had originally been typed in the Memorandum of Appeal filed by the petitioners' father, learned counsel submitted that the Letters Patent Bench had erred in holding that these, words had been scored out by the petitioners' father and/or his Advocate as held by the Letters Patent Bench. The words "and others" mean nothing, therefore, we see no reason to dissent from the view of the learned Judges that these words bad been crossed out by the petitioner and/or his Advocate and not by any third party, the moreso, as the process fees had been paid only for one respondent, namely, the Settlement Commissioner. However, even if it is assumed for the sake of argument that the words "and others" had been crossed out by some irresponsible third party, this will not help the case of the petitioners, because as we observed, the words "and others" mean nothing in the context of a plaint or a Memorandum of Appeal, because no Court would have the means of effecting service on persons whose names are not disclosed in the plaint or in the Memorandum of Appeal as the case may be. Therefore, we are satisfied that the appeal was filed only against the Settlement Commissioner, and as the petitioners' father had deliberately failed to implead Muhammad Aslam Shah, the appeal was rightly dismissed on the short ground that it was not maintainable in view of the failure to implead the person with whom the petitioners' father had his lis, namely, Muhammad Aslam Shah, the transferee of the property in dispute.

Learned counsel then referred us to applications filed in the appeal in which Muhammad Aslam Shah had been impleaded and because Muhammad Aslam Shah had been impleaded in these applications, learned counsel appeared to think that this was sufficient to cure the initial and fundamental defect in the Memorandum of Appeal filed by the petitioners' father. We are unable to accept this submission, and on the contrary these applications manifest the knowledge of the petitioners' father that his real dispute was with Muhammad Aslam Shah, therefore, his failure to implead Muhammad Aslam Shah in the Memorandum of Appeal cannot be explained away.

Learned counsel then submitted that as the appeal was an Inter Court Appeal, it was not necessary for the petitioners' father to implead Muhammad Aslam Shah because the name and address of Muhammad Aslam Shah was available to the High Court, as the requisite particulars had been supplied by the petitioners' father in his writ petition. Like the learned Judges, we are not impressed by this submission and we can only observe that it is for an appellant to decide the respondent or respondents against whom he wishes to prosecute his appeal, therefore, the fact that the name and address of Muhammad Aslam Shah had been disclosed by the petitioners' father in his writ petition is completely irrelevant and does not in any way improve the case of the petitioners.

Finally, according to learned counsel, the learned Judges should have exercised their suo motu powers and, allowed the request of the petitioner to implead Muhammad Aslam Shah as he was present before them when the appeal was heard and dismissed. The question was solely within the discretion of the learned Judges and no argument has been advanced to show that the learned Judges had exercised their discretion perversely or illegally in refusing the prayer of the petitioners to implead a respondent long years after he had acquired a valuable right under the Limitation Act In order to overcome this difficulty, learned counsel submitted that the case of the petitioner was supported by a judgment in Manager, Jammu & Kashmir, State Property in Pakistan v. Khuda Yar and another (P L D 1975 S C 678). But on examining the judgment we observed that it was distinguishable on the facts. Learned counsel's only reply was that the principle laid down in the judgment had not been followed by the learned Judges in the judgment under appeal. We are unable to accept his submission as the judgment cited is totally distinguishable on the facts and has no relevance to the instant case.

The petition is without merit and is dismissed.

Petition dismissed.

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