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‑‑‑ O. XLI, r. 4‑Joint appeal by some appellants without joining others‑Competency of‑Writ petition filed by 105 petitioners dismissed by High Court‑Interest of all indivisible‑All jointly applied for approval of establishment of Feeder Market, jointly purchased land, jointly offered to transfer two plots for construc tion of office of Market Committee‑Government's approval joint and impugned order also joint against petitioners‑Only 68 petitioners out of 105 filing Intra‑Court Appeal without impleading remaining 37 writ petitioners as respondents or appellants‑Held, 37 writ petitioners (not impleaded) necessary party in Intra‑Court Appeal and at their back no effective judgment can be made, omis sion to implead them fatal to structure of appeal‑Held further, consideration of 'case on merits in absence of 37 writ petitioners, particularly when impugned order joint and indivisible against 105 writ petitioners would certainly be bad exercise of constitutional jurisdiction and discretion‑Constitution of Pakistan (1973), Art, 199 [Ayubur Behman v. Seed Bashir Ali P L D 1962 Dacca 23; Dr. Mazhar Hussain v. Mst. Naseem Begum and o1ners P In. 1 1962 Lah. 31 ; Muhammad Husain v. Zafar Ali Khan P L D 1962 Pesh. 199 and Kumar Duzta v. Sita Nath Dutta 1' L D 1952 Dacca .. r957 held not applicable.

Ayubur Rehman v. Syed Bashir Ali P L D 1962 D, cc:ti 23 ; Dr. Mazhar Hussain v. Mst. Naseem Begum and others P L D 1 96'2. Lah. 31 ; Muhammad Hussain v. Zafar Ali Khan P L D 1962 Pesh. 199 and .Kunzar Dutta v. Sita Nath Dutta P L D 1952 Dacca 357 held not applicable.

Sardar Muhammad Latif Khan Khosa for Appellant.

Riaz Ahmed for Respondents Nos. 2 and 4.

Tussadiq Hussain Jillani, A. A.‑G. for the State.

MUHAMMAD MUNIR KHAN, J.‑.‑This Intra‑Court Appeal No. 361;1980 arises from the judgment of a learned Single Judge, whereby, he, on 16th April. 1980 dismissed the Writ Petition@ No. 2024/79 filed by Muhammad Yusaf and 104 others petitioners seeking declaration to the effect that the order dated 255th January, 11'''9 passed by respondent No. 1 was without lawful authority and of no legal effect.

2. The ''arts leading up to This appeal, in brief are that in the year 1974, the Government of Punjab decided to establish Feeder Market under Rule 63 of Agricultural Produce Markets Rules, 1940 on the following conditions :‑

(1) The owner of the land, transfers land in the name of the Market Committee and an agreement deed be made between the land owner and the Market Committee, if not already done so ;

(2) land owners will‑ get 1/3rd of the amount received after the auction of the commercial plots ;

(3) the Market Committee may construct its office on two plots and shall be responsible for the construction and maintenance of roads, water supply system, street light, sewerage, public paths, public latrines and general cleanliness of the Market ;

(4) The Deputy Commissioner will auction the commercial plots within a period of. six months from the date of issuance of those orders.

The Director General, Agriculture (Field), Punjab the Director of Agriculture (E & M) and all Deputy Commissioners in the Punjab were asked for proposal for the establishment of Feeder Markets.

3. In pursuance of that, a notification No. S. O. (S and M)‑X=5" 72 (Annex : A') published in the Punjab Gazette, dated 20th Novembr . 1975, reads as follows :‑‑

(1) No person or party shall establish a Market within the Notifit.<: Market Area of any Market Committee unless tl:c 5 ; has been a proved by the Government.

(2) A person or party intending to establish a market shall apply for sanction to the Government and the market shall be established with the previous sanction of the Government.

(3) The Government may reject a site and the order passed by the Government in this respect shall be final.

Consequently, the writ petitioners Nos. 1 to 105 applied for the sanction to the establishment of Feeder Market in Chauk Munda. They jointly purchased 8 acres of land in Chak No. 75/T D. A. for Rs. 90,000 through registered. sale‑deed dated 9th February, 1976. The Government of the Punjab respondent No. 1 approved the site purchased by the writ petitioners on the following conditions :‑‑‑

(1) the owner of the land transfers land in the name of the Market Committee and an agreement deed be made between the. land owner and Market Committee, if not already done so ;

(2) the commission agents shall transfer two plots to the Market Com mittee for the establishment of its office and shall be responsible for the construction and maintenance of roads, water supply system, street light, sewerage, public paths, public latrines and general clean liness of the Market.

On 17th September, 1976, Director, Agriculture directed the Administrator, Market Committee to enter into an agreement with the dealers and implement the instructions of' the Government regarding construction of a Feeder Market on the site approved by the Government. On 4th January, 1977 the Secretary, Market Committee vide copy Annexure K/I asked the President of Commission Agents Association Chauk Munda to complete the transfer of the land in the name of the Market Committee and produce the Power of Attorney on behalf of 1105 writ petitioners but the agreement could not be performed on account of some stay order issued by a civil Court. Thereafter, it so happened that the Government through notification dated 25th January, 1979 revised the approval in favour of the petitioners, cancelled the same and approved the establishment of Feeder Market on the land owned by Abdul Aziz. Aggrieved by this notification Muhammad Yusaf and 104 others filed writ petition No. 2024/79 which was dismissed on 16th April, 1980. Hence this Intra‑Court ‑‑Appeal.

4. The above fact make it crystal clear that the interest of the writ petitioners Nos. 1 to 105 in the establishment of Feeder Market is not divisible. They jointly applied for the approval of the establishment of Feeder Market, .They jointly purchased 642 Kanals ‑for Rs. 90,000, the jointly offered to transfer two plots earmarked for shops for the construction of the office of at Market Committee and that the impugned order was also joint as against 105 writ petitioners.

5. Mr. Riaz Anwar learned counsel for the respondents has raised a preliminary objection as to the maintainability and competency of the Intra. Court Appeal. He has pointed out that the writ petition No. 2024/79 was filed by Muhammad Yusaf and 104 others against the four ‑ respondents herein which was dismissed vide impugned order dated 16th April, 1980, whereas the. present Intra‑Court Appeal has been filed by 68 ,persons out of 105 writ petitioners without empleading the remaining 37 writ petitioners as respondents or appellants He further submits that 37 writ petitioner having a joint interest the matter were the necessary party.

6. The learned counsel for 68 appellants herein had frankly admitted that 37 writ petitioners not impleaded in this appeal had joint interest in the establishment of Feeder Market. He however, argues that the appeal of the 68 petitioners out of 105 writ petitioners is not bad under Order XLI, rule 4, C. P. C. He has also relied upon Ayubur Rehman v, Syed Bashir Ali (P L D 1962 Dacca 23). Dr: Mazhar Hussain v. Mst. Naseem Begum and others (P L D 1962 Lah. 38) Muhammad Hussain v. .afar Ali Khan (P L D 1962 Pesh. 199) and Kumar Datta v. Sita Nath Dutta (P L D 1952 Dacca 357).

7. After hearing the learned counsel for the parties and going through the case law cited by them we are included to accept the preliminary objection raised by Mr. Riaz Anwar learned counsel for the respondent for the reason that in the instant case the appellants have not impleaded the remaining 37 writ petitioners as a party. To our mind, they having a joint interest in the establishment of Feeder Market and having purchased 64 Kanals jointly for Rs. 90,000 and the approval of the Government being a joint one, the 37 writ petitioners who have not been impleaded in the Intra‑Court Appeal were the necessary party and at their back no effective judgment cat; be made. The omission to implead them as respondents, if they were not prepared to join the appellants, is a fatal blow to the structure of the present appeal. It‑ is well established that non‑Implead ment of a necessary party renders appeal incompetent. It would certainly be a bad exercise of constitutional jurisdiction and discretion to consider merit of the case in absence of 37 writ petitioners, particularly when certainly the impugned order was joint and indivisible against 105 writ petitioners.

8. As for arguments presented by the learned counsel for the appel lants, there is no denying that under Order XLI, rule 4, C. P. C. where there are more plaintiffs in a suit and the decree appealed from proceeds on any ground common to. all the plaintiffs, any one of the plaintiffs may appeal from the whole decree and thereupon the appellate Court may reverse or vary the decree in favour of all the plaintiffs as the case may be but this does not mean that he or they are exempted from impleading the other co‑petitioners as respondents. We find that the writ petition , was not filed in a representative capacity and so far no permission to file the appeal on behalf of the others has been obtained from the Court. The case law cited by the learned counsel for the appellants is not applicable to the, facts and circumstances of the case.

9. For what has been stated' above, we accept the preliminary objec tion and dismiss the appeal with no order as to costs.

K.M.A. Appeal dismissal. ‑

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