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First Appeal from . Original Order No. 217 of 1983, decided on 21st April, 1986.
---0. XLIII, R.1(u)--Appeal against remand order--Entitlement of person not party to suit--Co-owner, whose interests were adversely affected by decree passed by Trial Court, held, could go in appeal within time against decree of Trial Court event he was stranger to suit filed before Trial Court.
---0. XLI, R. 23 & 0. XLII, R. 1(u)--Remand of case Appellate Court, remanding case without deciding dispute on merits to Trial Court for fresh decision after impleading appellant--Appellate Court, held, rightly remanded case to Trial Court without touching merits of case as appellant was not party in first round of litigation--Remand order of Appellate Court would not justify interference in circumstances.
Syed Laqa Haidir Zaidi for Appellant.
Malik Muhammad Qayum and Muhammad Riaz Lone for Respondent No. 1.
Rashid-ud-Din Qureshifor Respondent No.2. Date of hearing: 21st April, 1986.
This appeal is directed against the remand order passed by the learned District Judge, Toba Tek Singh, on the 28th November, 1983. Syed Subhan Shah, appellant, brought suit against Syed Manzoor Hussain Shah, son of Syed Khadim Hussain Shah, respondent No. 1, for possession of the Darbar of the late Syed Shahabal Shah, situate in the land bearing Khewat No. 36/35, in the area of village Shahabal Shah, tahsil and district Toba Tek Singh. The appellant claimed that he was Sajjada Nashin of the Darbar. The suit on contest by respondent No. 1 was decreed by the learned Civil Judge, Toba Tek Singh, on the 15th March. 1982. The decree was appealed against by respondent No. 1 and his namesake, Syed Manzoor Hussain Shah, son of Syed Hassan Shah, respondent No. 2, to the District Court. The learned District Judge directed the respondents to prefer separate appeals instead of filing joint appeal. The respondents complied. In his memorandum of appeal respondent No. 2 stated that actually he was the Sajjada Nashin and was appointed to control the management of the Khanqah and that the suit between the appellant and respondent No. 1 was collusive. The learned District Judge found that the name of respondent No. 2 was mentioned as one of the co-owners of the land entered in the Khewat in which the shrine was situate. He felt that respondent No. 2's claim necessitated proper adjudication which exercise could be undertaken by the learned trial Court. Therefore, setting aside the judgment and decree of the learned trial Court he remanded the suit with the direction that respondent No. 2 would be impleaded as party to the suit.
2. The objection of the learned counsel for the appellant that respondent No. 2 being a stranger to the suit could not file appeal against the decree granted by the learned trial Court is not sustainable because if respondent No. 2's interests in the shrine were adversely affected by the decree he could go in for appeal against it. The joint appeal filed by the respondent was well within time and they were asked by the learned District Court to split up the appeal into two to be filed by them independently. In the circumstances respondent No, 2's appeal could not be treated as time-barred. The grievance of the learned counsel for the appellant that the learned District Judge remanded the suit without deciding the dispute on merits is not well founded because it was desirable that the learned District Judge should say the least touching the merits of the case, especially with regard to the rights of respondent No. 2 who was not before the Court in the first round of litigation, when he was remanding the suit for fresh decision. In the circumstances, the impugned order does not demand any interference. The appeal is dismissed leaving the parties to bear, their own costs.
3. As the litigation has already taken sufficiently long-time it is directed that the learned Civil Judge, seized with the trial of the suit, will give the suit priority over other cases. dispose it of within three months and report compliance to this Court. The parties have been directed to appear before the learned trial Court on the 13th May, 1986.
H . B . T . Appeal dismissed.
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