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Civil Appeal Nos. 221 and 222 of 1976, decided on 26th March, 1986.

(Against the judgment and order of the Lahore High Court dated 25‑3‑1974 in R.S.A. No. 309 of 1967 and R.S.A. No. 238 of 1967).

‑‑‑Art. 185(3)‑‑Civil Procedure Code (V of 1908), O. I, R.9‑‑Leave to appeal granted to consider whether failure to implead personal law heirs was fatal to suit.

‑‑‑O.1, R.9‑‑Sale of land by widow claiming to be sole owner of estate earlier belonging to her late husband on account of prior transfer to her‑‑Appellants filing declaratory suit to avoid sale to extent of their rights as collatoral reversioners‑‑Widow dying during pendency of suit‑ Suit being for declaration and not for possession, after death of widow and her heirs not having been impleaded, dismissed by Trial Court‑ Appellate Court set aside dismissal and remanded case for affording opportunity to plaintiff to amend plaint, correct its form and implead heirs of widow‑‑Plaintiffs impleading two heirs but omitting other two despite clear directions‑‑Trial Court taking view that due to complete abrogation of custom such suit was not competent‑‑Request made by plaintiffs to allow them opportunity to implead other two heirs rejected by High Court‑‑Supreme Court considered it just and proper in circumstances of case to allow an opportunity to plaintiffs to get a proper adjudication on merits of claim of parties‑‑Opportunity allowed to plaintiffs after awarding costs to defendants.

Bashir Ahmad Ansari Senior Advocate Supreme Court arid Ch. Akhtar Ali, Advocate‑on‑Record (in C.A. 221 of 1976) for Appellants.

A.R. Sheikh, Senior Advocate Supreme Court with Imtiaz M Khan, Advocate‑on‑record for Respondent No.l (in C.A. 221 of 1976).

Riaz Ahmad Pirzada, Advocate Supreme Court and Ghulam Dastgir Advocate‑on‑Record for Respondent No.2 (in C . A . 221 of 1976) .

Hamid Khan, Advocate Supreme Court and S. Inayat Hussain, Advocate‑on‑Record for Respondent No.3 (in C . A . 221 of 1976) .

Hamid Khan, Advocate Supreme Court and S. Inayat Hussain, Advocate‑on‑Record for Appellant (in C.A. 222 of 1976).

A.R. Sheikh, Senior Advocate Supreme Court and Imtiaz Muhammad Khan, Advocate‑on‑Record for Respondent No.l (in C.A. 222 of 1976).

Riaz Ahmad Pirzada, Advocate Supreme Court and Ch. Ghulam Dastgir, Advocate‑on‑Record for Respondent No. 2 (in C. A. 222 of 1976).

Bashir Ahmad Ansari, Advocate Supreme Court and Ch. Akhtar Ali; Advocate‑on‑Record for Respondent No.3. (in C.A. No. 222 of 1976).

Dates of hearing: 17th and 18th March 1986.

Leave to appeal was granted separately to the two plaintiffs in the same civil suit to examine whether the Lahore High Court had by its judgment, dated 25‑3‑1974 correctly held that their failure to implead the personal law heirs of Mst. Mehtab Bibi was fatal to the suit.

By an agreement to sell, dated 8‑6‑1955 followed by a registered sale‑deed, dated 12‑12‑1955 Mst. Mehtab Bibi claiming to be the sole owner of the estate earlier belonging to her late husband Muhammad Bakhsh, on account if its prior transfer to her in lieu of her dower and other debts and on account of legal necessity, sold it to Fazal Elahi respondent for Rs. 26, 753. On 5‑2‑1957 the two appellants filed a declaratory suit for avoiding the sale so far as their rights as collateral reversioners were concerned. They impleaded Mst. Mehtab Bibi who was then alive who contested the suit claiming to be the full owner of the property, entitled to transfer it and to have rightfully transferred it. She died during the pendency of the suit. A question arose about the form of the suit and the heirs of Mst. Mehtab Bibi to be impleaded in the suit. The Civil Judge by the judgment, dated 17‑7‑1961 held, inter alia, that the form of the suit was not proper as it was one for declaration instead of one for possession after the death of Mst. Mehtab Bibi and on account of the fact that her heirs Bodi and Ghulam Fatima had not been impleaded in the suit. The trial Court dismissed the suit with costs.

On appeal the learned Additional District Judge by his judgment, dated 23‑2‑1963 set aside the dismissal ordering that an opportunity should be afforded to the plaintiffs to amend the plaint on payment of Rs.50 as costs with a view to correct its form and also to implead the heirs of Mst. Mehtab Bibi who were entitled to inherit her share under proviso to section 3 of the Shariat Application Act, 1948.

On remand the plaintiffs corrected the form of the suit and also impleaded Mst. Sardar Bibi and Mst. Begum Bibi as heirs of Mst. Mehtab Bibi but omitted to implead Bodi and Ghulam Fatima. The trial Court by its judgment, dated 12‑2‑1965 held that "By the complete abrogation of custom such a suit of this nature has no maintainability. It is incompetent". On the other issue, the trial Court held that Ghulam Fatima and Bodi were the only heirs of Mst. Mehtab Bibi under Shariat and the omission to implead them would not result in the dismissal of their suit because it was at the worst a case of misjoinder and non‑joinder of parties.

An appeal was taken by the plaintiffs to the District Judge who affirmed the finding of the trial Court that the suit was incompetent as custom stood abrogated. The finding that Bodi and Ghulam Fatima were necessary parties was reversed.

Two second appeals were filed in the High Court one by each plaintiff. The learned Judge allowed these appeals on the ground that Mst. Mehtab Bibi had an abiding interest at .balance of the price was still payable to her in case the suit was decided against the plaintiffs, that her legal representatives were the necessary parties that there had been a non‑compliance with the order of the District Judge, dated 23‑2‑1963 which attained finality in view of section 105 of the C.P.C. A request made by the plaintiffs to allow them an opportunity to implead Bodi and Ghulam Fatima was rejected with the following observations resulting in the dismissal of appeals:‑

"In my view it is now too late to accede to this request. A direction had been given to the appellants by the learned Additional District Judge about 11 years ago and for reasons best known to them, the appellants did not implead the legal heirs of Mst. Mehtab Bibi. Their insistence on refusing to implead these persons in spite of a direction by the learned appellate Court does not leave it open to this Court to exercise any equitable discretion in their favour after the expiry of such a long period. I, therefore, dismiss these appeals on issue No. 1. As the success is divided, there will be no order as to costs."

After hearing the learned counsel for the parties at length on the legal issues involved, we find that there was a final and binding direction given by the first appellate Court on 23‑2‑1963 calling upon the plaintiffs to implead Bodi and Ghulam Fatima as heirs of Mst. Mehtab Bibi. There was 'no challenge to that order. it was not complied with either. As regards the necessity or otherwise of their presence on record much need not be said at this stage except that Mst. Mehtab Bibi had appeared as a witness of the plaintiffs in rebuttal and was examined by the trial Court on 30‑9‑1959. In these circumstances, it would have been just and proper to allow an opportunity to the plaintiffs to implead them in the suit in order to get a proper adjudication on merits of the claim of the parties. We would, therefore, allow an opportunity to the plaintiffs at a cost of Rs. 500 payable to the contesting defendant to implead them in compliance with the order of the learned Additional District Judge referred to. No order as to costs in these appeals.

M. I. Order accordingly.

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