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Civil Revision No.79 of 1986, decided on 3rd March, 1987.
‑‑‑Ss. 107, 151, O.1, R.10 & OXLI, R.20‑‑Joinder of parties in appeal‑ Court having resort to its inherent jurisdiction, held, could order that persons interested in the result of appeal could be made respondents in appeal‑‑Powers of Court with reference to impleading of interested persons as party to appeal stated.
The relevant provisions applicable to joinder of the parties are described under Order I, Rule 10, C.P.C. These provisions, primarily, relate to suits and not appeals. Order XLI, Rule 20, C.P.C., next applies to appeals. It postulates that "where it appears to the Court at the hearing that any person who was a party to the suit in the Court from whose decree the appeal is preferred, but who has not been made a party to the appeal, is interested in the result of the appeal, the Court may adjourn the hearing to a future date to be fixed by the Court and direct that such person be made a respondent." The necessary condition contemplated by Rule 20 is that only such person can be added as respondent who was a party to the suit and no one else therefore, in appellate Court, Rule 20 of Order XLI, C.P.C. can only be attracted when a party to the suit is omitted in the list of appellants or respondents, as the case may be, and once it is satisfied that such person is interested in the result of the appeal, under this Rule, the Court is empowered to implead such person as respondent. But this rule is not exclusive and exhaustive so as to limit or restrict the jurisdiction and authority of the Appellate Court, in impleading a person having interest in the result of an appeal, though not a party to the suit. The Court in such cases, shall resort to its inherent jurisdiction under section 151, C.P.C. and order that such person may be made respondent. The necessary condition in such a situation is that the Court must be satisfied that a party desiring to become respondent in appeal is, obviously, interested in the result of the appeal and not otherwise. The Appellate Court is conferred such authority under section 107, C.P.C. Subsection (2) of this section contemplates that "subject as aforesaid, the appellate Court shall have the same powers and shall perform, as nearly as may be, the same duties as are conferred and imposed by this Code on Courts of original jurisdiction in respect of suits instituted therein". Therefore, on the satisfaction that a person, though not a party in the original suit, is interested in the result of the appeal, the appellate Court, in exercise of its inherent powers under section 151, C.P.C. can direct that such person may be made respondent.
‑‑‑S.42‑‑Civil Procedure Code (V of 1908), Ss. 115 & 151‑‑Limitation Act (IX of 1908), Art.144‑‑Suit for declaration on basis of adverse possession‑‑Land in dispute recorded in record‑of‑rights as Crown land being used by "Assamian Deh"‑‑Persons desirous to be impleaded as a party in appeal being "Assamian Deh", held, would be interested in result of appeal and were rightly impleaded as respondents in appeal by First Appellate Court‑‑Revision petition against order of First Appellate Court whereby persons interested in the result of appeal were impleaded as parties, being devoid of merit, was dismissed by High Court.
Muhammad Arif for Petitioner.
M.H. Gilani, A.‑G. for Respondents Nos. 1 to 3.
Rafique Mahmood Khan for Respondents Nos. 4 and 5.
Date of institution: 30th November, 1986.
The petition is addressed against the order of District Judge, Rawalakot, passed on November 22, 1986, whereby, on acceptance of application of Muhammad Abbas Khan and Muhammad Usman Khan, they were ordered to be impleaded respondents in appeal.
2. Muhammad Nisab Khan filed a suit for declaration claiming adverse possession,. spreading over a period of more then 60 years in the suit land, against the Government and Revenue Department etc. It was averred that the suit land comprising Survey No.492, situate in village Makhyala, Tehsil Bagh, was in exclusive possession of the plaintiff for the last more than 60 years and by virtue of his exclusive use, denying the interest and title of defendants, on the basis of adverse possession, acquired interest and title in it. The defendants failed to contest the suit but the trial Court, in absence of convincing evidence, refused to grant ex parte decree and dismissed the suit. An appeal was preferred by the plaintiff‑appellant before the District Judge, Rawalakot where Muhammad Abbas Khan and Muhammad Usman Khan moved for joining them as respondents. In their application, both of them averred that the suit land was not in exclusive possession and use of Muhammad Nisab Khan, as averred by him, but in joint use of the residents of the village, as such they were necessary party in appeals. The learned District Judge allowed the application by arraying them as respondents. This order is challenged in the present petition. ''
3. The main objection of the petitioner against the impugned order is that unless Muhammad Abbas Khan and Muhammad Usman Khan were made party in the original suit, they could not be permitted to join in appeal. The contention is opposed by Mr. Rafique Mahmood Khan, the learned counsel representing the respondents Nos. 4 and 5.
4. The relevant provisions applicable to joinder of the parties are described under Order I, Rule 10, C.P.C. These provisions, primarily, relate to suits and not appeals. Order XLI, Rule 20, C.P.C., next, apply to appeals. It postulates that "where it appears to the Court at the hearing that any person who was a party to the suit in the Court from whose decree the appeal is preferred, but who has not been made a party to the appeal, is interested in the result of the appeal, the Court may adjourn the hearing to a future date to be fixed by the Court and direct that such person be made a respondent." The necessary condition contemplated by Rule 20 is that only such person can be added as respondent who was a party to the suit and no one else. Therefore, in appellate Court, Rule 20 of Order XLI, C.P.C. can only be attracted when a party to the suit is omitted in the list of appellants or respondents, as the case may be and once it is satisfied that such person is interested in the result of the appeal, under this Rule, the Court is empowered to implead such person as respondent. But this rule is not exclusive and exhaustive so as to limit or restrict the jurisdiction and authority of the appellate Court, in impleading a person having interest in the result of an appeal, though not a party to the suit. The Court in such cases, shall resort to its inherent jurisdiction under section 151, C . P. C . and order that such person may be made respondent. The necessary condition in such a situation is that the Court must be satisfied that a party desiring to become respondent in appeal is, obviously interested in the result of the appeal and not otherwise. The appellate Court is conferred such authority under section 107, C.P.C. Subsection (2) of this section contemplates that "subject as aforesaid, the appellate Court shall have the same powers and shall perform, as nearly as may be, the same duties as are conferred and imposed by this Code on Courts of original jurisdiction in respect of suits instituted therein." Therefore, on the satisfaction that a person, though not a party in the original suit, is interested in the result of the appeal, the appellate Court, in exercise of its inherent powers under section 151, C . P. C . can direct that such person may be made respondent. In identical situation in the case of United Province AIR 1941 F C 16, Mr. Justice Gwyer, C.J. expressed the view of the Court that when a person is found interested in the result of an appeal, though not a party in the original suit, can be made respondent in appeal, in exercise of inherent powers under section 151, C.P.C. coupled with the provisions of section 107 (2) , C . P. C . , to the exclusion of restrictions contained under Order XLI, Rule 20 and Order XLII, C.P.C. In that case, the provisions of statute were challenged in a civil suit. The High Court dismissed the appeal. However, it thought fit to implead U.P. Government as respondent, to enable it to secure an authoritative pronouncement from the Supreme Court. When the U . P. Government preferred an appeal in the Federal Court, an objection was raised to the competence of the appeal and it was emphasised that the U.P. Government when not a party in the suit, could not be made respondent, as such an appeal on its behalf was incompetent. The learned Chief Justice who spoke for the Court, overruled the objection in the light of the aforesaid dictum.
5. In the present case, the record of rights reflects that the subject of dispute is Crown land. It is being used by the "Assamian Deh". The respondents are also "Assamian Deli". as such they are obviously interested in the result of the appeal. The learned District Judge has, therefore, rightly made them respondents. There is no force in the petition. It is, therefore, dismissed. Parties are directed to appear in the lower Court on the date already fixed in the case.
A.A/308/H.A. Revision dismissed.
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