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Civil Revision No.218/D of 1983, heard on 7th March, 1983.

---O. XLI, R.20--Filing of appeal without impleading necessary party- Effect--Appeal filed without impleading persons who were treated necessary party to suit in Trial Court--Appeal, held, was rightly dismissed by Appellate Court below as being improperly constituted as it was obligatory for appellants to implead left out persons as respondents in appeal.

Azad Government of the State of J & K v. Commissioner, Workmen's Compensation, Muzaffarabad 1981 C L C 1143 ref.

---O. XLI, R.20--Impleading persons as respondents in appeal--Suo Motu power of Appellate Court, exercise of--Appellate Court no doubt had power to allow appellant to implead necessary party in appeal as respondents, but where such power was not invoked by appellants, Appellate Court, held, was not duty bound to exercise such power suo Motu in favour of appellant.

Muhammad Jamil v. The Chairman, Industrial Court P L D 1964 S C 559 ref.

---O.I., R.9--Decree passed by Trial Court being unitary in nature it was, held, not necessary to bifurcate same in appeal and decide matter qua parties before Court--Necessary parties in suit having not been impleaded in appeal before Appellate Court in their absence whole appeal would fail.

Ch. Nawab-ud-Din Mahmood for Petitioners.

Muhammad Anwar Warraich for Respondents Nos.1 to 3.

Nemo for the Remaining Respondents.

Date of hearing: 7th March, 1983.

The facts in brief are that respondents Nos.l to 3 brought a suit challenging the validity of the D.C.O's order dated 19-6-1972. The suit was filed against the petitioners predecessor-in-interest, namely Ghulam Muhammad and respondents Nos.4 to 6. The petitioners were impleaded as a party, after the death of Ghulam Muhammad and whereas respondents Nos.4 to 6 were brought on the record, with the permission of the Court and the amended plaint to that effect was filed on 18-4-1981.

2. The suit was decreed by the learned trial Court. The petitions preferred an appeal in which respondents Nos.4 to 6 were lot array. as a party. The learned District Judge maintained that these responder were treated as necessary party in the suit and thus it teas obligate for the petitioner to have impleaded them as respondents in the appeal. Thus, by his judgment dated 11-11-1982, he dismissed the appeal improperly constituted. The petitioners have now come to this Cot: under section 115, C.P.C.

3. I have heard the learned counsel for the parties and examined the available record. It is argued on behalf of the petitioners that respondents Nos.4 to 6 were not necessary party and in. any case under Order XLI, rule 20, C.P.C., it was obligatory for the learned District Judge to have adjourned the case and given the petitioners an opportunity to implead them as a party to the appeal. Ordinance was also placed on Order 1, rule 9, C. P. C. to contend that it was also incumbent upon the learned District Judge to have decided the matter with regard to the parties before him. In support of his these submissions the learned counsel for the petitioners has heavily relied on Azad Government of the State of J & K v. Commissioner, Workmen Compensation, Muzaffarabad 1981 C L C 1143.

4. Admittedly the petitioners and respondents Nos. l to 5 are co-sharers in the same watercourse and the D.C.O's impugned order relates to the Warabandi and user of the water by respondents Nos.l to 3 from a particular Nakka. The interference by the civil Court with the said order, is bound to effect all the co-sharers. In fact, the findings recorded by the learned Trial Court on issue No.l, would amply demonstrate that the petitioners and the co-defendants themselves raised a plea that all such co-sharers were a necessary party to the suit. It cannot be said that the Punjab Province or for that matter the D.C.O. whose order has-been assailed is not the necessary party. Even in the plaint the D.C. O's being a necessary party has categorically been asserted. As a matter of fact, respondents Nos.4 to 6 were treated as necessary parties and impleaded as defendants under the orders of the trial Court. The contention now raised by the petitioners' learned counsel that these respondents were not necessary parties, thus, is totally devoid of merit.

5. As regards applicability of Order XLI, rule 20, C.P.C. it is to be seen that the petitioners never moved the learned District Judge to implead respondents Nos.3 to 6 as party to the appeal. The petitioners' contention however, is that it was incumbent upon the learned District Judge to have suo motu adjourned the case to enable them to bring these respondents on the record. In the precedent from the Azad Kashmir jurisdiction, relied upon by the learned counsel, a necessary party to appeal was sought to be impleaded as a party, after the expiry of the period of limitation and the controversy before the Court was as to whether or not after the expiry of limitation, grant of such an application was within its competence. On exhaustive examination of the case-law on the subject the D . B . took the view that:

"In our opinion, by enacting Order XLI, rule 20, the Legislature intended to empower the Court to allow a party to be added to an appeal already filed, in cases where omission was caused by a bona fide mistake or by no mistake of the party, seeking the addition of the party. The purpose for enacting Order XLI, rule 20 was more or less the same as the purpose of investing the Court with powers to condone the delay under section 5 of Limitation Act."

In this judgment it has nowhere been laid down that the Court in all events is duty bound to exercise its power suo motu in favour of the litigant who fails to bring all the necessary parties on the record. In this connection a reference to Muhammad Jamil v. The Chairman, Industrial Court P L D 1964 S C 559 will provide:

"no doubt under Order XLI, rule 20 of the Code of Civil Procedure the Court has power in a proper case to allow a necessary party to be added as a respondent, but the power to take the action is discretionary and should not be exercised in case of extreme neglect."'

it thus, follows, that the Court under Order XLI, rule 20, C.P.C. the learned District Judge had the power to allow the petitioners to implead respondents Nos.4 to 6 as party to the appeal but this power was never invoked by the petitioners.

6. As regards Order I, rule 9, C.P.C. even if this provision is extended to the appeal, the decree in favour of the respondents. being unitary in character, it was not possible to bifurcate the same and decide the matter qua the parties before the Court. It has already been maintained that respondents Nos.5 to 6 are necessary parties and, therefore, in their absence, the whole appeal must fail. The view taken by the learned District Judge thus, does not suffer from any illegality.

7. There is no merit in this revision which is dismissed with costs.

H . B . T . /J-3 / L Revision dismissed.

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