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Civil Appeal No.18 of 1984, decided on 16th February, 1988.

(On appeal from the judgment and decree of the High Court dated 14 11 1983, in Civil Appeal No.38 of 1981).

O. XLI, R.20 Scope and application of O. XLI, R .20, C. P. C.

Order XLI, Rule 20, C.P. C. 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 has not been made a party to the appeal and he is interested in the result of appeal, the Court is empowered to adjourn the hearing and to issue direction, that such person may be made a respondent. These provisions confer a discretion on the Appellate Court to direct for inclusion of the name of the person who was party to the suit and was interested in the result of appeal, but was left out in the appeal, to be made a respondent, so that the point at issue was decided conclusively. Order XLI, Rule 20 was introduced for convenience of the parties and facility of the decision. The discretion conferred under this rule is to be exercised very sparingly only in fit cases where the negligence or omission to implead the necessary party, is bona fide" supported by sufficient reason. Otherwise on lapse of period of limitation, impleading necessary party is not allowed.

O. XLI, R.20 Azad Jammu and Kashmir Supreme Court Rules, 1978, O. XV, Rr.7 & 8 Appellants found negligent in prosecuting appeal Applications for impleading necessary parties in appeal made after delay of more than a year No prayer made for condonation of delay and there was no request to implead left over heirs of other appellants and they were not sought to be made respondents despite the fact they were parties in the suit and appeal Interest of appellants and those who were not impleaded was indivisible and they could not be impleaded as limitation had expired Supreme Court, in presence of such facts found itself not satisfied with the conduct of appellants and declined its discretion in favour of appellants who were to suffer for their negligence.

Qadir Bakhsh v. Saifur Rehman and others 1981 S C M R 166; Mushtaq Ali v. Muhammad Bakhsh alias Mian Muhammad 1982 SCMR 29; Muhammad Ashraf and 8 others v. Azad Government of the State of Jammu and Kashmir and 13 others P L D 1985 SC (AJ&K) 102; Muhammad Jamil"s case P L D 1964 S C 559 and 1975 S C M R 5 4 ref.

Qadir Baksh"s case 1981 S C M R 166 and Mushtaq Ali"s case 1982 S C M R 29 distinguished.

Kh. Muhammad Saeed for Appellants.

Kh. Shahad Ahmed for Respondents.

The appeal is directed against the Judgment and decree of the High Court passed on November 14, 1983, whereby the appeal, preferred against the judgment and decree of the Additional District Judge Poonch upholding the judgment and decree of Additional Sub Judge Rawalakot, wag dismissed.

2. Sattar Muhammad, Muhammada, Mahboob, Hanif Miro, Atta Ullah, Abdul, Sakhi Muhammad and Said Muhammad, ten persons in all, brought suit for declaration "and possession against Ghulam Hussain alias Hussaina, Muhammad Hussain, Faqir and Jamal Din, sons of Isla, in respect of suit land comprising survey Nos.343 min, 145, 146, 446, 670, 687, 965, 135, 443 min and 343 measuring 31 Kanals 18 marlas out of 95 Kanals 13 Marlas; and land comprising survey Nos. 131, 129 min, 31 and 129 min measuring 5 kanals 2 marlas out of 30 kanals 9 marlas total 37 kanals, situate in village Rawalakot Poonch. It was averred that the parties were descendants of common ancestor. Noora was collateral of Isla, Bajra and Faqir. Noora was survived by Kaka, his son, on whose death the property of his share devolved on Mst. Begma, his mother, as limited owner, till second marriage or death. She also died in Dogra Regime, before independence. Mutation of her estate (the suit land) was attested in the name of defendant respondents, on 16 Sawan 1989 Bk. The mutation was sanctioned in favour of defendants, to the exclusion of other collaterals (plaintiffs) by virtue of her will made on 12 Maghar, 1988 Bk. Entries of title of defendants were made in the second of rights. These entries are continuous. Plaintiffs challenged the entries, as incorrect and ineffective on their rights in the land. It was stated by plaintiffs that they acquired knowledge of the aforesaid position in May 1968 A.D. and they instituted the suit on September 25, 1968. It was further averred that survey Nos. 129 min, 131 min, 129 and 131 measuring 30 kanals 9 marlas were in joint possession of the parties, but the share of Mst. Begma measuring 7 kanals 13 marlas was in exclusive possession of defendants. The claim of plaintiffs was repudiated by defendants in their written statements. The defendants pleaded among others grounds of limitation and their adverse possession. The trial Court dismissed the suit on the plea of limitation and adverse possession. The judgment and decree of .the trial Court was upheld by the Additional District Judge and in second appeal also by the High Court.

3. Petition for leave to appeal against the order of the High Court was preferred in this Court on January 11, 1984, and leave was granted on November 17, 1984. The petition was moved by Sakhi Muhammad, Said Muhammad, Atta Ullah Abdul and Mir Muhammad. Some of the plaintiffs viz. Sattar Muhammad, Mehboob and Hanif were not impleaded. They were not arrayed even among co respondents. On the death of Atta Ullah, appellant, his legal representatives were brought on record. On the death of Ghulam Hussain alias Hussaina, Jamal, Din and Haji Muhammad, respondents, their legal heirs were impleaded in time.

4. On April 28, 1985 an application was moved by the appellants for inclusion of the names of Mehboob, Hanif and legal heirs of Sattar Muhammad, deceased, among them. The application was opposed as belated and for showing no sufficient cause to condone the inordinate delay.

5. Kh. Muhammad Saeed, the learned counsel for appellants, contended that omission to implead Mehboob, Hanif and legal heirs of Sattar Muhammad is merely a technical mistake. He argued that the Court was empowered to allow the inclusion of the names of Mehboob, Hanif and legal heirs of Sattar Muhammad, among the appellants at any time. He further contended that the interests of the appellants and those who were not impleaded, are identical; as such even in their absence, the appeal can be disposed of on merits. He cited Qadir Bakhsh v. Saifur Rehman and others 1981 S C M R 166 and Mushtaq Ali v. Muhammad Bakhsh alias Mian Muhammad 1982 S C M R 29. The contention was opposed by Kh. Shahad Ahmed, the learned counsel for the opposite side. It was emphasised that in presence of the dictum of this Court in Muhammad Ashraf and 8 others v. Azad Government of the State of Jammu and Kashmir and" 13 others P L D 1985 S C (A J & K ) 102, the appeal is likely to be dismissed.

6. Here it is relevant to state that Muhammad Khurshid, Shahnaz Akhter, Niaz Begum, Zubaida Begum, Zaida Khatoon, Zaiba Khatoon and Mst. Fatima descendants of Bagga were the respondents before the District Judge and the High Court. Their names are not included among the appellants or respondents. There is no prayer for inclusion of their names even by this time.

7. Order XLI Rule 20, C.P.C. 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 has not been made a party to the appeal and he is interested in the result of appeal, the Court is empowered to adjourn the hearing and to issue direction that such person may be made a respondent. These provisions confer a discretion on, the appellate Court to direct for inclusion of the name of the person who was party to the suit and was interested in the result of appeal, but was left out in the appeal, to be made a respondent, so that the point at issue was decided conclusively. The rule was introduced for convenience of the parties and facility of the decision. The discretion conferred under this rule is to be exercised very sparingly only in fit cases where the negligence or omission to implead the necessary party, is bona fide supported by sufficient reason. Otherwise on lapse of period of limitation, impleading necessary party is not, allowed. Identical proposition was raised before this Court in Muhammad Ashraf and others v. Azad Government of the State of Jammu and Kashmir and others P L D 1985 S C (Azad J&K) 102, In that case some of the claimants were not arrayed as respondents: An application was moved to implead them as respondents, after lapse of considerable time. The learned Chief Justice, who recorded the verdict of the Court, was not satisfied with the conduct of the appellant as such the prayer was disallowed and in absence of necessary and interested parties, the appeal was dismissed. In the present case it is noticed that apart from Mehboob and Hanif, legal heirs of Sattar Muhammad, are not impleaded in the B petition. It was unknown as to whether Sattar Muhammad died before filing the petition or thereafter. The fact remains that Sattar Muhammad and on his death, his legal heirs, are not arrayed as respondents. The application has been moved after a lapse of period of one year three months and seventeen days. The negligence to implead them is explained as inadvertence by the typist. There is no prayer for condonation of delay. Moreover, there is no request to implead Khurshid, Shahnaz Akhtar, Niaz Begum, Zubaida Begum, Zaida Khatoon, Zaiba Khatoon and Mst. Fatima descendants of Bagga. They are not sought to be made respondent despite the fact that they were parties in the suit and appeal. Even if for the arguments sake the application is allowed to include the names of Mehboob, Hanif and descendants of Sattar Muhammad as respondents, the appeal cannot continue unless Khurshid and others, described above, are made respondents. The interest of appellants and those who are not impleaded is indivisible. They cannot be impleaded now, as limitation have already expired. There is no prayer to implead them. Therefore, the impugned order has become final to that extent:

8. Order XV Rules 7 and 8 of the Azad Jammu and Kashmir Supreme Court Rules, 1978, are applicable to the situation under consideration. The provisions of these rules are discretionary and the discretion is to be exercised in just manner. In presence of the facts, listed above, we are not satisfied with the conduct of appellants. They have to suffer for their negligence.

9. We have gone through the decision recorded in Qadir Bakhsh"s case 1981 S C M R 166. In that case the proposition was kept open as it was decided to examine the proposition in a more appropriate case. That decision is of no help to the appellants. In Mushtaq Ali"s case 1982 S C M R 29, omission to implead the Settlement Commissioner was considered a mere technicality. The Settlement Commissioner was a proper party. It was considered proper to decide that case in the light of its facts. The facts of that case are distinguishable. In Muhammad Jamil"s case P L D 1964 S C 559 the appeal was dismissed as the employer, one of the necessary parties, was not impleaded in time. Application to condone the delay and to implead him as respondent, was rejected. The observation made by Mr. Justice Fazle Akbar, the learned Judge, who spoke for the Court is reproduced:

"The award was given on the 27th March, 1962, and it was published in the Gazette on 7th April, 1962. In the petition for special leave to appeal which was filed by the appellant on 9th May, 1962, the employer was not impleaded as a party. On 19th February, 1963, the appellant filed a petition for adding the employer as a respondent after the Court, on 13th February, 1963, had inquired suo motu why the employer had not been added as a party, and on the 4th March, 1963, the Court ordered; "permitted subject to just exception." Thus, the employer was made a party to the appeal long after the period of limitation: No application was made for condonation of delay, but counsel prayed at the hearing that delay should be condoned.

On a preliminary objection being taken that the employer was a necessary party, that it would not be possible to modify or set aside the award in his absence, and that the appeal was thus tune barred: Held that the employer had acquired a valuable right which should not be taken away from him in the circumstances of the case, and so the preliminary objection ought to prevail.

The proposition once again received attention of the Supreme Court in Mehtab Beg"s case 1975 S C M R 54. In appeal in the High Court legal representatives of one of the respondents, were not impleaded. After a lapse of nearly one year, the petitioners moved an application for correction of memorandum of appeal by including the names of the legal representatives of deceased respondent. The prayer was refused as in view of the learned Judge in the High Court, the explanation advanced by the petitioners, was not cogent. The petition for leave to appeal against the Order of the High Court, was rejected in the Supreme Court. It was observed that the application fur condonation of delay and to implead them as respondents was belated: as such rightly rejected by the High Court. The petition was dismissed.

In presence of the circumstances, listed above, we do not feel persuaded to exercise the discretion in favour of the appellants. This is so as the appellants are found negligent in prosecuting the appeal in this Court. Following the dictum recorded in Muhammad Ashraf"s case supported by other decisions of this Court and Supreme Court of Pakistan, we dismiss the appeal with costs.

M.B.A./211/.S.C.A Appeal dismissed.

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