Present: ABDUR REHMAN KHAN, J.
Hqji MUSA KHAN
Versus
MST. BAKHT MINA etc.

Civil Revision No. 580 of 1994, decided on 31.3.1996.

(i) Civil Procedure Code, 1908 (Act V of 1908)-
—S. 115 read with O. 41 r. 1-Suit for declaration of being owner in possession-Dismissal of–Challenge to-There is no denying the fact that decree assailed in appeal was annexed with grounds of appeal and it is sufficient compliance of 0.41 r. 1 of C.P.C. irrespective of fact that instead of impugning decree in appeal, it is only judgment and order which have been impeached–Held : Omission of not challenging decree in memo of appeal is not fatal and appeal is not liable to dismissal on this count-Case remanded. [P. 147] A & B

1986 C.L.C. 1083, PLD 1989 Lahore 523 ref.

(ii) Civil Procedure Code, 1908 (Act V of 1908)–
—S. 115-Suit for declaration-Dismissal of~Challenge to–Non- impleadment of a party-It is settled law that if share of a party is distinct and separably eterminable, then non-impleadment of that party would not abate appeal in toto, but abatement would be only in respect of share f party not included in ppeal. [P. 147] C

Muhammad Waris Khan, Advocate for Petitioner. Abdul Haleem Khan, Advocate for Respondents.

Date of hearing: 13-3-1996.

JUDGMENT

The petitioner-plaintiff brought a suit for declaration of being owner in possession of the disputed property and restraining the defendants from either interfering in the suit property or from basing their claim over the property in question on the basis of the forged documents. It was also prayed that permanent injunction preventing the defendants may also be issued so that they may not interfere in the proprietary right of the petitioner in future. The defendants resisted the claim of the plaintiff and ultimately the learned trial Judge by his judgment dated 14-12-1992 dismissed the suit. The petitioner challenged that judgment before the District Judge but by the impugned decision, the appeal was dismissed as incompetent on two grounds : (1) that the decree has not been challenged in the grounds of appeal; (2) legal heirs of Abdul Samad, Defendant No. 1, havenot been impleaded. The petitioner has, therefore, called in question the legality of the judgment of the appellate Court in this revision petition.
2. The learned counsel for the petitioner while pleading his case referred to the first line of the grounds of appeal before the appellate Court which reveals that the attested copy of the decree had been attached with the memo of appeal and according to him, this fulfils the requirements of Order 41 Rule 1 C.P.C. even if there is no challenge to the decree in the grounds of appeal. He relied for his submission on 1986 C.L.C. 1083 and P.L.D. 1989 Lahore 523. The learned counsel for the respondents opposed this submission and supported the impugned decision on this point Order 41 rule 1 C.P.C. prescribes that an appeal shall be preferred in the form of memorandum and this memorandum should be accompanied by copy of the decree appealed from; In the present case, there is no denying the fact that the decree assailed in the appeal was annexed with the grounds of appeal and it is sufficient compliance of the said Order irrespective of the fact that instead of impugning the decree in appeal, it is only the judgment and order which have been impeached. The rules laid down in 1986 C.L.C. 1083 and P.L.D. 1989 Lahore 523 support this view. The office of the appellate Court has also in a way contributed to the negligence of the appellant as the appeal should have been returned initially after its presentation to correct the error by substituting the word decree as against the order but that was not done and, therefore, it would be unjust to penalise the appellant to the extent so as to render the veiy appeal filed by him as incompetent. The omission of not challenging the decree in the memo of appeal, in these circumstances, is not fatal and the appeal is not liable to dismissal on this count and by holding so, the finding of the appellate Court on this count is reversed. The incompetency of appeal on the second ground of non-impleadment of the heirs of Abdul Samad Defendant No. 1, is also not maintainable. It is settled law that if the share of a party is distinct and separably determinate, then the non-impleadment of that party would not abate the appeal in toto but the abatement would be only in respect of the share of the party not included in the appeal. In this case, para 2 of the plaint and statement of D.W. 1 was referred to show that the claim in respect of Defendant No. 1 was regarding his specified and separable share, therefore, the entire appeal could not be held as abated. However, it appears that in the impugned judgment, the appellate Court has not considered this aspect of the case and therefore, I would not pre-empt the finding of the appellate Court on this score. The case is remitted to the appellate Court and the said Court is directed to look into the material on the record and decide this point afresh in the light of the above observations. The appellate Court should also decide the appeal on merits after affording both the sides opportunity of hearing. Parties have been directed to appear in the appellate Court on 24.4.1996. No order as to costs.

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