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Petitioner: HAJI MUHAMMAD VS Respondent: JEHAN, KHAN
1988 S C M R 1918
1988 S C M R 1918
Present: Abdul Kadir Shaikh and Zaffar Hussain Mirza, JJ
HAJI MUHAMMAD‑‑Petitioner
versus
JEHAN KHAN and others‑‑Respondents
Civil Petition for Leave to Appeal No.69‑Q of 1987, decided on 6th June, 1988.
(From the judgment/order of Baluchistan High Court, Quetta dated 21‑9‑1987 in Civil Revision No.94 of 1987) .
Civil Procedure Code (V of 1908)‑‑
‑‑‑O.I, R.4‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑Suit decreed in favour of petitioner‑‑Decree set aside by High Court in revisional jurisdiction on ground that petitioner was not plaintiff in his personal capacity‑‑View based on re‑constituted record of case as the original record was misplaced during proceedings before Trial Court‑‑Leave to appeal granted to consider contention that findings of High Court were factually incorrect and that petitioner being decree‑holder, was in any case a necessary party in the appeal as well as in revision and no order adverse to him could be passed or decree in his favour set aside without impleading him as a party in his own right.
Muhammad Aslam Chishti, Advocate Supreme Court and Raja M.Afsar, Advocate‑on‑Record for Petitioner.
Date of hearing: 6th June, 1988.
ORDER
ABDUL KADIR SHAIKH, J.‑‑This petition arises out of a suit which was decreed in petitioner's favour by the judgment of Qazi, Kohlu dated 30‑11‑1986. Respondents 1 to 3 who were defendants in the suit filed an appeal against the judgment and decree before Majlis e‑Shoora, but instead of joining the petitioner as a party, made respondent‑4 as a party who was a co‑plaintiff but later on did not participate in the proceedings. The appeal was, however, dismissed but in revision application at the instance of respondents 1 to 3, learned Judge in the High Court set aside the judgment and decree passed in petitioner's favour on the ground that he was not the plaintiff in his personal capacity. This view was taken by the learned Judge in the High Court on the basis of re‑constituted record as the original record had been misplaced during the proceedings before the trial Court.
Mr. Muhammad Aslam Chishti, learned counsel for the petitioner; challenges the finding reached by the learned Judge in the High Court as being factually incorrect and further submits that petitioner who was the decree‑holder was, in any case, the necessary party in, the appeal as well as in revision and no order adverse to him could be passed or the decree in his favour set aside without pleading him as a party in his own right.
This, amongst other submissions raised in support of the petition, deserves consideration. We therefore, grant leave to appeal and allow the petition. Security Rs.2,000
It will be necessary to examine the original record of the learned Qazi, Kohlu which culminated in the judgment and decree dated 30‑11‑1986. Office to send for it so as to be made available at the next date of hearing.
Respondents 1 to 3 are restrained from alienating or disposing of the suit property in any manner until the appeal is finally decided.
M.I. /M‑538/S Leave granted.