JUDGMENT SHEET

PESHAWAR HIGH COURT, PESHAWAR

JUDICIAL DEPARTMENT

Writ Petition No.1327-P/2013

“Khial Badshah Vs. Government of Khyber

Pakhtunkhwa through District Officer Revenue,
Hangu etc”

JUDGMENT
Date of hearing 11.03.2019

Petitioner(s) by: _____________________________.

Respondent(s) by: ____________________________.

***********

IKRAMULLAH KHAN, J.- Through the instant

writ petition, under Article 199 of the

Constitution of Islamic Republic of Pakistan,

1973, petitioner has prayed for the following

relief:-

“It is, therefore, respectfully

prayed that on acceptance of
the instant writ petition, the
judgments and orders of both
the courts be set aside and the
suit of the petitioner be
decreed with costs
throughout”.

02. Brief facts of the case are that

petitioner filed a suit against respondents in

representative form, which was dismissed vide

Order dated 19.07.2012 by the learned Civil

Judge-I/JM, Hangu. Feeling aggrieved from the

said order dated 19.07.2012, preferred Civil

 2

Revision, which was also dismissed vide

Judgment dated 22.02.2013 by the learned

Additional District Judge, Hangu. Hence, the

instant Writ Petition.

03. I have heard learned counsel for the

parties and have gone through the record.

04. The bare reading of the impugned

judgment reveals that petitioner has been non-

suited on the ground that the suit is instituted in

representative capacity, while the petitioner has

prayed relief against plaintiff No.2 which is

against the provisions contained in Order-1 Rule-

8 CPC.

05. Although petitioner has not asked for

relief on behalf of plaintiff No.2 but this

irregularity could not be a ground for dismissal

of the suit.

06. The learned Trial Court had dismissed

the suit on grounds which was not permitted by

law, however, in case of impleading name of

wrong plaintiff, the provisions contained in

Order-1 Rule-10 CPC comes into operation which

reads as:-

“10. Suit in name of wrong plaintiff.-

Where a suit has been instituted in
the name of the wrong person as
plaintiff or where it is doubtful
 3

whether it has been instituted in the

name of the right plaintiff, the Court
may at any stage of the suit, if
satisfied that the suit has been
instituted through a bona fide
mistake, and that it is necessary for
the determination of the real matter
in dispute so to do, order any other
person to be substituted or added as
plaintiff upon such terms as the Court
thinks just.
Court may strike out or add
parties.- (2) The Court may at any
stage of the proceedings, either upon
or without the application of either
party, and on such terms as may
appear to the Court to be just, order
that the name of any party
improperly joined, whether as
plaintiff or defendant, be struck out,
and that the name of any person who
ought to have been joined, whether
as plaintiff or defendant, or whose
presence before the Court may be
necessary in order to enable the Court
effectually and completely, to
adjudicate upon and settle all the
questions involved in the suit, be
added.
(3) No person shall be
added as a plaintiff suing without a
next friend or as the next friend of a
plaintiff under any disability without
his consent.
(4) Where defendant added,
plaint, to be amended.- Where a
defendant is added, the plaint shall,
unless the Court otherwise directs, be
amended in such manner as may be
necessary, and amended copies of the
summons and of the plaint shall be
served on the new defendant and, if
the Court thinks fit, on the original
defendant.
(5) Subject to the provisions
of the Limitation Act, 1877 (now
Limitation Act, 1908), Section 22, the
proceedings as against any person
added as defendant shall be deemed
to have begun only on the service of
the summons.
 4

07. However, the learned Trial Court

failed to exercise its due jurisdiction in this

regard.

08. The learned Appellate Court has

dismissed the revision petition also on the

ground that dismissal of suit in term of Order-1

Rule-8 CPC was appealable.

09. The provisions contained in section

96 CPC provides right of appeal against the

original decree, while the decree is defined in

subsection-2 of section-2 of CPC, which reads

as:-

“2 (2) “Decree” means the formal

expression of an adjudication
which, so far as regards the Court
expressing it, conclusively
determines the rights of the
parties with regard to all or any of
the matters in controversy in the
suit and may be either preliminary
or final. It shall be deemed to
include the rejection of a plaint
[the determination of any
question within section 144, and
an order under rule 60, 98, 99, 101
or 103 of Order XXI] but shall not
include—
(a) Any adjudication from which
an appeal lies as an appeal
from an order, or
(b) Any order of dismissal for
default”.

10. The above mentioned definition of

decree does not include dismissal of a suit on

account of mis-joinder or non-joinder of parties

 5

in term of either Order-1 Rule-8 or Order-1 Rule-

10 CPC.

11. While it is mandatory provision of law

envisaged thereunder Rule 9 of Order-1 CPC that

no suit shall be defeated by reason of the mis-

joinder or non-joinder and the Court may in

every suit deal with the matter in controversy so

far as regards the right and interests of the

parties actually before it.

12. The provisions contained in section

104 and Order-43 of CPC does not provide right

of appeal where a suit was dismissed in term of

Order-1 Rule-10 CPC. However, sub-section 2 of

section 115 CPC, make such order to be revisable

by the District Judge. Revisions always lies in

view of clause (a) of sub-section (1) of section

115 CPC against any judgment or order which is

decided by subordinate court to have exercised a

jurisdiction not vested in it by law.

13. As discussed hereinabove, and

keeping in view, the provisions contained in

Rule-9 of Order-1 CPC, the learned Trial Court

was not within his jurisdiction to dismiss the suit

of petitioner for mis-joinder or non-joinder or

impleading name of wrong plaintiff etc,

 6

therefore, such order or judgment rendered

without jurisdiction, where no express right of

appeal is conferred on an aggrieved person, may

file revision petition against void order.

14. Therefore, this Writ Petition is

admitted and allowed. The impugned Judgments

are set aside and the case is remanded to

learned Trial Court to transpose the parties in

view of Order-1 Rule-10 CPC as well as to

exercise its inherent jurisdiction in term of

section 151 CPC for the end of justice.

ANNOUNCED.
11.03.2018.

JUDGE

Himayat