1986 PLP 2805 (CLC)

Nemo for Respondent. Date of hearing: 7th August, 1986. This revision application is directed against the order of learned IInd Additional Sessions Judge, Larkana, dated 25‑3‑1985, whereby he allowed the application of respondent under Order I, Rule 10, C . P. C . and joined him as a party to the proceedings in application under section 2(e) of "Musalman Waqf' Act 1925 filed by the applicant for his appointment as "Mutawalli' of 'Dargah' of Pir Yousuf Shah Jilani. Heard the learned counsel for the applicant. The respondent remained absent. He was given several adjournments to engage a counsel but he has neither engaged counsel nor was he present on the date of hearing. His application for adjournment was rejected. There appears to be a long history of litigation between the parties in respect of the appointment as 'Mutawalli'. Khan Fakir father and predecessor title of the applicant had filed Suit No. 155 of 1978 in the Court of Senior Civil Judge, Larkana for injunction against Hakim Shah, the father and predecessor of the respondent. Hakim Shah also filed Suit No.3 of 1968 in the said Court against Khan Fakir for declaration that he was 'Mutawalli' and injunction. Both the parties claimed to be hereditary 'Mutawalli'. Both the litigants died during the pendency of litigation and legal heirs were joined as parties. The suit No. 155 of 1978 was dismissed by the learned trial Court. The learned appellate Court held that the 'Mutawalliship' was not hereditary and Khan Fakir who was appointed as 'Mutawalli' by the District Court during the pendency of the suit, died during the pendency of the suit, therefore, the suit abated. The learned appellate Court also dismissed the Suit No. 3 of 1968 filed by Hakim Shah, which was decreed by the trial Court. The matter came up before this Court in Civil Revision Applications Nos. 37 and 40 of 1983. The relevant order is reproduced as under:‑ "The judgment of the first appellate Court seems to be just and proper as it has directed the parties to approach the District Court for getting themselves appointed as Mutawalli. Even the legal heirs of the late Khan Fakir have not been given the management of the Dargah or the property attached thereto. It is, therefore, clear that the applicants in Civil Revision No. 37 of 1983 can approach the District Court for considering their claim to become Mutawalli of the Dargah and the property attached thereto apart from the right of the legal heirs of late Khan Fakir or any other person who may be interested in getting himself appointed Mutawalli." In persuance of these directions the applicant filed the application under section 2(e) of 'Musalman Waqf & Act in the District Court. It is contended by the learned counsel for .applicant that the pleas raised by the respondent in objections are res judicata as their rights to 'Mutawalliship have been finally rejected in the suit mentioned above. He has also relied upon P L J 1985 S C 461 wherein it is observed as under:‑ "It is needless to reiterate the true scope of powers vested in the Court for adding parties to a pending suit under Order I, Rule 10(2) of the Code of Civil Procedure. It is now well‑settled that under this provisions two classes of persons, namely, necessary parties and proper parties can be joined. The former consists of persons who ought to have been joined as parties and the latter of persons without whose presence the questions in the suit cannot be completely and effectually adjudicated upon. If a person does not fall in either of these two classes, that is to say, he is neither a necessary nor a proper party, then the Court has no jurisdiction to add him as a party under this sub‑rule." It is conceded by Mr. Shahani that the rights to the Office of Mutawalliship in question is now hereditary or inheritable and that any person, including the respondent can be appointed as Mutawalli by the District Court, if the District Court deems him to be a fit and proper person. It is further conceded by him that after the objections have been filed by the respondent to the application under section 2(e), this application cannot be properly disposed of without hearing the objections of the respondent. He also concedes that the respondent has right to be heard in the proceedings as objector but it is contended that he cannot be joined as party because he is neither proper party nor necessary party. The proceedings in question are not in the Form of regular suit but are miscellaneous proceedings in the Form of application. It is settled law that the District Judge as the principal Court of original jurisdiction has, by virtue of his power as a Kazi, a general power of appointing a Mutawali, when there is a vacancy in the Office, in a summary proceedings. The proper parties defined by their Lordship of Supreme Court in the abovementioned case consist of those persons without whose presence the question in the suit can not be completely and effectively adjudicated upon. Even according to the admission of Mr. Shahani, application filed by the applicant in the District Court cannot be disposed of without hearing the objections filed by the respondent. Under the circumstances respondent can be considered as proper party to the proceeding. It has already been pointed that this Court in revision application has held that applicants in Civil Revision No. 37 of 1983 can approach the District Court for considering their claim to become Mutawalli of Dargah. It may be pointed out that present respondent was also one of the applicants in the said revision application. Under these circumstances, I find no illegality or impropriety in the impugned order which calls for any interference by this Court in its Revisional jurisdiction. The application is, therefore, dismissed with no orders as to costs. A.A. Revision dismissed.