1999 PLP (C (PLC(CS))

The other rule referred by the learned counsel is rule 37 which is as follows:‑‑ "On any hearing of such petition, any person who desires to be heard in opposition to the motion and appears to the Court to be proper person to be heard shall be heard notwithstanding that he has not been served with the notice of motion and shall be liable to costs ordered by the Court in its discretion. The procedure prescribed in rule 35 shall be applicable to such person as well" In light of this contention, Kh. Shahad Ahmad contended that rule 10(2) of Order 1 of Civil Procedure Code being inapplicable, the respondents Nos. 1 to 4 could not be legally added as respondents but they were proper persons within the meaning of rule 37 to be heard by the High Court. The argument of Kh. Shahad Ahmad that rule 10(2) of Order I of the Code of Civil Procedure is not applicable to proceedings under writ jurisdiction runs counter to the principle settled by the Supreme Court of Pakistan and this Court that sub‑rule (2) mentioned above is applicable to proceedings under the writ jurisdiction. It was held in Hussain Bakhsh v. Settlement Commissioner, Rawalpindi and others PLD 1970 SC I), that proceedings before the High Court in Constitutional petitions are governed by the Code of Civil Procedure. In that case one of the question decided by the Supreme Court of Pakistan related to addition of parties. In Muhammad Sadiq (deceased) represented through Legal Representatives v. Muhammad Rafiq etc. (1985 SCMR 376). Supreme Court of Pakistan reiterated the principle that proceedings in writ petitions were governed by Civil Procedure Code. This case also dealt with a dispute about addition of parties. This view has been all along followed by this Court. It is specifically provided in rule 42, reproduced above, that the provision of Civil Procedure Code shall, as far as practicable, apply to proceedings in writ petitions except a habeas‑corpus writ. The arguments advanced by Kh. Shahad Ahmad that the Code would not apply to the matter of addition of parties can have weight if rule 37 overrides rule

42. We do not see any conflict between rule 37 and rule 42 so as to lead to the question which of the two provisions would override the other. In our view the two provisions are distinctly different. Under Rule 10(2) the Court has the power to add a necessary or proper party and the matter has to be decided in light of the conditions laid down in the said sub‑rule. On the other hand it is clear from the phraseology of rule 37 that it has the following features which distinguish this rule from Rule 10(2) of Order 1 of the Civil Procedure Code:‑‑ (i) A person can only be allowed to oppose a writ petition, not to support it; (ii) A person is granted audience without making him a party and the time which is otherwise consumed in amending the petition, serving a notice, filing of written statement etc. is avoided; (iii) A person referred to in rule 37 does not become a party, he only assists the Court and cannot get any relief for himself. Therefore, we are of the view that power of adding a new party in a writ petition is available with reference to rule 10(2), but if a person does not fulfil the conditions laid down under rule 10(2) he still can be heard to oppose the acceptance of a writ petition with reference to rule 37 of the High Court Procedure Rules. This brings us to the question whether respondents Nos. 1 to 4 did fulfil the conditions laid down in Order I rule 10(2) of the Civil Procedure Code. The key to this question is the application itself which was moved by the said respondents for being impleaded as respondents. The application consists of 5 paragraphs. The summary of first four paragraphs is that Muhammad Iqbal got himself appointed in the Government Printing Press through political pressure without recommendations of the selection authority. Due to this appointment the service rights of those working in the Government Printing Press for more than 25 years were adversely affected. The authorities are competent to undo this injustice but Muhammad Iqbal has been able to secure a stay order from the High Court. The applicants are senior most employees in the Government Printing Press and are entitled to be promoted in the higher grades. The fifth paragraph of the application is as follows:‑‑ "That the matter squarely is one relating to terms and conditions of service in which matter a writ petition is not maintainable. The interests of the applicants have badly suffered." Then follows the prayer clause which contains the request that they may be added as respondents in the writ petition. In the application it is not even claimed that respondents Nos. 1 to 4 who moved application were necessary or proper parties. The application also does not disclose any ground on which we may reach the conclusion that they are proper, if not necessary, parties to the writ petition. Their only grievance seems to be that they wanted to persuade the High Court that a writ petition was not maintainable as it related to terms and conditions of service. This contents of the application do not make out a case for being added as respondents in the writ petition. It is, therefore, our view that the High Court fell in error in accepting the application under reference. The order is, therefore, vacated. However, the contents of the application, reproduced above, do make out a case that they are proper persons within the meaning of rule 37 of the High Court Procedure Rules, to be heard by the High Court in support of their contention that the writ petition filed by the appellant is not J maintainable. Therefore, we order accordingly. The appeal is disposed of in the terms indicated above. H.B.T./307/SC(AJ&K) Order accordingly.