P L D 1985 Quetta 202 (PLP)

This revision is directed against the order, dated 17-6-1984 allowing the intervention of Mst. Fatima Faqir and adding her as defendant in the suit instituted by and on behalf of Air Commodore Muhammad Yamin. The dispute is in respect of a piece of land 15 feet wide in between Plot Nos. 18 and 21 situated at Share-e-Madrasa, Quetta Cantt. The plaintiff claims this piece of land as a part of the land allotted to him while the cantonment authorities are alleging that the plaintiff has encroached the area. While the suit was pending and the written statement was not even filed by the Cantonment Authorities an application was filed by Mst. Fatima Faqir on 9-5-1984 and it was brought to the notice of the Court that the plaintiff had misrepresented the facts in the suit. The land in question was allotted to her and on the orders of the Military Estate Officer, Quetta Cantt she has ,deposited amounts claimed in respect of the land. As such she is interested in the subject-matter of the suit and being a necessary party is entitled to De added as defendant in order to avoid multiplicity of the litigation. The plaintiff made an answer to the application filed by Mst. Fatima and it was asserted that she was not a necessary party to the suit.

2. The learned Additional District Judge 11 Quetta who is seized of the matter vide order dated 17-6-1984 has allowed the application. This revision is against this order and it has been prayed in the revision petition that the order dated 17-6-1984 may be set aside.

3. That S. A. M. Qadri has raised the following contentions before me: (a) That the application made by Mst. Fatima was not maintainable as she was only an attorney and has no right in her own name. (b) That the authority of Mst. Fatima is restricted to only the land measuring 1000 sq. yards and the disputed portion of the land measuring 250 sq. yards would enlarge the plot. The-contentions have not impressed me. The main question in controversy in this revision is the construction of sub-rule (2) of rule 10 of Order I of the Code of Civil Procedure and its application to the facts of this case. On the allegations and counter-allegations about the claim over the disputed piece of plot it was felt necessary by the trial Court that the intervention be allowed and the presence of Mst. Fatima might help the Court in unravelling the mysteries of the litigation and thus to avoid multiplicity of it in order to effectually and completely adjudicate upon and settle the controversy the presence of the interest was considered necessary. In order that a party may be added as a defendant in the suit be/ she should have a legal interest in the subject matter of the litigation. The presence before the Court is necessary within the meaning of Order 1, rule 10(2), C. P. C. so as to ensure that the dispute be finally determined once for all in the presence of the parties. In the instant case it cannot be said, that Mst. Fatima is fighting a vain or purposeless litigation, with a view to avoid multiplicity of suit. The Order I, rule 10(2), C. P. C. has made provision for adding parties. The Court has recorded a conclusion that the proposed party is a person whose presence is necessary. To secure the result that the dispute may be finally determined once for all in the presence of the parties concerned, the Court has a discretion to add parties a discretion which may be exercised judicially. I am of the opinion that the order in question is not subject to revision under section 115, C. P. C. Section 115, C. P. C. enables the High Court in a case in which no appeal lies, to call for the record of any case if the Court by which the case was decided appears to have acted in the exercise of a jurisdiction not vested in it by law or to have exercised its jurisdiction illegally or with material irregularity and further enables it to pass such an order in the case as the Court, may think fit. It would be observed that the section applies to jurisdiction alone, the irregular or non-exercise of it or the illegal assumption of it. The section is not directed against the conclusion of law or fact in which the question of jurisdiction is not involved.

4. The order of the learned Additional District Judge cannot fall under either of the first two clauses (a) and (b) of section 115, C. P. C. as it cannot be said that the trial Court exercised a jurisdiction not vested in it by law or to have failed to exercise a jurisdiction vested in it. The trial Court had jurisdiction to deal with and consider the application and pass an order thereon under Order I, rule 10, C. P. C. It accordingly considered the application and thus exercised a jurisdiction vested in it, nor can the said order be said to fall under clause (c) of the section. It is now an established proposition of law that when a Court has jurisdiction to determine a question and it determines the-said question, it cannot be said that it acted illegally because illegally means in breach of some provision of law or with material irregularity i. e. by committing l some error of procedure which is material because the decision arrived at by it was erroneous. Whether the respondent Mst. Fatima should or should not be impleaded as co-defendants in the suit pending in the lower Court was a question of pure discretion. Even if it be assumed that the lower Court did not exercise its discretion in a sound manner it cannot be said that the Court acted illegally or with material irregularity. E Even on the assumption of the decision being erroneous the order to question cannot fall under any of the three clauses of section 115, Civil Procedure Code and is consequently not subject to revision under the said section. It is my considered opinion that the question of addition F of parties under Order I, rule 10(2), C. P. C. is generally not one of initial jurisdiction but of judicial discretion which has to be exercised in view of all the facts and circumstances of a particular case. In the instant case Mst. Fatima since she claims the transfer of the disputed land is directly interested in the subject-matter of the litigation and has got a legal interest the lower Court has correctly come to the conclusion that her presence would ensure the final determination once for all. The Court below did not exceed its power in directing the addition of Mst. Fatima as defendant in the action nor can it be said that the exercise of discretion was not sound. For the above reasons the revision is dismissed, on the ground that the order in question is one which is not liable to revision under section 115,IH C. P. C. As regards costs I direct that it will abide the ultimate result of the litigation and will be disposed of by the trial Court. M. Y. H. Petition dismissed.