1997 PLP 2549 (MLD)

This report clearly shows that this Nali "suit branch" is being used for the flow of the watercourse 6‑BR and irrigates lands in command of watercourse 6‑BR. At this stage it is immaterial whether the above Nali is unauthorised or illegal. That will be between applicant and respondents Nos. l to

4. It has to be determined whether the respondents Nos.5 to 7 are necessary and proper parties and whether flow in this Nali "suit branch" affects the rights of respondents Nos.5 to

7. The learned Advocate of the applicant has placed reliance on Ghulam Muhammad and others v. Mehtab Baig and others reported in 1983 SCMR 849, (2) Muhammad Yasin Khan Sherpao v: Rawat Busal (Private) Limited 1989 ALD 246; (3) Muhammad Kalim Khan and 2 others v. Muhammad Farouk Khan and another (PLD 1987 Karachi 38), (4) M/s Paragon Company v. Government of Sindh reported in 1993 MLD

853. Whereas the Advocate for the respondents has placed reliance on Ashraf Muhammad Ismail v. C.V.E. Endeavour and two others reported in 1988 MLD 2457, (2) Islamic Republic of Pakistan v. Abdul Wali Khan PLD 1975 Supreme Court 463 and (3) A.M. Qureshi v. Deputy Commissioner (East), Karachi 1989 MLD 4543. All above rulings cited by both the Advocates define and explain what are proper necessary parties: It has been held in Muhammad Yasin Khan Sherpao v. Rawat Busal (Private) Limited 1989 ALD 246:‑‑ "A person may be added as a party to suit in two cases only, namely (1) when he ought to have been joined and is not joined that is when he is a necessary party and (2) when without his presence suit cannot be completely adjudicated. No jurisdiction is available to add a party in any other case." In PLD 1987 Karachi 38 it has been held as under: "Section 3‑‑Civil Procedure Code (V of 1908), Order 1, Rule 10‑ Terms 'proper party', and 'necessary party', connotation of A‑‑person would be a party whose presence before Court was deemed necessary in order to enable Court effectually and completely to adjudicate upon and settle all questions involved in suit‑‑A necessary party was one whose presence was necessary to pass effective decree. " In 1993 MLD 853 it has been held: "Art. 199‑‑Civil Procedure Code (V of 1908), Order I, Rule 10‑ Impleading of intervenor as a party in Constitutional petition‑ Essentials‑‑Intervenor can be joined during pendency of Constitutional petition only when presence of such party before the Court was necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit." In 1988 MLD 2457 it has been held: "Unless party proposed to be added had directly or indirectly some interest in controversy or its adjudication, such power could not be invoked: A party could be impleaded only if it was a necessary party or proper party. A necessary party would be one without whom no order could be made effectively while a proper party would be one in whose absence an effective order could be made but whose presence was necessary for complete and final decision of questions involved in proceedings." In PLD 1975 Supreme Court 463 it has been held: "Proper party must be one whose interest is likely to be affected even though no relief claimed against him‑‑Persons having no interest likely to be affected by proceedings, persons only generally interested in common with others, or persons whose addition likely to set up new cause of action‑‑Not proper parties." In 1989 MLD 4543 it has been held: "Order 1, Rule 10(2)‑‑Provision of Order 1, Rule 10(2), C.P.C.‑ Object Provision of Order 1, Rule 10(2), C.P.C. is made for a number of reasons including avoidance of multiplicity of suits." In the light of the above superior Courts, it has been seen whether respondents Nos.5 to 7 are necessary and proper parties whether any decision will affect their rights. The report of the Commissioner clearly indicates the lands of respondent Nos.5 to 7 are not being irrigated by the flow of watercourse in suit Nali. These lands of respondents are in command of watercourse 19‑L. The suit Nali is from the Government land. Whether this Nali is authorised or not. Whether the applicants are entitled to get the land irrigated through this Nali is as a matter between the applicant and the respondents Nos. l. to

4. Decree in the suit will not affect the rights of the respondents Nos.5 to 7 in respect of their lands. At least reason given by, respondents No.5 to 7 in the affidavit filed alognwith application under Order 1, Rule 10, C.P.C. does not at all reveal any interest of the respondents Nos.5 to 7 in flow of the water in suit Nali. They claim that suit Nali is for the flow of the water of 192 for the irrigating their land which contradicted by the report of the Commissioner against which nobody has filed any objection. With the above observations the Revision Application is allowed and the impugned order is set aside with no order as to costs. A.A./M‑2109/K Revision accepted.