1979CLC891 (PLP)

O. 1, r. 10-Addition of parties-Question involved in suit : whether construction made after proper sanction or not - Fate of case depending upon determination of such point alone-Question of encroachment on a street-Not at all relevant-Question of males fides also raised against Municipal Corporation (first respondent) and not against second respondent, such respondent having not even been named in plaint-Allegation of second respondent having made some encroachment or wanted to get access to a street also not relevant for decision of particular question involved in suit-Suit also one for permanent injunction and such being permissible to be sought only against Municipal Corporation , issuing notice to demolish in dispute-Trial Court's order allowing second respondent to be added as a party to suit filed by petitioner challenging notice of demolition and requesting for issuance of a permanent injunction, held, based upon non-consideration of O. I, r. 10, pleadings of parties, and contents of application of second respondent, illegal, and passed with material irregularity in exercise of its jurisdiction. Sanaullah Malik for Petitioner. Ch. Hamid-ud-Din for Respondent No.

1. Respondent No. 2 in person. Date of hearing : 21st June, 1972. A notice directing the petitioner to demolish the wall in question was served upon him under section 78(2) of the Municipal Administration Ordinance on the ground that the construction was made without legal sanction of the plan. The petitioner filed a suit for permanent injunction against the Lahore Municipal Corporation challenging this notice on the ground that the boundary wall in question was not a new construction, but was in existence since before Partition. In para. 4 of the plaint, it was alleged that this notice was illegal, without jurisdiction and ineffective and had been sent with males fide intention to benefit a B. D. Member who has a great influence upon the Corporation authorities and had made encroachment on a plot of land in the Shersbah graveyard just . behind the said wall. It was further alleged that this B. D. Member wanted to get access to his encroached land from the Sham Street. This suit was contested by the Lahore Municipal Corporation on the ground that a wall was constructed on the street land in contravention of the provisions of the Municipal Administration Ordinance and the notice under section 78(2) was legal because the construction was itself illegal and moreover there was encroachment by the petitioner on the land, for which if need arises, action will also be taken according to law. This plea for the Corporation is extremely vague but from the portion showing an intention to take legal action in regard to the encroachment, it is clear that the not was not about encroachment, but on account of construction in violation o the provisions of the Ordinance, section 77 of which requires sanction of a plan before erection or re-erection of a building. Respondent No. 2 who happened to be the B. D. Member complained of in para. 4 of the plaint, filed an application under Order I, rule 10, C. P. C. for being impleaded as a party to the case in order to "defend his cause and prestige". In para. 2 he alleged that the petitioner had unauthorisedly built his house and the disputed wall on the passage leading to his house (respondent No. 2) and to Eid Gah, the shrine of Hazrat Baba Sher Shah and the graveyard. This application was resisted by the petitioner but was allowed by the learned trial Court by order dated 10-1-1970, on the ground that in view of the admission that respondent No. 2 was the B. D. Member complained of and the allegation in the plaint that the impugned notice was males fide and had been sent with the intention to benefit the B. D. Member, respondent No. 2 was a proper party in the suit. However, the learned trial Court has not taken into consideration the pleadings of the parties or the addition of a different cause of action which is being sought to be introduced by respondent No.

2. It is apparent from the plaint that the cause of action is the legality or illegality of the notice which could be determined only by proving whether the construction of the disputed wall was in accordance with or contrary to the provisions of sections 77 and 78 of the Municipal Administration Ordinance. The question whether the site of the wall was a part of the street or not, was foreign to this cause of action and in their written statement the Corporation had made it clear that necessary legal proceedings will be taken in future on this cause of action. Respondent No. 2, however wants to be impleaded as a party partly as a matter of prestige and partly to introduce a fresh cause of action that the wall was constructed on the site of the street and had blocked the passage not only to the house of respondent No. 2 but t the shrine, Eid Gah, graveyard as also to other places. Under Order I, rule a person who only acts as one probono publico or wants to be added as a part only as a matter of prestige, is neither a necessary nor a proper party. Similarly, a person who wants to introduce a new cause of action in the suit is not also a necessary or a proper party. Order I, rule 3, C. P. C. provides that a person against whom the right to relief in respect of or arising out of the same act or transaction or series of acts or transactions is alleged to exist, may be joined as defendant provided that if separate suits were brought against such persons, any common question of law or fact would arise. According to Order I, rule 7 a person may be joined as defendant against whom the plaintiff is entitled to the right to redress and he may join two or more defendants in order that the question as to which of the defendant is liable and to what extent may be determined as between all parties. In order to give a wide discretion to the Court to meet cases of defect of parties, it has been provided in Order I, rule 10(2) that the Court may at any stage of the proceedings order that the name of any person who ought to have been joined as a party 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. The power of the Court to implead a party is, therefore, subject to the condition that either (1) the person to be added should be one who ought to have been joined ; or (2) his presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon anti settle all the questions involved in the suit. The first in description 2 is a necessary party and the second is the description of what is known in legal parlance as a proper party. Every person i not a proper party. His presence must be necessary to enable the Court t effectually and completely adjudicate upon and settle all questions and such questions must be the questions "involved in the suit". This clearly show that a person can not be allowed to be added as party with a view to add to the cause of action to the suit or to raise questions extraneous to the suit itself. The only question in the present case is, as already pointed out, whether the construction has been made after proper sanction or not, an the fate of the case depends upon the determination of this point only. The question of encroachment on a passage or street is not at all relevant. The question of mala fide also has been raised against the Municipal Corporation and not against respondent No. 2 who has not even been named in the p plaint. The allegation that respondent No. 2 had made some encroachmen or wanted to get access to Sham Street is also not relevant for the decision of the particular question involved in the suit. Moreover the suit is for permanent injunction and the injunction in the circumstances of the case could be sought only against the Municipal Corporation (respondent No. 1)I who had issued the notice. The learned counsel for the respondent mainly relied upon Muhammad Idris v. Collector of Customs (P L D 1971 Kar. 911) in which certain betelnuts imported on bonus vouchers were detained by Collector Customs and in a suit challenging this detention it was alleged by the plaintiff that this was done by the intervention of the Central Board of Revenue and the Trading Corporation of Pakistan Ltd. It was held that as some allegations of mala fide were made against the Trading Corporation of Pakistan Limited they were at least proper party. The ratio of this case is not applicable to the present case because I have already discussed that a new cause of action is being introduced by respondent No.

2. With due deference, I am also unable to accede to the proposition that if some authority has acted mala fide on the intervention of another person who may or may not have his own axe to grind, such a person is a proper party. In each case, in order to determine whether a person is a proper party or not, it is necessary to find out whether his presence before the Court is necessary to effectually and completely adjudicate upon and settle all the questions involved in the suit. The order of the learned trial Court is based upon non-consideration of Order I, rule 10, C. P. C., the pleadings of the parties and the contents of the application of respondent No. 2 and it has acted illegally and with material irregularity in the exercise of its jurisdiction by holding that respondent No. 2 is a proper party. The impleading of respondent is without jurisdiction because it is only a proper party or necessary party who can be impleaded and not any other person. The revision petition is, therefore, accepted, the impugned order is set aside and the application under Order I, rule 10, C. P. C. submitted by respondent No. 2 is dismissed with costs. The costs will be borne only by respondent No.

2. S. A. H. Petition accepted.