1986 PLP 1828 (CLC)

Muhammad Hanif Mangifor Respondent No.l. Zawar Hussain Jafferi, A.A.‑G for Respondents No. 2 to

5. Date of hearing: 25th February, 1986. The petitioner in this petition has impugned the order of learned District Judge, Sukkur, dated 1‑10‑1983 whereby in the revision petition he has set aside the order of learned Senior Civil Judge, Ghotki impleading the petitioner as a party to the suit filed by respondent No. 1 against respondents Nos. 2 to

5. The brief facts of the case are that the disputed land measuring about 14 Acres in Deh Chanad, Taluka Ubauro, used to be taken on lease by the ancestor of the present petitioner on Harap rights till 1967 whereafter the land was put in the schedule of Defence Forces Scheme and was granted to the father of respondent No.

1. On appeal filed by the father of the petitioner the Additional Commissioner, Sind by his order, dated 12‑i1‑1973 cancelled the grant of this land and granted the same to the father of the petitioner on the ground that late Captain Duran Khan, father of respondent No. 1 was not living in the land and had no interest in it and that the land had been developed by the father of the petitioner. Being dissatisfied with this order respondent No. 1 as legal heir of his dead father late Captain Duran Khan preferred an appeal before the Member, Board of Revenue. The Member, Board of Revenue by his order, dated 23‑9‑1981 cancelled the grant in favour of father of petitioner and also rejected the appeal of respondent No. 1 and directed that land be granted to some other genuine settlers. Aggrieved by this order the petitioner filed review petition before the Member, Board of Revenue which is still pending whereas the respondent No. 1 filed a suit in the Court of Senior Civil Judge, Ghotki praying therein that the order of the Member, Board of Revenue, dated 23‑9‑1981 may be declared as illegal and respondent No. 1 be declared to be entitled to retain the land in dispute. The respondent No. 1 filed this suit without joining the petitioner as party who moved an application under Order 1, rule 10, C.P.C. for being joined as party. The learned Senior Civil Judge, vide his order, dated 21‑2‑1983 impleaded petitioner as party which order was set aside by the learned District Judge by the impugned order. The petitioner filed a revision petition in the High Court at Sukkur which was subsequently dismissed by this Court on the ground that second revision was not maintainable. Hence this constitutional petition. It is contended by the learned counsel for respondent No. 1 that constitutional petition against the order in revision of the learned District Judge is not maintainable. In his support he has relied upon unreported decision of Division Bench of this Court in Constitutional Petition No. 42182. In this case the application of the petitioner to be joined as party was rejected by the Civil Judge and was also rejected in the revision petition by the learned District Judge. While dismissing the constitutional petition the learned Judges observed: "It will suffice to observe that the, question as to whether a person is a proper or necessary party in a suit is a question to be decided by the Trial Court or by the revisional or appellate Court. It is also well‑settled law that if a person is not a party to a suit he will not be bound by the judgment in case it affects his right or he can file appeal against judgment if the judgment takes away his right without impleading him but in no case the constitutional petition is maintainable." It is contended by the learned counsel for the petitioner that decided on its own merits. In the instant case the order which is being challenged by respondent No. 1 in the civil suit was passed in proceedings in which the petitioner was a party and which order he has also challenged in review petition which is pending. The land for the entitlement of which the declaration is sought by respondent No. 1 is the land which is claimed by the petitioner on the basis of ancestral right of Harap on the land and also on the basis of order of Additional Commissioner granting this land to his father. As such he cannot be said to be neither necessary party nor a proper party. Reliance is placed on the case of Islamic Republic of Pakistan v. Abdul Wali Khan P L D 1975 S C 4633. Their Lordships while discussing the meaning of proper party' have held: "A proper party is a party whose presence before the Court is necessary to enable the Court to effectually and completely adjudicate upon and settle all questions involved in the proceedings. The terms "questions involved" include all matters, material to a proper decision of the case but the object of making such persons parties is to prevent multiplicity of proceedings. The person must, therefore, be a person whose interest is likely to be affected even though no relief is claimed against him." Judging the case of the petitioner in light of the law laid down by their Lordships there can be no doubt that the interest of the petitioner is involved in the proceedings and, therefore, he is a proper party. The question that arises now is whether in constitutional petition this Court can set aside the order passed by the learned District Judge in revision petition. There can be no dispute that this Court has got powers in exercise of its writ jurisdiction to set aside any order which is unlawful or without jurisdiction. It is argued by the learned counsel for the petitioner that the order of the learned District Judge was not in the proper exercise of his judicial powers. The powers that vested in the District Judge under section 115(2), C.P. C. are defined in subsection (1) of the said section. The learned District Judge could make an order in a case where the subordinate Court has exercised jurisdiction not vested in it by law or has failed to exercise jurisdiction or has acted in the exercise of its jurisdiction illegally or with material illegality. It is not contested that learned Senior Civil Judge had no jurisdiction to pass the order impleading the petitioner as a party or that he failed to exercise his jurisdiction. The only point to be seen is whether he had acted in exercise of his jurisdiction illegally or with material irregularity. As already pointed the facts of the present case clearly show that the petitioner was a proper and necessary party and his presence was necessary to avoid multiplicity of the suit. In the case of Mst. Khurshid Begum v. Malku and others 1983 S C M R 534, the Supreme Court set aside the order passed in revision by the High Court setting aside the order of the trial Court impleading the petitioner as a party. Their Lordships held: "Her (petitioner) being impleaded at this stage will definitely eliminate multiplicity of litigation and enable full and proper adjudication of the factual controversy raised in the suit. Judged in this context, the impugned action of the trial Court was an exercise of judicial discretion which was based on proper consideration. There cannot be said to be any error or material irregularity in its exercise to attract the revisional jurisdiction of the High Court." In the instant case also we find that the order of the learned Senior Civil Judge impleading the petitioner as a party was the exercise of judicial discretion which was passed on proper consideration. As such it did not attract the revisional jurisdiction of learned District Judge. The view of the District Judge that the petitioner was not a proper party because even if the suit of respondent No. 1 was dismissed petitioner was not entitled to get the land was uncalled for at the stage of deciding a revision petition .specially in view of the fact that petitioner is still agitating his right over the land in the proper forums. Considering all the factual and legal aspects we are of the opinion that the impugned order of the learned District Judge was without lawful authority and illegal: As a result this petition is allowed and the impugned order of learned District Judge is set aside as illegal and without lawful authority. The learned Senior Civil Judge will proceed with the suit with the petitioner as a party to the suit. A. A. Petition allowed.