1984 PLP 2452 (CLC)

‑ O. 1, r. 10, S. 151‑Application‑Impleading new defendants

Main question to be determined between parties requiring impleading new defendants‑Application allowed and order of Court below declining impleading of new defendants set aside. A. S. Vaswani for Appellant. Rasool Bux for Respondents. Date of hearing: 12th December, 1983. This revision is directed against the order, dated 21‑9‑1983 passed by the learned Civil Judge, Kotri, dismissing the application under Order 1, rule 10 read with section 151, C. P. C. filed by the applicant. The brief facts which give rise to this revision are as follows:‑

2. The applicant is a company registered under the Companies Act, 1913, and owns a factory which manufactures the cooking edible oil and for its packing it imports and purchases from the local market the Electrolytic Tin Plates. The plates are of prime quality and having bright finish, soft temper base and are of light weight. The Union Council, Bholari awarded a contract to the respondent for the year 1982‑83 and the said respondent has been charging octroi on the goods coming within the limits of the said Union Councils at the rate prescribed in octroi schedule. The said Union. Council revised the octroi schedule. The applicant made an application to the Chairman of the said Union Council in terms whereof it was requested that since there is no mention of the electrolytic tin plates in the octroi schedule as such it is not liable to pay the octroi but the respondent was insisting to change the octroi on the goods at the rate of Rs.41 per 40 kilograms. The said application was considered in the monthly meeting of the said Union Council and decided that the applicant's goods be charged under item No. 22 of the revised octroi schedule, i.e. at the rate of Rs.1 per 40 kilograms, and the said decision was intimated for com pliance to the respondent. The respondent insisted on the payment of octroi at the rate of Rs.4 per 40 kilograms. The applicant tiled a suit being Suit No. 33 of 1982 for declaration and injunction in the Court of he learned Civil Judge, Kotri, alongwith an application under Order XXXIX, rule 1, C. P. C. After hearing the parties, the learned Civil Judge, granted the injunction application. That during the pendency of the said suit, the Union Council awarded the contract of octroi for the year of 1983 to Messrs Anwar & Company. The applicant made an application under Order I, rule 10, C. P. C. read with section 151, C. P. C. for impleading the Union Council, Bholari and Messrs Anwar & Co., the new octroi con tractor of the Union Council for the year 1982‑83 as the defendants Nos. 2 and 3 respectively. The learned Civil Judge rejected the application by his order dated 21‑9‑1983. 1'he applicant being aggrieved by the aforesaid im pugned order preferred this revision on the grounds mentioned in the Memo. of Revision. The learned counsel for the respondent No. 3 has filed a state ment stating therein that he has no objection to becoming a party in Suit No. 33 of 1983.

3. I have hard Mr. A. S. Vaswani, learned counsel for the applicant who has contend‑d that the order passed by the learned Civil Judge is not in accordance with the provisions of Order I, rule 10, C. P. C. read with section 151, C. P. C. The contract with the previous contractor has expired on 30‑6‑1983 and the Union Council awarded the contract ' of octroi to the new contractors as such the presence of the new contractors is essential for the just decision of the suit.

4. A party can be impleaded only if it is a necessary or a proper party. A necessary party is one without whom no order can be made effectively while a proper party is one in whose absence an effective order can be made out whose presence is necessary. for a complete and final decision of the ques tion involved in the proceeding This point is considered by the Supreme Court in the case of Islamic of Republic of Pakistan v. Abdul Wall Khan (PLD 1975SC463) wherein it had been observed as follows :‑‑ "Now 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. This does not, therefore, extend to persons who have no interest which is likely to be affected by the proceedings nor does it embrace persons only generally interested in common with others nor can persons be added as parties so as to set up a new cause of action which does not concern the original parties. In a generic sense, every decision of this Court on a point of law is likely to affect every one in this country in whose case a similar point of law arises, but this does not give every person in this country a right to intervene in every proceeding before this Court, merely because it is likely to affect him in some future proceedings."

5. The respondent No. 3 has no objection for being impleaded as a defendant. In these circumstances. I am of the view that the Union Council and the new contractors are necessary and proper parties and as such the suit cannot proceed in their absence and they are necessary for an effectual and complete adjudication of all the questions involved in the suit. These are necessary parties to a suit if they have such at interest in the matter in controversy that it cannot be determined without either affecting that interest or leaving the interest of these who are before the Court in situation that might be embracing and inconsistent with equity.

6. From the nature of relief sought in the present suit, it is clear that' the applicant is seeking a declaration and injunction. In the circumstances that new contractors could be impleaded as a party particularly in the face of no objection by the new contractors. I am of the view that where a full and final adjudication is possible between the parties the existing parties of all questions involved in the suit, the Court has no jurisdiction to add parties unless, of course, every body consent to addition.

7. The object of adding a proper party is to avoid multiplicity of proceedings. Necessary parties are these persons in whose absence no effective decree at all can be passed. Test in such cases is to determine whe ther a party is necessary or not if a fruitful decree can be passed in his absence. The expression "questions involved in suit" means questions as between the parties to litigations with regard to right set up and the relief claimed one side and denied on the other side. Applications of this nature must not be allowed if its grant would implead a person and the nature of the suit is altered. It is clear from the proceedings in the suit that the main question to be determined between the parties is whether the goods in question are covered item No. 22 of the revised schedule or not. For these reasons 1 hold that the Union Council as well as new contractors are necessary and proper parties to the suit. The impugned order declining the new contrac tors and the Union Council as defendant is, therefore, without jurisdiction and needs to be set, aside in the exercise of the revisional power of this l Court. In the result, the above revision petition is accepted and the impugned order of the learned Civil Judge, Kotri, passed in the suit whereby the new contractors and the Union Council, Bholari, had not been impleaded as defendants, is set aside, and the application under Order 1, rule 10, C. P. ~~ allowed, With no orders as to costs. M.Y.H. Petition accepted.