2012 PLP 1286 (YLR)

M. TABASSUM AFTAB ALVI, J.

The supra titled writ petition has been addressed under section 44 of The Azad Jammu and Kashmir Interim Constitution Act, 1974.

2. Precise facts giving rise to the instant writ petition are that petitioner-plaintiff filed a suit for declaration against the respondents-defendants pertaining to land bearing Survey No. 160 measuring 2 Kanals and 8 Marlas, situated in village Jogal Pall Tehsil Khuiratta, before Civil Judge Court No.1 Kotli on 8-11-2004. After summoning the respondents-defendants filed written statement. On the basis of pleadings of parties, after framing issues, the case was at the stage of evidence when the petitioner-plaintiff moved an application for issuance of attested documents which was rejected by trial Court vide order dated 6-5-2011. Against the above order, a revision petition was filed before District Judge Kotli on 1-6-2011 which after hearing was also dismissed vide impugned order dated 29-10-2011. Feeling aggrieved from the above-mentioned orders the petitioner-plaintiff has filed the instant writ petition before this Court on 25-1-2012.

3. A glance perusal of memo of writ petition reveals that the petitioner has filed instant writ petition against private persons without impleading party to the functionaries performing functions in connection with the affairs of the State. The learned counsel for petitioner was confronted that how writ petition is maintainable without impleading party to the learned District and Civil Judges concerned, he submitted that the above functionaries were not necessary party.

4. After hearing the learned counsel for the petitioner, I have perused the contents of writ petition and examined the appended documents. A perusal of record reveals that District Judge and Civil Judge Kotli were not impleaded party in the writ petition although the orders passed by them were sought to be abrogated. It is settled principle of law that if a necessary party is not before the Court there can be no adjudication. An identical point came under consideration before the apex Court in a case titled "Mirza Lal Hussain v. Custodian of Evacuee Property and others" (1992 SCR 214) and at pages 222 and 223 it was observed by their lordships as under:-- "Another point of fundamental importance was raised by Mr. Abdul Ghafoor Qureshi that Rehabilitation Commissioner, Deputy Rehabilitation Commis-sioner and Assistant Rehabilitation had not been made a party in the writ petition although the orders passed by them were sought to be quashed. On this point the view of this Court has been expressed in the cases reported as Muhammad Resham Khan v. Chairman Inspection Team 1990 CLC 1355 and Abdul Hamid v. Muhammad Zameer 1990 MLD 1617. These judgments support Mr. Qureshi's contention.

14. This point was not raised before the High Court and has not been raised in concise statement filed in this Court, but once it has been brought to our notice the question is whether we should pass an order behind the back of a Government functionary without hearing him. I am quite clear in my mind the answer to this question has to be in the negative. If a necessary party is absent there can be no adjudication. The situation in the aforementioned case was also the same and in fact this point was noticed by the Court itself. Therefore, the writ petition filed by Mirza Lal Hussain can be dismissed on this score alone. "

5. Under section 44 of the Azad Jammu & Kashmir Interim Constitution Act, 1974 no writ petition can be filed against private persons which can be filed against a person performing functions in connection with the affairs of the State or a local authority. An identical point came under consideration before the apex Court in a case titled "Pir Ali Jan Shah v. Chairman Municipal Committee and others (1992 SCR 351) and at page 355 it was observed by their lordships as under:- Under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, only a person aggrieved by the order made by a person performing the functions in connection with the affairs of the State or a Local Authority has been given the right to throw a challenge to it by way of filing the writ petition and get it declared unlawful and of no legal effect. Similar point was again considered by the Supreme Court of Azad Jammu and Kashmir in case titled "Barkat Hussain v. Sardar Misri Khan" (1993 SCR 75). The relevant observations of the precedent case are as under:-- "We have observed that the present case has another peculiarity that Barkat Hussain is the sole respondent in the writ petition which means that a writ was sought against a private person. There is no manner of doubt that a writ does not lie against a private person. We have no doubt that no effective order can legally be passed on the writ petition as framed. In view of the settled legal position, we are of the view that writ petition filed by Misri Khan, respondent before us, should have been dismissed on that short ground." In view of above, finding no substance in the instance writ petition the same is hereby dismissed in limine. H.B.T./16/H.C.(AJ&K) Petition dismissed.