1991 PLP 1360 (CLC)

(b) Civil Procedure rode (V of 1908)‑‑‑ ‑‑‑‑O.I, R.10 & S.115‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Impleading of party‑‑‑Constitutional jurisdiction, exercise of‑‑‑Order of Trial Court, impleading applicant as party (defendant) in suit was approved by Appellate Court in its revisional jurisdiction‑‑‑Further revision from order passed by such Court was not available‑‑‑Order passed in revision by said Court must be deemed to have attained finality subject to its judicial revision by High Court in its supervisory jurisdiction‑‑‑Question of addition of parties under O.I, R. 10, C.P.C. generally was not one of initial jurisdiction of the Court but of a judicial discretion which had to be exercised in view of all the facts and circumstances of a particular case‑‑‑Unless the discretion was found to have been exercised unreasonably, it ought not to be interfered with by High Court in its extraordinary jurisdiction‑‑ Suits filed by parties being somewhat identical and requiring concurrent trial by a common Court, High Court in exercise of suo motu jurisdiction in order to avert inconvenience to the parties and conflicting decisions directed that both suits be tried by one Court. Sanaullah Khan v. Lahore Municipal Corporation, Lahore and another 1979 C L C 891 and Fazal Karim and another v. Muhammad Ashiq and 2 others 1983 C L C 272. ref. Sardar Asmat Ullah Khan for Petitioner. Petition under Article 199 of the Constitution is against a revisional order of learned Additional District Judge, Rawalpindi dated 7‑3‑1991 upholding that of learned trial Court ordering impleadment of an intervener as a party- defendant to the civil suit filed by the petitioner against Cantonment Board, Rawalpindi for a perpetual injunction.

2. Petitioner owns a house in village Topi, Cantonment Board, Rawalpindi issued a notice under section 185 of the Cantonment Act, 1925 for dismantling of some alleged illegal construction. Part of it seems to have been already demolished. Petitioner filed a suit against the Cantonment Board for a decree of perpetual injunction restraining them from demolishing his house, its gate, boundary walls or occupying his land for user as a passage for others. Alongwith the plaint in the suit for perpetual injunction he also brought an application for an interim relief indicated in it. Cantonment Board resisted the suit as also the prayer for interim relief. Substantial defence of the Cantonment Board is contained in paras. 4 and 7 of their written statement. In course of trial of the suit, Sub. (Rtd.) Muhammad Khan .filed an application under Order 1, rule 10, Civil Procedure Code for his impleadment as a party to the suit. It was averred that the petitioner had blocked his passage and the decision in the suit filed against the Board shall affect his rights/interest. Petitioner opposed the prayer. By an order dated, 5‑1‑1991, the trial Court allowed the application and ordered impleadment of the applicant holding that he was a necessary party to the suit. In revision filed by the petitioner learned Additional District Judge agreed with trial Court on merits of the petition for impleadment of Muhammad khan, applicant. Both these orders of the Courts below are contended in Constitutional jurisdiction.

3. It was submitted that averments in the petition filed under Order 1, rule 10, Civil Procedure Code did not disclose that the applicant was either a necessary or a proper party to the suit and the Courts below in taking him to be so acted illegally in exercise of discretionary jurisdiction vested in them under Order 1, rule 10, Civil Procedure Code. In support of the contention that the applicant Muhammad Khan could not have been pleaded as a party defendant to the suit either as a necessary or a proper party to it, learned counsel referred to the case of Sanaullah Khan v. Lahore Municipal Corporation, Lahore and another 1979 C L C 891 (Lahore), Fazal Karim and another v. Muhammad Ashiq and 2 others 1983 C L C 212 (Lahore). Close reading of the cases relied upon proceed on distinguishable facts and were not much helpful for deciding of the point requiring decision in the writ petition. Applicant Muhammad Khan was not merely acting pro bono publico. Instead, his own rights were involved in the decision.‑He intended to protect his own rightin of using a street of a certain width passing in front of his house, which was in danger of being allegedly misappropriated to a private use by the plaintiff in the suit. In fact, he alongwith one Khuda Bux had already instituted a civil suit against Muhammad Ashraf owner/resident of House No.48 and the Cantonment Board for a mandatory injunction directing the defendant No. I (Muhammad Ashraf) to stop the illegal construction and to demolish the walls which had been constructed in the street, 12 feet wide, shown in the plan annexed to the suit. Muhammad Ashraf is real father of Zafar 1qbal petitioner who instituted the present suit against the Cantonment Board later on 3‑9‑1990. The suit filed by Subedar Muhammad Khan etc. is pending trial in the Court of Yar Muhammad Wilana, Civil Judge, Rawalpindi. Record of that suit revealed that part of the plaintiffs' evidence had already been recorded and the suit is now adjourned to 8‑4‑1991 for recording of plaintiffs' remaining evidence. As far the suit filed by the petitioner Zafar Iqbal, its stage of proceeding is not known. Upon a prima facie examination of the plaints in the two suits proceeding to trial in Civil Courts, it appears that the controversy in them has close nexus and in that view of the matter, it would have been conductive to a satisfactory decision if both the suits were tried by a common Court, This course would not only have been convenient to the parties but would tend to avoid conflicting decisions also. As the merits of the cases are yet to be examined by the Courts seized of them, I shall say little about them, except that is necessary for deciding of the point raised in the writ petition. In the plaints in the two suits filed by Muhammad Khan etc. against Muhammad Ashraf etc. and Zafar Iqbal v. Cantonment Board to which now Muhammad Khan has been added as defendant N0.2 the dispute or a part of it concerned an alleged street of a stated width, existence of which was asserted by Sub (Rtd.) Muhammad Khan for a common use and denied by Muhammad Ashraf and his son Zafar Iqbal who claimed that it did not exist as such and the Cantonment Board were not authorised to dismantle their existing constructions. In this state of pleadings, it could not have been said that Sub. (Rtd.) Muhammad Khan had no interest in the lis and came forth merely as a pro bono publico. In my opinion he had a clear interest in the litigation and his presence before the Court in the suit filed by War Iqbal was necessary for a final and effective adjudication of the controversy raised in it.

4. It is manifest that initially it is for the Court below to feel satisfied as to whether or not it should exercise its powers under Order I, rule 10 of the Code of Civil Procedure for addition of a party to the suit and where the Court is satisfied that certain person should be added as party to the suit, it would ordinarily not be possible for this Court to interfere with the exercise of such discretion. By no means, it can be maintained that the order relating to the addition of parties is a matter touching upon the jurisdiction of the Court so as to justify an interference under Article 199 of the Constitution muchless, in revisional jurisdiction under section 115 of the Code of Civil Procedure. The provisions of Order I, rule 10, Civil Procedure Code confer a wide expanse of discretion on the trial Court and if the trial Court exercised discretion in favour of an applicant who wishes to be impleaded as party to the pending suit, its discretion will not ordinarily be interfered with unless the impleading of the party ‑resulted in manifest failure of justice or where the Court had illegally or with material irregularity exercised its discretion. In the present case, the order of the trial Court as to its soundness had already earned approval from the revisional Court which by a detailed considered order found that the applicant (Muhammad Khan) was rightly added as a party‑defendant to the suit. Legislature did not provide for a further revision from the order passed by the revisional Court and, therefore it must be deemed to have attained finality subject to its judicial review by this Court in its supervisory jurisdiction. It is well‑known that the question of addition of parties under Order 1, rule 10, Civil Procedure Code, is generally not one of initial jurisdiction of the Court but of a judicial discretion which has to be exercised in view of all the facts and circumstances of a particular case unless the discretion was found to have been exercised unreasonably, it ought not to be interfered with in extraordinary jurisdiction. Having known the limits, scope, ambit and purpose of supervisory jurisdiction of the High Court under Article 199 of the Constitution, I do not feel satisfied that I should interfere with the impugned orders of the Courts below which have merely allowed a party to be joined to a suit filed by his adversary enabling him to defend his rights which in his absence were likely to suffer. As I have said above, the contours of two suits, one filed by Muhammad Khan alongwith Khuda Bux against Muhammad Ashraf and Cantonment Board and the other by Zafar Iqbal against Cantonment Board were somewhat identical and required concurrent trial by a common Court to avert inconvenience to the parties and conflicting decisions in exercise of a suo motu jurisdiction of Court, I shall direct their trial by Mr. Baqir Ali Rana, learned Civil Judge, Rawalpindi to whose Court the case files may be sent expeditiously. H.B.T./Z‑210/L Order accordingly.