2006 PLP 1498 (CLC)

MUHAMMAD MUZAMMAL KHAN, J.

Instant constitutional petition assailed revisional judgment/order, dated 5-5-2005 passed by the learned Additional District Judge, Lahore, to be declared illegal, void and of no legal consequence, whereby names of the petitioners were not allowed to be added to the array of the defendants to the suit by respondent No. 1.

2. Succinctly, relevant facts are that respondent No.1 filed a suit for declaration with permanent injunction as consequential relief to the effect that show-cause notice, dated 20-8-2003 issued by the L.D.A. Authorities is illegal, mala fide, discriminatory, ultra vires/against the constitutional guarantees and the other respondents may be restrained through a decree for permanent injunction from interfering into its lawful business of School, by any means, whatsoever.

3. Respondents Nos.2 to 4 being defendants in the suit contested The same and pending it petitioners riled an application under Order I, rule 10, C.P.C. praying their impleadment as defendants to the suit on the grounds that they are neighbourers of the suit property where respondent No.1 was running its School, being a lawful owner in possession of House No.56, Block-L, Gulberg III, Lahore, and that on their complaint the show-cause notice, dated 20-8-2003 under challenge in suit, was issued by the L.D.A. Authorities, hence, they were necessary/proper parties. They had also pleaded that they being close neighbourers have a right to stop respondent No 1. from contravening the law which acknowledged their this right requiring issuance of NOC by them.

4. The learned Civil Judge who was seized of the matter after getting reply to the application by the petitioners, from the parties to the suit, accepted the same vide his order dated 26-1-2005 allowing the petitioners to become party as defendants and required the respondent No.1 to file an amended plaint.

5. Respondent, No.1 being aggrieved of impleadment of the petitioners filed a revision petition before the learned Additional District Judge, who accepted the revision petition, set aside the order of impleadment by the trial Court and dismissed the application of the petitioners under Order I, rule 10, C.P.C. vide his revisional order, dated 5-5-2005. The petitioners, thereafter, filed instant constitutional petition, with the relief noted above and respondents in response to notice by this Court have appeared and are represented through their counsel.

6. I have heard the learned counsel for the parties and have examined the record, appended herewith. The judgment/order by the learned Additional District Judge revealed that it without properly comprehending the controversy, refused impleadment to the petitioners. Suit by respondent No.1 was not for commercialization of property rather it had challenged a show-cause notice issued to the respondent No.1 for committing violation of provisions of sections 17, 35, 38 and 40 of L.D.A. Act, 1975. The show-cause notice impugned before the Civil Court was issued on complaint of the petitioners who are owners in possession of the neighbouring House No.56, Block-L, Gulberg-III, Lahore. Building Regulation No.96(4) of the L.D.A. Building Regulations, 1984 acknowledged right of neighbourers/owner of adjoining properties for conversion of residential premises into commercial use. The petitioners who had not issued any NOC to respondent No.1, had a right to resist conversion of residential property .for its use as a School on the ground of interference in their comfort/enjoyment of utility of their own property. The learned counsel for the petitioners submitted that petitioners, being movers of complaint against respondent No.1 may not be necessary parties, but by all meams were proper parties as they were to facilitate the just/fair decision of the suit. Even otherwise, petitioners have a vested right to protect their property and their comfort from invasion from the activities creating discomfort/inconvenience for them and for this purpose their presence before the Court was necessary. Above all, the petitioners were impleaded as defendants by the trial Court which had not prejudiced any of the rights of respondent No.1 or its suit and as against it, there was a probability of ensuring injury to the petitioners in case they are not impleaded as party to the suit.

7. The learned trial Judge after taking into account all the aspects of the case and after ,anxious consideration had allowed impleadment of the petitioners to the suit and in this exercise no illegality/irregularity had been committed, in absence of which respondent No.6 could not have intervened under section 115, C.P.C.

8. For the reasons noted above, judgment/order, dated 5-5-2005 passed by respondent No.6 is not sustainable being illegal/void and opposed to canons known for administration of justice, in this behalf, consequently, by accepting instant petition the same is declared to be void, illegal and non-existent in the eye of law, with the result that order, dated 26-1-2005 by the learned Civil Judge stands revived and will hold the field. There will be no order as to costs. F.B./F-10/L???????????????????????????????????????????????????????????????????????????????????????? Petition allowed.