Syed AHMED SAEED KIRMANI vs PUNJAB PROVINCE AND OTHER

ORDER

M. S. H. QURESHI, J.-All these applications are for impleadment under Order 1, rule 10 of the Code of Civil Procedure. The first one was filed by Mr. Muhammad Bashir Kayani, an Advocate of Rawalpindi Bar for his impleadment as a respondent ; the second by the Mayor of the Municipal Corporation, Multan, the third by the District Bar Association. Multan, through its President Mirza Manzoor Ahmad and the fourth by (i) the High Court Bar Association, Bahawalpur, through its General Secretary, (ii)

Mr Zahoor-ul-Hassan Khan, its President, and (i.e) Sh. Hakim Ali, its General Secretary, for impleadment as parties. In his replies to these applications, the petitioner has opposed them on the ground that their impleadment "is not necessary as the Court can effectually and completely adjudicate upon and settle all the questions involved in the main petition. . . . . . . . "

2. During the hearing, none appeared for the applicants in Civil Misc. Nos. 2 and 3 of 1981.

3. It appears from the averments in the application that the applicants would oppose the writ petition. Their case, therefore, can only be for impleadment as respondents. Under Order 1, rule 10 (2), C. P. C. The Court may at any stage of the proceedings order that "the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added. 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 but whose presence is necessary for a complete and final decision of the question involved in the proceeding.

As held in! Commonwealth Trust Co. v. Smith (266 U S 152).- "A person is a necessary party to a suit if he has such an interest in the matter in controversy that it cannot be determined without either affecting that interest or leaving the interest of those who are before the Court in a situation that might be embarrassing and inconsistent with equity."

According to another case from the U. S. Jurisdiction, i.e. Shields et al v. Barrow (15 Law Ed. 158)

"Persons having rights which must be affected by the decree cannot be dispensed with". The point had also been considered by the Supreme Court in Abdul Wali Khan's case (P 1. D 1975 SC 463) wherein it had been observed "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 term questions involved includes 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.

Inn generic sense, every decision of the 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 proceedings before this Court, merely because it is likely to affect him in some future proceedings."

There is enough case-law on the subject and all spell out the same principle as summed up the Supreme Court as above.

4. Mr. Bashir Ahmad Ansari appearing for the applicant in Civil Misc. I of 1981, referred to PLD 1969 SC 223, PLD 1973 Lah. 580. PLD 1977 Lah. 852 and PLD 1978 Lah. 273, but in all these cases the point for consideration was as to who could be called "an aggrieved party" for the purpose of maintaining a writ petition. It was not explained as to how the concept of an "aggrieved party" would ipso facto apply to a party for the purposes of Order I, rule 10, C. P. C. No case law was cited in that regard. We are not convinced that the principle on which a person can be considered to be an "aggrieved party" for the purpose of maintaining a writ petition would also govern the question of impleadment as a respondent in a writ petition. The words of Order I, rule 10, C. P. C.1 as already reproduced, clearly spell out the conditions upon the fulfillment of which a party can be impleaded.

But they are not necessarily' the conditions required of a party for enabling it to maintain a writ petition. As applicant for impleadment as a respondent has to satisfy the Court that his impleadment is necessary for an effectual and complete adjudication of all the questions involved in the case. Learned counsel also referred to PLD 1978 Lah. 1156, which was a writ petition against the order of the Additional District Judge, who, exercising his revisional power, had allowed impleadment of a party as defendant. The writ petition had been dismissed in limine upon the view that the Court has jurisdiction to add as defendant if it is shown that the decree will affect or curtail the enjoyment of a legal right of the intervener and in order to prevent unnecessary multiplicity of litigation. There can be no disagreeing with that view. Sh. Hakim Ali, appearing for the applicants in Civil Misc. Of 1981, referred to PLD 1975 Lah. 544 but that case, too, was on the question as to who is a person aggrieved for the purpose of invoking the writ jurisdiction. He next referred to PLD 1970 Lah. 760 which was a writ petition brought by the improvement Trust. Rawalpindi, challenging the order of Government modifying its sanction earlier accorded to the acquisition of certain evacuee land by the Trust and excluding some area which had later been transferred. In these circumstances, it was held that the transferees of the excluded area had acquired valuable property rights and were bound to be adversely affected in the event of the success of the petition and as such the petition could not proceed in their absence. This authority is not attracted because their right to tangible property had been acquired by parties who would consequently be directly affected by a decision allowing the writ petition.

5. Mr. Ahmad Saeed Kirmani opposed the applications on the ground that the applicants were neither an "aggrieved party" nor could the points raised in the writ petition be effectually and completely adjudicated upon without them.

6. The writ petition before us questions the validity of a particular law and as such the makers of that law are the necessary party. The question whether every person who may be generally benefited by that law has also to be impleaded is now one requiring a decision. The answer is to be found in the latter paragraph of the Supreme Court's observation, in Abdul Wali Khan's case already reproduced above. It is not possible to implead every one who has been conferred certain advantage by a particular law in a general way which benefit may be lost if the law be struck down for lack of validity. For, otherwise there will be no end of parties. In any case, it cannot be said that the decision on the writ petition cannot be effectually and completely given in the absence of the applicants. The applications are therefore, dismissed.