MUHAMMAD ANWAR NASEEM vs COMMISSIONER OF INCOME-TAX, GUJRANWALA and another
This civil appeal by leave of the Supreme Court of Pakistan is directed against the judgment of the Federal Service Tribunal, Islamabad, which dismissed the appellant's service appeal on the ground of non-joinder of necessary parties who were likely to be affected. The core legal question was whether the Service Tribunal was justified in non-suiting the appellant purely on technical grounds for failing to implead affected persons. The Supreme Court held that the Tribunal erred in dismissing the appeal on such technical grounds, noting that under section 5(2) of the Service Tribunals Act, the Tribunal possesses the powers of a Civil Court under the Code of Civil Procedure, 1908, and could have exercised powers under Order I, Rules 9 and 10, C.P.C. suo motu to implead necessary parties rather than defeating the suit or appeal. The key principle laid down is that a Service Tribunal should not non-suit a litigant on technical grounds of non-joinder of parties when it has ample powers to direct the joinder of necessary parties itself.
- Whether the Service Tribunal is justified in dismissing an appeal solely on the ground of non-joinder of necessary parties?
- Does the Service Tribunal possess the powers of a Civil Court under the Code of Civil Procedure, 1908 for deciding appeals?
- Can the Service Tribunal exercise suo motu powers under Order I Rules 9 and 10 of the Code of Civil Procedure, 1908 to implead necessary parties?
- Section 5(2), Service Tribunals Act 1973
- Order I Rule 9, Code of Civil Procedure 1908
- Order I Rule 10, Code of Civil Procedure 1908
1. ' SAIDUZZAMAN SIDDIQUI, J.---The above appeal with the leave of this Court is directed against the judgment of Federal Service Tribunal, Islamabad, dated 21-10-1993 whereby the learned Service Tribunal dismissed the appeal of the appellant on the ground that about 18 persons, who were likely to be affected by the judgment of the Service Tribunal, were not impleaded as party to the appeal filed before it. In the grounds of appeal, the appellant took the plea that he had made oral request to the learned Tribunal that the persons who are likely to be affected by the judgment in the case may be impleaded. This assertion is also made in the affidavit sworn in by the appellant before this Court. After hearing the learned counsel for the appellant and learned Deputy Attorney- General, we are of the view that the learned Tribunal was not justified in dismissing the above appeal purely on a technical ground that the persons likely to be affected by the judgment have not been impleaded as party in the appeal especially when a request was orally made to the learned Tribunal to implead those persons in the case. It may be pointed out that by virtue of section 5(2) of the Service Tribunals Act, the Tribunal for the purposes of deciding an appeal is deemed to be a Civil Court and it enjoys all such powers as are vested in such Court under the provisions of the Code of Civil Procedure. Order I, Rule 9, C.P.C. Clearly provides that no suit shall be defeated by reason of the misjoinder or non-joinder of parties, and the Court may in every suit deal with the matter in controversy so far as regards the right and interest of the parties actually before it. Order I, Rule 10 confers vide powers on the Court to substitute or add the persons who ought to have been made parties or may strike out names of parties who should not have been joined in the proceedings. We are, therefore, of the view that even if the appellant had not made any request for joining of other persons as party and the learned Tribunal had reached the conclusion that it is necessary to join other persons as party in the case, it could in exercise of its powers under Order I, Rules 9 and 10, C.P.C. Suo motu order implement of those persons who were necessary to be impleaded in the appeal as party. The learned Tribunal being exclusive Tribunal to decide the disputes relating to the Government servants, should not have non-suited the appellant on such a technical ground. We, accordingly, allow the appeal and set aside the order of the Service Tribunal.
2. The appellant may apply for implement of necessary parties before the Tribunal and after they are joined the appeal may be heard and decided by the Service Tribunal, in accordance with the law.
3. There will, however, be no order as to costs.