Judgment in a case under Cantonments Act, 1925

PLJ 1991 Lahore 476

[Rawalpindi Bench]

Present: GUL ZARIN KIANI, J ZAFAR IQBAL-Petitioner

Versus

CANTONMENT BOARD, RAWALPINDI, and another-Respondents

Writ Petition No.342 of 1991, dismissed on 3.4.1991.

Civil Procedure Code, 1908 (V of 1908)-

—O.I, R.10-Intervenor--Impleadment of--Challenge to—In two suits, one filed by petitioner and other by respondent No.2, dispute or a part of it related to street existence of which was asserted by latter for a common use and denied by former-It could not have been said that respondent No.2 had no interest in Us and came forward merely as aprobono pdblico—Order impleading respondent No.2 having earned approval of revisional court, must be deemed to have attained finality subject to its judicial review-Held: No interference is needed with impugned orders 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. [P.478&479]A&B

Sardar Asmatullah Khan, Advocate for Petitioner.

Date of hearing: 1.4.1991.

ORDER

Petition under Article 199 of the Constitution is against a revisipnal 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.

Petitioner owns a house in village Topi. Cantonment Board, Rawalpindi issued a notice under Section 185 of the Cantonments Act, 1925 for dismantling of some alleged illegal constructions. Part of it is seen to have already been 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, petitioner 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 I, 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 right/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 the 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.

It was submitted that averments in the petition filed under Order I, Rule 10 CSvfl Procedure Code did not disclose that the applicant was either a necessary or a proper party to the suit and the Courts below hi taking him to be so acted illegally in exercise of discretionary jurisdiction vested hi them under Order I, Rule 10 Civil Procedure Code. In support of the contention that the applicant Muhammad Khan could not have been impleaded as a party-defendant to the suit, either as a necessary or a proper party to it, learned counsel referred to the cases of StmeaSafi Khan versus Lahore Municipal Corporation, Lahore and another— 1979 C.L.C. 891 (Lahore), Fazal Karim and another versusMuhammad Ashiq and 2 others—1983 C1.C. 272 (Lahore). Close reading of the cases relied upon are found to 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 probono publico. Instead, his own rights were involved in the decision. He intended to protect his own right 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.l (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 Iqbal petitioner who instituted the present suit against theCantonment Board later on 3.9.1990. The suit filed by Subedar Muhammad Khan etc. is proceeding to trial in the Court of Yar Muhammad Wilana, Civil Judge, Rawalpindi. Record of that suit revealed that part of the plaintiffs' evidence has already been recorded and the suit is now adjourned to 8.4.1991 for recording plaintiffs' remaining evidence. As far the suit fded by the petitioner Zafar Iqbal, its stage of procceeding is not known. Upon a prima fade examination of the plaints in the two suits proceeding to trial in different Courts, it appears that the controversy in them has close nexus and in that view of the matter, it would have been conducive to a satisfactory decision if both the suits were tried by a commonCourt. 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 where 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 versus Cantonment Board to which now Muhammad Khan has been added as defendant No.2, the dispute or a part of it concerned aa alleged street of a stated width, existence of which was asserted by Sub. (Rtd.) Mohammad Khan for a common use and denied by Muhammad Ashraf and his son ZaEar 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 l*****"^ it could not have been said that Sub. (Rtd.) Muhammad Khan had no interest in the Us and came forth merely as a probono publico. In my opinion, he had a dear interest hi the litigation and his presence before the Court in the safe filed by Zafar Iqbal was necessary for a final and effective adjudication of the controversy raised in it. 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, much less, in revisory jursidiction 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 a party to the pending suit, its discretion will notordinarily be interfered with unless the impleading of the party resulted in mainfest 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 I, 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 and 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 for 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 Bakhsh 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, therefore in exercise ofsuo-motu jurisdiction of this Court, I shall direct their trial by Mr.Baqir Ah' Rana, learned Civil Judge, Rawalpindi to whose Court the case files may be sent expeditiously.

(MBC)                             (Approved for reporting)             Petition dismissed.