P L J 1983 Qoetta 36
Before : ABDUL QADEER CHAUDHARY & MuFTAKHfRUD DIN, JJ
CHAMBER OF COMMERCE Balauchistan, Quetta and 2 Others—Respondents
Constitutional Petition No. 91 of 1982 decided on 7-7-1982
(i) Writ Jurisdiction—
— Questions of fact—Findings on—Interference in- Held : High Court in exercise of Constitutional jurisdiction not to give any positive finding unless facts constituting cause of action be admitted by other side—Held further; Disputed questions of fact not to be entered into writ jurisdiction as (only) appropriate tribunal to b^oompetent to examine record and take evidence on disputed facts in order to reach definite conclusion—Constitution of Pakistan, 1973—Art. 199. [P. 45 ] A
(Ii) Writ of Quo Warrtnto—
------ Issuance of—Consideration for—-Conduct of party—Relavancy of— Held : Writ of quo warranto being not writ of omirse to proceed on demand of justice and on consideration of conduct of petitioner and material on record—Constitution of Pakistan. 1973—Art. 199 (i) (b) (Ii). [P. 41 ] A
P L J 1982 SC 244 ; P L J 1974 SC 97 ; P L D 1957 Kar. 387 ; P L D 1970 Dae. 508 A P L D 1963 SC 203 (at 206) ref,
------ Alternate remedy—Availability of—Held : Alternate remedy in casa befng available and even some members of Chamber of Commerce having already approached Arbitration Tribunal constituted for purposes of deciding validity or propriety of any act or proceeding like one challenged in case writ petition not to be competent—Constitution of Pakistan 1973—Art. 199. [Pp. 42 & 45 ] B & D
P L D 1958 S.C. 437 ; AIR 1953 Nag. 81 & A I R 1954 Bom. 116 ref.
(iii) Writ Jurisdiction—
------ Necessary parties—Non-impleadment of—Effect of—Petitioner challeng ing tofer a//a constitution of Managing Committee holding elections of Chamber but not impleading all other office bearers and members of Committee as party to petitions—Held: Any adverse decision against Managing Committee to amount so decision ex pane without affording it opportunity of being heard—Held further : No relief to be granted against such party (not represented in High Court) and petition as such to sufferfor non-joinder of necessary party—Constitution of Pakistan, 1973— Art. 199. [P. 46]£&G
P L D 1964 Kar. 450 ; P L D 1958 Lab. 721 & A I R 1954 Pat. 225 ref
. <IT) Ciril Procedure Code (V of 1908)—
------ O. I, R'9—Non-joinder of necessary party—Effect of—Held : No suitto be dismissed for non-joinder of necessary party in case effective relief » can be given without impleading such party. [P. 46 ] F
P L D 1963 Lah. 983 ref. Mr. Basharatullah, Advocate for Appellant. Mr. Ehianul Hague, Advocate for Respondent No. 2 Mr. Muhammad Moquim Ansari.Advocate for Respondent No. 3. Date of hearing : 7-7-1982.
Abdul Qadeer Chaudhary. J.—By our short order dated 7-7-1982, we had dismissed the petition. We now record the reasons in support of our short order.
The respondent No. I is incorporated and registered under the provisions of section 26 of (he Companies Act, and as per its memorandum has for its objects, the promotion and protection of the economic interests of those engaged in industry The respondent No. 1 as per its Artie-'? of Association his five classes of members including the associated members; and fhe offices of the President, Senior Vice President and Junior Vice President So be filled in by election. It also provides for the election of the Executive Committee.
. The Fedual Government to provide for the regulation and control of trade organization has enacted Trade Organizations Ordinance (XLV of 1961 dated 2-12-1961) (hereinafter referred to as Ordinance) and has appointed she respondent No. 3 as the Director under section 2 (4) thereof. The elections for the term 198J-S2 were held by the respondent No. 1 & respondent No. 2 has been elected as President of the- Chamber of Commerce afier she election of 13 memb.ers of she Executive Committee. The Senoir Vice President and Junior Vice President havr also been elected in the said election. A represeniatian as requited under sec'ion 9 (e) of theOrdinance was preferred by the petiiioner on 1-12-1981, but (his representation was not attended 10 by respondent No. 3 and no action was taken. The petiiioner has alleged that the Executive Committee is unlawful!^ constituted coiitrary to the Article of Association ; the respondent No. 3 icfused to decide the representation filed by the petitioner. In such circumstances the petiiioner has no other effective and speedy remedy available 'o him against the respondents.
The pensioner has claimed the following reliefs in this petition :
"(a) That the decision as contained in Seller dated 3-1-1982 (Annex. D) may be declared to have been made without lawful au'hority and be set aside,
(b) the respondent No, 3 be directed to decide the pending represen-M'ion within she time appointed by this
Hon'ble Court and or,
U") (hat she constitution of the Executive Committee of the Respondent No. i, the election of the respondent No. 2 and the office bearer be declared to have been conducted and finalised illegally,
(d) Respondent No, 1 be directed to constitute the Executive-Committee lawfully, in accordance with its Articles of Association, and io nominate and elect the rightfully eligible persons to its offices."
The petition has been contested by the respondents.
A preliminary objection was taken, that the petitioner is not an "aggrieved person". The petitioner has claimed
alternate reliefs in the present petition. Relief A and B is in the nature of mandamus. The porwer of mandamus invests the High Court to order a person performing 'he functions in connection with the affairs ofthe Centre, a province or a local auihoriiy to do something that he is required by law to do, if fhe law provides no other adequate remedy and the party who moves the High Court for such a relief is an aggrieved person. The petitioner has not contested the election. He had not raised any objection against the candidature of any person during the course of the election. He did not even challenge at the time of election that Managing Committee or the electoral college was no* properly constituted. So he is not aa aggrieved person. It is held in Muhammad Abdus Sal am v. Chairman, East Pakistan Election Authonty etc. (Pl.D 1965 Dacca 231) :— iwo
"The words 'aggrieved party" or "person do not really means a man who is disappointed of a benefit which he might have received if some ether order had been made, A "person aggrieved" must be a man who has suffered a legal grievance, a man against whom a decision has been pronounced which has wrongfully deprived him or someihinfi, or wrongfully refused him something, or wrongfully affected this liile to something."
In Commissioner of Income Tax. Bombay Presidency and Aden and others v. Bombay Trust Corporation Ltd. (A.I.R. 1936 Privy Council 269) it has been observed :-—
"Before mandamus can issue to a public servant it must therefore be shown that a duty towards the applicant has been imposed upon the public servant by statute so that he can be charged thereon, and independently of any duty which as servant he may owe to the Crown, his principal."
in Masudul Hassan v. Khadlm Hassain and another (PLD 1963 S.C. 203) it has been said :—
"(a) The principles applicable to issue of a writ of mandamus ate briefly :
(0 "an applicant for an order of mandamus must show that there resides in him a legal right to the performance of a legal duty by the party against whom th emandamus is sought :
(//) In order that a mandamus may issue to compel something to be .done under a statute, it must be shown that the statute imposed a legal duty ;
(///) it is only in respect of a legal right that mandamus wii! issue ;
(tv) the legal right to enforce the performance of a du:y must be in the applicant himself. The Court will therefore only eniorce the performance of statutory duly by public bodies on the application of a person who can. show that he has hi'mself a legal right to insist on such performance."
It was held that the interest of (be petiiioner was at the best of an indirect nature. Merely as a member of the Town Committee, there did not reside in him a legal right to demand that the Collector should remove another member."
Confronted with this situation, the learned counsel for the petitioner has to concede that the petitioner is not an aggrieved person. He however submitted that the petitioner has claimed relief against the respondent No.) and 2 in terms of Article 199 (I) (/>)(//) of the Consii.tuucn. Article 9 (I) (b) (ii) of the Provisional Constitution Order 1981) and such ad application car. be moved by any person and it is no' necessar> that such application should be made by an aggrieved person. This Article reads as under :—
"Requiring a person within the territorial jurisdiction of the Court holding or purporting to hold a public office to show under what authority of law he claims to hold that office."
As such the petitioner can move application for such relief and a writ of quo-warronto can be issued against the respondent. ft is held in Muhammad AMbar v. Dr. Khan Sahib, Chief Minister of
West Pakistan (P L D 1957-itaracbi 387) as under :—
"The rule that no person may invoke the court's aid in respect of a wrongful act of a public nature not affecting prejudicially the real and specia! interest or a specific legal right of the relator is true only so far as the issue of writs of (mandamus and certiarari is concerned. In respect of writ quo warranto Ihere is no such res'riction and a member of ihe public may challenge a public act of the State provided he does not do so mala fide as an instrument of oihers."
All that is necessary in a case of a private petitioner is that he should have some interest in (he election which he impeaches.
The issue of a writ of quo warranto is discretionary with the Court. A private refator couid maimain an application for a writ of quo warranto to challenging the validiiy of appointments on public grounds." :
The question than arises whether the respondent No. 2 is ho'ding a public office ? Public office has not been defined any where, but it has been interpreted in Munshl Abdul Jabbar A. oihers v. The Barisal Municipal Committee Barisal (P L D 1970 Dacca 508) as under :—
"ft is well-settled that a writ of mandamus is not available with regard to ihe restoration of each and every public office. This contention is sound and in accordance with ihe practice followed in the courts of England as well as in this country a writ of mandamus has never been issued for the restoration of an office of employees of Municipal Com-mitt'-e. In order to obtain a writ of mandamus for the restoration of an office it has to be clearly established that the office ts either a cons-litu! tonal POST SPECIFIED Iff THE Constitution or any other post which is statutory in nature and carries statutory rights and obligations.'"
In Masu'dul Hassan v. Khadlm Hussain and another (P L D 1963 S.C. 203) at page 206 the following observation is relevant :—
"It was necessary for ihe issue of rhe writ that the office should be one created by
, by charter or by statute, and that the duty should be of a public nature. It was necessary also that the respondents should be in possession of ihe office." ihe State
In Prem's Civil Practice the following observation has been made in 2nd Edition Volume 7 page 4805 :—
"To make the office a public office, the pay must come out of national and not out of local funds, and ihe office must be public in the strict sense of that term. It is not enough that the due discharge of the duties of ihe office should be lor ihe public benefit in a secondary and remote sense. (1891) i.Q.B. 594 (596, 597) E."
This question arose before the Supreme Court in Mohd Ibrahim Siddiqui v. Thai Industries Corporation Ltd and another (PU 1974 S.C. 97) but this quesiian was not replied to and it was un-decided, as the petition wa, decided on other points. The learned counsel for the petitioner has invited our attention to ths judgment of the Supreme Court reported in Sultan Afawji & 3 o'hers \. Federation of Pakistan Chambers of Commerce & Industry, Karachi & 3 others (PLJ 1982 S.C. 244) it was held thai :—
"There is also no force in the contention that since appellant No. 3 did not challenge thprejection of his nomination paper, the other appellants had no locus siandi to file the petition. The petition in substance was a petition in the nature of quo warranto and appellants 1 to 3, bad even otherwise, sufficient interest in the controversy brought before the Court."
Respectfully following the Supreme Court observation we hold that the present petition is maintainable. But the writ of quo warranto is not a writ of course and it is proceeded on demand of justice. The court has to consider the conduct of the petitioner and then on the material on record would decide if a petitioner is entitled to such relief.
The respondents have taken the objection that 'he petition is not maintainable because the petitioner has not availed of the alternate remedy available to him under section 12 of the Ordinance by approaching the Arbitration Tribunal constituted for the purpose of deciding the validity or propriety of any act or proceeding. The learned counsel for the petitioner has submitted that no Arbitration tribunal has been constituted, therefore, the extraordinary remedy to the petitioner is open. Malik Umar Hayat Secretary Chamber of Commerce has filed affidavit that arbitration tribunal has been constituted on 15-12-1981. A copy of the minutes of the meeting has also been filed. The minutes show that the arbitration tribunal has been constituted to consider the application of Mohd Akbar Jaffar in respect of the election dispute. The petitioner in reply to this affidavit has filed an application accompanied by two telex messages received by Mr. Akbar Jafifai from the Secretary General of the Federation of Pakistan Chambers of the Commerce and Industry. These telex messages support the contention of the respondent that the arbitration tribunal has been constituted. The message dated 4-7-82 reads, "the tribunal did not proceed because the Federation have to understand that the case was already tub-judlce and the Director of Trade Organization was also seized of the matter." In the second message sent by Haji Umar Karim, it is stated that the President of the Chamber was un-seated by the orders of the Supreme Court dated 27-1-82. and presently Managing Committee has empowered him to act as President and tribunal constituted on 15-12-1981 has not issued notices to ihe panics and it is not fonctioning at the moment. The Supreme Court in Sultan Mawji A 3 others v. Federation of Pakistan Chambers of Commerce and Industry, Karachi and 3 others (PLJ 1982 S.C. 244) referred to above, in para, 22 of the judgment has made the followingobservations :—
"For the forgoing reasons, the appeal is allowed and the impugned directive of the D-rector of Trade Organizations, dated 24-6-81, is declared to be without lawful authority and of no legal effect. The resuit wiil be that the proceedings of the election of the President of the Federation of Pakistan, Chambers of Commerce and Industry, Karachi, for the years 1981-82 shall be continued and be completed in accordance with the law from the stage these were interrupted by the impugned directive of the Director, Trade Organizations."
The Supreme Court considered the direction made by the Director Trade Organization. The office of the President of the Chambers of Commerce was in dispute and the election of Managing Committee or constitution of Arbitration Council was not challenged. The judgment of the Supreme Court has not set aside the constitution of Arbitration Council. The pstitioner did not move the Arbitration Council; though •ome of the members bad already filed application before the Arbitration council.
The result would be that Arbitration Tribunal has been constituted and the matter is before it. But it could not decide the matter in view of the fact that the petitioner had approached the Director of Trade Organization and civil suits have also been filed by some members. The petition ers's counsel hasreferred toMiss AvIJ. Coma, v. Banwarilal Agarwat and others (A I R 1953 Nagpur 81). Wherein it is stated as under :—
"The fact that there is an alternative remedy does not take away the jurisdiction of the High Court under Art. 226; but none of the remedies provided by that Article is as of right. The High Court will exercise the power when ordinary remedy which exists is not realy effective and the High Court may issue a writ of quo warrantc where the alleged intrusion is patent.
But in the same case the following observation has been made : —
"Before granting a writ of quo warranto it is necessary to sec that the relator is a fit person to be entrusted wish this writ. The court will not listen to a candidate who has acquiesced or perhaps concurred in the very act which he afterwards comes to complain of when it suits his purpose. It will not issue a writ of quo warranto at the instance of the candidate for an election who did not object to the nomination of another candidate for the same constituency at the propertime."
In the Tariq Transport Co.
v. The Sargodha-Bus Service Lahore . (2) The Regional Transport Authority and (3) The Provincial Transport Authority, Sargodha (P L D 1958 S.C. 437) it is held .— Lahore
"Where a statue creates a right and also provides a machinery for the enforcement of that right, the party complaining of a breach of the statute must first avail himself of the remedy provided by the statute for such breach before he applies for a writ or an order in the nature of a writ.
It is wrong on principle to entertain petitions for writs, except in very exceptional circumstances, when the law provides a remedy by appeal to another Tribunal fully competent to award the requisite relief. Any indulgence to the contrary is calculated to create distrust in statutory reflection on their honesty and competency and thus to defeat legislative intent."
It is observed in Bhairulal Chunilal, v. Stale of Bombay (AIR 1954 Bombay 1^6) :— "It is well settled that where there are statutory provisions dealingwith the conduct.of an election the writ of quo warranto is displaced. An election then can only be challenged in the manner laid down by
The alternate remedy was available to the petiion:r but he did no: *javail of the same. The petition is incompetent.
There is another formidable objection that the petitioner has approached the Director of Trade Organization under section 9 of the Ordinance. The learned counsel for the petitioner has submitted that the respondent No. 3 has not disposed of his application and therefore, he has to file the writ petition. Under section 9 (e) of the Ordinance within 30 days of the announcement of the results of any election the Director may with the approval of the Central Government annul the election. It is contended that as the respondent No. 3 has not disposed of the application moved by the petitioner, the petitioner bad no other remedy but to seek adirection from this court. The learned counsel for the respondent No. 3 submitted that the application moved by the petitioner- has been disposed of by means of order dated 3rd January, 1982. It is stated that some member of Quetta Chamber have filed civil suits in the civil courts and election petition has also been filed before the arbitration tribunal, therefore, no action can be taken by the Federal Government at this stage. It is thus clear that the respondent Ho. 3 had disposed of the application moved by the petitioner. It is also pertinent to point out that some of the members have also filed civil suits in the civil courts. Civil suit was filed in the court of Civil Judge by 10 members of Chamber of Commerce seeking declaration that defendants are conducting election in the year 1981-82 in clear violation of the mandatory provisions of Article of Association. The application for interim injunction was rejected by the Civil Judge on 4-11-81 on the ground that the court has no jurisdiction and the suit is not maintainable which was also dismissed. An appeal against that order was filed before the District Judge ; thereafter, another suit was filed in the Court of Senior Civil Judge by same persons claiming the same relief, and in para 10/16 of the plaint, it has been stated that in compliance of the order of Civil Judge Quetta dated 4-11-81 the plaintiff filed suit under section 12 of the Trade Organization before the Arbitration Tribunal and the Registrar of the Tribunal returned it back on 16-11-81 informing the plaintiff that the tribunal is not authorised to issue any injunction as such the bar levied under section 32 of the Ordinance is over. This suit was dismissed on 21-11-81 by the Civil Judge. It was held that she psalter was still subjudfce befose the Arbitration Tribunal therefore, the suit was not maintainable. Appeal against that order was also filed before the learned District Judge but it has not been stated whether these appeals have been disposed of or not ? It is contended by the learned counsel for the petitioner that the suits had been filed before the holding of 'he election, therefore, the respondent No. 3 was not justified in stating that the matters were subjvdm- Wore the Civil Court as the application to the respondeat No. 3 had been made after the election had been held. The perusai of the case would indicate that the present pet'tion is a link in the same chain or civil suits filed by Mohd Akbar Jaffar. Even though the civil suit was filed before holding of the elections, but the declaration wft$ sought against the respondents No. 1 and 2 on the same facts which have been agitated io this pett'tion. Some of the members of Federation have filed the civil suit on the same cause of action. They chose a fomm according to tb«ir own. will inSpite of the fact that they knew there is jurisdictions] defect. The director has lo decide the matter within 30 days and he has no power to decide the matter beyond 30 days therefore, the matter was already disposed of. In these circumstances, the respondent No. 3 passed ihe order (Annex). In substance the representation moved by the petitioner has been disposed of by the respondent No. 3 and now the matter is pending before the Arbitration Tribunal.
The learned counsel for the petitioner has stated that the present petition is otherwise competent as the elections of the office bearers have been held in violation of the Articles of Association of the Chamber of Commecee and Industry Quetta. In respect of (his contention he referred to the following facts :—
"That the relevant clauses of the Articles of Association are pointed out to the extent those relate to the cause of action in this petition.
(/) Articles 8, 9 and 10 recognise the groups of Members to be called as Ordinary Members and Associated Members.
(ii) Article 27—The Executive Committee shall consist of 30 members in all. Since presently there arc only two classes of members, viz. Members and Associate Members,its strength is 24. Article 36 p-iovides for such seats to remain unfilled.
(lil) Article 18 provides for the offices of the President, Senior Vice President, a Junior Vice President to be elected from within the total strength of the Committee ; Specifying further in Article (2) that each class of Member shall elect only such member of the representatives as is fixed for them on the Committee.
Article 28(5) (//)—President, Senior Vice President and Junior Vice President, shall be eligible to be elected for three consecutiveterms. ^Article 28(5) one third of the representatives belonging to each cla^s shall retire, on voting through ballot, every year and shall be those who have completed three consecutive terms of office on the Committee.
Article 28 (5) (v)—provides for election of the office bearers by the Executive Committee, constituted as a whole i.e. consisting of 24 members and not otherwise.
Article 28 (5) (vlf)—makes provision hat a retiring representative shai! not be eligible to stand for election for the next
annual terms. iwo
Article 33 (c)—Provides for cessation of membership in case of failure to attend the meetings.
Article 36—Programme for election to bt • uwn up before 31st Ju!y every year. That the Executive .Committee of the Chamber of Commerce, Baluchistan onits inception in the year 1973, was constituted of 24 Members, but thereartcr l/3rd of its Membrrs were never retired by ballot as so necessary. Under Article 28(5)(Hi) of the Articles of Association. Such retirement was always directed at the option of the President, the Respondent No. 1. In the later years though the Members of the Executive Committee were retired after every three years, but those were not retired in accordance with the Articles of Association. Accordingly in the year 1980, the Central Government, in the exercise of authority under the Trade Organisations Ordinance of 1961, dissolved the Executive Committee of the Chamber of Commerce, Baluchistan and the election of its office bearers and directed that the Executive Committee may be constituted afresh by election and then the office bearers, elected.
Pursuance to such decision—the directions of the Central Government nomination papers for the filling of the 24 seats of the Executive Committee of the Respondent No. 1 were invited and submitted. However, the named scrutinisers rejected the nomi- nation papers of three candidates. Accordingly election for 21 members only was conducted ; and the said number was elected as the members of the Executive Committee of the Chamber. This Executive Committee of 21 Members continued to function uptill 30th June, 1981."
The respondents No. 1 and 2 have disputed these facts. It is. stated that the affairs of the Chamber since 1973 were done in accordance with the Article of Association. It is denied that the retirement was always at the option of the President. It is also denied that for the subsequent years the members were not retired in accordance with Article of Association. It is admitted that in the year 1979-80 the Executive Committee of the respondent No. 1 was dissolved. This was done on account of certain amendments made in the Article of Association which were not lapproved by the Ministry with the result that Executive Committee was disso ved (and fresh elections were ordered by the Director Trade Organization. 21 members of the Committee were elected. For tht reason that out of 24 candidates the nomination papers of 3 candidates were rejected, only 9 members who had completed 3 consecutive terms as the members of the executive committee had to be retired and 3 vacant seats which could be filled during the previous election were also declared vacant. Membership of one of the Executive Committee namely Sadhu Ram was declared vacant as he did not attend three executive meetings. In the result nomination papers for 13 seats were invited. It is also denied that respondent No. 2 was not eligible to contest the election. It has been stated that election of the respondent No. 2 as well as the other 12 members of the Executive Committee were properly and legally held and the office bearers were elected in accordance with Articles of Association. As the facts stated by the petitioner in the petition have been disputed by the respondents No. 1 and 2 and it has been specifically stated that the. elections have been held in accordance with Article of Association ; it it difficult for us to hold without proper inquiry and investigation that the elections have been held in violation of the Article of Association. In view of the disputed facts we cannot give any positive finding unless the facts which constitute the cause of action are admitted by the othflT side. It is not easy for us to hold that the elections have been held in violation of C Article of Association, In writ jurisdiction we do not • enter into diputed questions of facts and it is for the appropriate tribunal to examine the record and take the evidence on disputed facts in order to reach a definite conclusion. In view of the above facts we are not in a position to say that the elections have been void ab-lnilio.
As an alternative remedy is available to the petitioner and in fact somei msmbers have already approached the Arbitration Tribunal, therefore, thep present petition is not competent,
The term of office bearers of ihe respondent No. 1 has expired on 31st July, 1982, and, therefore, any relief if granted by ibis court would be for a short period. But the learned counsel for the petitioner has submitted that the Managing Committee has to conduct the election and a committee which was not legally constituted would be holding the elections. It it therefore, contended that the relief claimed by the petitioner goes to the root of the matter. The answar to this question rests on the determination of the factual controversy. We have already refrained to decide the factual controversy, Thte question cannot be resolved unless the proper inquiry;s conducted here is also force in the objection raised by she respondent that the jctition is not competent as the petitioner has not impicaded ail the other Dffice bearers and the members of Managing Committee as a party to the present petition, "*"be petition suffers from non-joinder of necessary parties. The learned counsel for the petitioner has referred to Shah Muhammad Umair v. Ram Charan Singh and others (AIR 1954 Patna 225). It has been observed as -'der : —
"The failure to join as respondents any candidate, who were duly nominated but who had withdrawn their candidature does not entail the dismissal of the petition on that ground alone. Such persons should be made parties to the petition although the failure to make them parties does not entail dismissal of the petition. The non-comp1*ance with the section is a men. .-regularity."
In Ch. Jnayatullak and others v, W.P. Government and others (PLD 1963 Lahore 98) it has been held :—
"No suit can be defeated by reason of the misjoinder of non-joinder of parties."
It has been observed in Muhammad Nazlruddin v. Rehabilitation Commissioner,
and others (PLD 1964 Karachi 450) as under :— Hyderabad
"At best on the finding of the writ petition the contesting respondents could be considered to be proper parties in the subject matter, in dispuie. We are, satisfied that on this view, of the matter, the conduct of the appellant in not impleading respondents Nos. 3 to 7 as parties to the writ petition was not based on any ulterior motive "
It has been held in Maqbool Ellahi andothers v. Khan Abdul Rehman Khan and others (PLD 1958 Lahore 721) that :—
"Petitions for writs do not stand on so much formality, even in regular suits a plea which does not take the opposite party by surprise or alter the cause of action is permissible and variation between the pleading and what is actually proved has always been held to be immaterial.'"
No suit can be dismissed if an effective relief can be granted to the plaintiff/petitioner without impleading the necessary party. In the present Fcase the main context, is about the constitution of Managing Committee who on its turn elected the office bearers of the Federation. One of the grievances of the petitioner is that the Committee which held the election was not properly constituted. But the petitioner has not made the mem-Oof the Managing Commiftee as a parly to the present petition so that the bers of Managing Committee as a party to the present petition so that the members of Managing Committee may be able to contest the petition. Therefore, an adverse decision against, the Managing Committee would amount to a decision ex parte without affording it an opportunity of being heard. In my opinion the present petition suffers for non-joinder of necessary party and in the absence of such a parly no relief cars be granted to the petitioner. The learned counsel for the petitioner then submitted that he may be allowed !o implead the members of Managing Committee and the other office bearers in ihe present petition, but as the petition has been disposed of on other points it would be an exercise in futility.
The upshoi of the above discussion is lhat the petition has no force, the same stands dismissed with no order as to costs.
(TQM) Petition dismissed