Thursday, 30 October 2014

Writ Petition under Article 199 against Order I Rule 10 Application

PLJ 1998 Lahore 1011
[Bahawalpur Bench]
W.P. No. 5506/97, dismissed on 13-11-1997.
Constitution of Pakistan, 1973--
-v-Art. 199--Writ Petition~O. 1 R. 10 of Civil Procedure Code, 1908-Party to suit-Impleading    of-Application    for-Acceptance    of~Challenge    to-- Impugned orders neither appear to suffer from any infirmity or perversity nor can be taken to be fanciful perfunctory or laconic any way- Neither any aspect has been pointed out nor high-lighted to show, or indicate that orders sought to be impeached and set at naught, suffer from any lacuna, which may have effect of rendering it to be withoutlawful authority and of no legal effect and significance-Not a single error liable to be corrected through judicial review has been hinted at~Rather finding of fact embracing and encompassing all aspects is neither exceptionable nor challengeable before High Court in constitutional petition—Petition dismissed in limine.        [Pp. 1012 & 1013] A
Malik Muhammad Aslam, Advocate for Petitioner.
Date of hearing: 13-11-1997.
2.                      Claiming to be owner in possession of 439 Kanals of land in Chak No. 42/DB, on the plea of having purchased it in open auction a suit for the
__ grant of a declaratory decree with perpetual and mandatoiy injunctions as  consequential relief, stands instituted by Muhammad Yaqoob petitioner.
3.   Such assertion has duly been controverted and traversed by his   adversary.
4.                        During the course of proceedings thereof, respondent No. 5 namely Maqbool Ahmad moved an application under Order 1 rule 10 C.P.C. for impleading him as party on the pleas that he had been selected as tenant in respect of piece of 100 kanals of land, forming the subject matter of "dispute", he is cultivating possession thereof since 1978; seeking ownership rights with regard thereto and disclosing that the petitioner has resorted to  this action after having made a vain attempt through a suit filed by his son namely Muhammad Khalid.
5.   It was allowed vide an order dated 21.6.1997 which, was assailed before learned Additional District Judge, Bahawalpur through a revision petition on the ground that learned Trial Court had not properly appreciated the facts of the case and illegally exercised its jurisdiction. Same, however. met the fate of dismissal on 6.10.1997.
6.       Such   orders   have   been   called   in   question   in   instant Constitutional Petition on the grounds enumerated in paragraph No. 10thereof.
7.           Reiterating the same, learned counsel representing the petitioner has endeavoured to argue that impugned orders dated  21.6.1997 and6.10.1997 passed by learned Senior Civil Judge and learned Addit onal District Judge, Bahawalpur respectively are absolutely void, illegal and liable to be set aside; that the learned Additional District Judge proceeded to pass the order with undue haste without summoning/requisitioning the record and that claim of respondent No. 5 is absolutely shaky. Reliance has been placed on Tariq Mahmood vs. Muhammad Saleem Qureshi, Addl. District Judge, Rawalpindi and 6 others (1992 C.L.C. 1432) (Lahore), Pakistan Banking-Council and another vs. Ali Muhammad Naqvi and others (1985 S.C.M.R. 714), Ahmad Din vs. Muhammad Bashir and 6 others (N.L.R. 1992 Civil 250) and Altaf Parekh vs. Delments Construction Company (1992 C.L.C. 700) to canvass that respondent No. 5 was wrongly impleaded as he is neither necessary nor proper party.
8.           When judged on the touch-stone and in perspective of true scope of powers vested in Court in this regard, as laid down in galaxy of rulings, few of which, stand quoted and referred to above, respondent No. 5 turns out and emerges to be at least "proper party" in wake of his possession over a considerable piece of suit land for the last about two decades, his claim of seeking title and proprietory rights with regard thereto and in lambasting the claim of petitioner, so as to lead to complete and effectual adjudication of the matters in controversy.
9.           No doubt, it is equally well.settled, that a plaintiff is "dominus litis" and ordinarily no person should be added as party against his wishes, yet, nothing is suggestive of any departure there-from or likelihood of causing any prejudice to him. Seemingly position in instant case is converse and rather otherwise not only to avoid multiplicity of proceedings, but also, involvement of parties into vortex of litigation.
10.   Be that as it may, Writ petition is liable to be disposed of from entirely a different angle as well. Impugned orders neither appear to suffer from any infirmity or perversity nor can be taken to be fanciful, perfunctory  or laconic any way.

11.    Neither^iny aspect has been pointed out nor high-lighted to show, or indicate that the orders sought to be impeached and set at naught, suffer from any lacuna, which, may have the effect of rendering it to be without lawful authority and of no legal effect and significance. In short, not a single error, liable to be corrected through judicial review has been hinted at. Rather finding of fact embracing and encompassing all aspects is neither exceptionable nor challengable before this Court in Constitutional Petition as expounded in plethora of authorities on the point.
12.  Viewed from any angle, Writ Petition merits out-right dismissaland is hereby dismissed in liminc.
«K.A.B.)                                                            Petition dismissed in limine.

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