' Respondents Nos.1 to 14/plaintiffs filed suit for possession against respondents Nos.15 and 16 in the Court of learned Civil Judge/Illaqa Qazi, Swat. Before respondents Nos.15 and 16/defendants could file their written statement, they moved an application under Order VII, rule 10, C.P.C. On 7-5-2003 for return of the plaint due to lack of jurisdiction of the Court. It was, however, on 17-6-2003 that Messrs Muhammad Afzal Khan and Muhammad Alam Khan, petitioners filed an application for their impleadment in the suit. The said application was allowed by the learned trial Court and they were directed to be impleaded as defendants vide judgment/order dated 8-1-2004. Respondents Nos.1 to 14 filed appeal in the Court of learned Additional District Judge/Izafi Zilla Qazi, Swat, which was allowed. The impugned judgment/order was set aside vide judgment/order dated 16-3-2004.
Being not contented with the judgment/order passed by the learned Appellate Court, petitioners have filed revision petition in hand.
2. Mian Iqbal Hussain, Advocate the learned counsel representing the petitioners argued that the petitioners had purchased a portion of the suit property through Mutation No,126 attested on 18-3- 2003 and Mutation No,129 attested on 15-4-2003. The said mutations were given effect in the Jamabandi for the year 1997-98 and the petitioners have been shown as co-owners in the suit property. Since respondents Nos.1 to 14/plaintiffs had filed suit for possession, therefore, co-owners were necessary parties as held by august Supreme Court of Pakistan in 1999 SCM R 348, PLD 1973 SC 214 and 1995 CLC 1566
3. On the other hand Haji Abdur Raziq Khan, Advocate the learned counsel for respondents Nos.1 to 14/plaintiffs argued that the impugned judgment/order passed by the learned Appellate Court was proper and legal because it was incumbent upon the trial Court to decide the question of jurisdiction first and if the Court comes to conclusion that it has jurisdiction in the matter, then other applications can be entertained and decided. Reliance in this regard was placed on the following authorities 1991 SCM R 1944.
4. It was also argued that respondents Nos.15 and 16 had filed an application on 7-5-2003 under Order VII, rule 10, C.P.C., wherein they had raised the question of jurisdiction of the learned trial Court. The said application required disposal first and then the other application could be addressed.
5. I have heard the learned counsel for the parties and perused the record..
6. The argument of the learned counsel for respondents Nos.1 to 14/plaintiffs that the learned trial Court was obliged to decide the question of jurisdiction first has a force in it. It is by now settled law that when a challenge is thrown about Courts' jurisdiction, then it is incumbent on the Court to decide such question first in the first instance before proceeding further on merits and where the Court comes to conclusion that it has no jurisdiction in the matter, then it must abstain to proceed any further and embark on the merits of the case. Wisdom in this regard is gained from the following authorities:--
(1) Raja Khurshid Ali v. Dr. Abdul Malik 1991 SCM R 1944;
(2) Miss Rukhsana Ijaz v. Secretary, Education Punjab and others 1997 SCM R 167;
(3) Javed Hussain Shah v. Government of Punjab and others 1998 SCM R 220
(4) Asadullah Rashid v. Haji Muhammad Munir and others 1998 SCM R 2129.
7. Keeping in view the dicta laid down in the afore-quoted judgments by august Supreme Court of Pakistan it was incumbent upon the learned trial Court to decide the question of jurisdiction first.
Neither the learned trial Court nor the Appellate Court appreciated this legal aspect of the case. It should have directed the learned trial Court to decide the question of jurisdiction first and for that should have remanded the case back to the learned trial Court with the clear direction to decide the question of its jurisdiction first and then to take up the application for impleadment, filed by the petitioners. The Courts below have, therefore, committed material irregularity. I, therefore, accept this revision petition, set aside and impugned judgment/order passed by the Courts below. The application filed by the petitioners for their impleadment shall be deemed to be pending before the learned trial Court, who shall first decide the application filed by respondents Nos.15 and 16/defendants on 7-5-2003 for return of plaint under Order VII, rule 10, C.P.C. And if it reaches to the conclusion that it has the jurisdiction in the matter then in that case the application filed by the petitioners for their impleadment on 17-6-2003 be decided afresh strictly in accordance with law within a period of three months. The learned trial Court, however, shall not be influenced with the observations made by the learned Appellate Court while deciding the appeal. Office is directed to remit the record back to the Court concerned within a week positively. There shall, however, be no order as to costs.