ANWAR ZAHEER JAMALI, J.--- C.M.A. No,350 of 2004, an application under Order I, rule 10(2), C.P.C., has been moved by intervenor "Shehri: C.B.E." with the prayer that they may be joined as respondent in this appeal.
2. In brief case of the applicant/intervenor is that it is an NGO (non-governmental organization) actively engaged in protecting the natural and built environment, preventing misuse of land and opposing buildings being constructed contrary to the notified development scheme and building laws and without regard to adverse environmental considerations. In the context of present appeal, which arises out of impugned order, dated 24-11-2003 passed in Suit No,1320 of 2001 by learned Single Judge of this Court, intervenor have unfolded the details of relevant facts justifying their claim, according to them, to be joined as respondent in this appeal. Application is also accompanied with several documents including some orders/judgments passed by this Court in various proceedings, highlighting the role of itnervenor as an NGO in the field of pursuing the cause of better environment for the citizen of Karachi.
3. On behalf of the appellant counter-affidavit has been filed by Mr. Muhammad Naseem, strongly opposing the prayer of the intervenor to be joined as party to this appeal, more particularly with reference to the impugned order and the controversy set to be resolved by this Court in the present appeal.
4. In the affidavit-in-rejoinder submitted on behalf of the applicant/ intervenor, by one of its members of managing committee, reference has been made regarding moving of application C.M.A. No,3936 of 2003 (application under Order I, rule 10(2), C.P.C.) in July, 2003, to be joined as party to the suit (Suit No,11320 of 2001) to show that it is not for the first time at the appellate stage that the applicant/ intervenor are keen to be joined as party to these proceedings but they are also pursuing the same cause in the suit.
5. Ms. Rizwana Ismail learned counsel for the applicant/ intervenor has narrated in detail, not only the relevant facts regarding the pendency of Suit No,1320 of 2001 before learned Single Judge of this Court but also pendency of other litigations in respect of the same property, which is subject- matter of this suit and regarding which show-cause notice has been issued by respondent and impugned by the appellant by filing of the present suit. She further made reference to pending Constitutional Petition No,1490 of 2001 and other suit relating to the same subject-matter, which are being vigorously pursued by the intervenor. She contended that the application under Order I, rule 10(2), C.P.C. filed by the intervenor in Suit No,1320 of 2001 in July, 2003 was ultimately argued before the learned Single Judge in the month of March, 2005, but since then orders are reserved on this application to the prejudice of the interest of intervenor as in case the application had been allowed there was no necessity for the intervenor to move another application before this Court for being joined as party in this appeal and even in case the said application had been dismissed by the learned Single Judge it would have enabled the intervenor to follow further remedy against such order. Learned counsel made reference to the judgments/orders of this Court in C.P. No,D- 1970 of 1998 dated 19-3-1999, order, dated 12-3-1999 in Suit No,869 of 1997, order, dated 26-10-1999 in Suit No,648 of 1999, order, dated 29-9-2000 in Suit No,1079 of 2000, order dated 26-5-2000 in Suit No,1655 of 1999 and order dated 26-9-1996 in Suit No,341 of 1996 to show that role of intervenor as NGO, actively engaged in fighting for the cause of providing better environment for the citizens of Karachi has been recognized, rather appreciated by this Court, therefore, invariably their request for being joined as party to litigation, involving issues relating to raising of unauthorized construction, change of use of plot or involving any other activities relating to environment hazard has been accepted by this Court. Lastly making reference to the impugned order vis-a-vis locus standi of the intervenor to be joined as party to these proceedings, she contended that by impugned order not only the application under Order XXXIX, rule 2(3) read with section 94 and Order I, rule 10, C.P.C. moved by the appellant against the respondents has been disposed of with the directions that the proceedings in the suit should be expedited in the terms specified in the order, but the appellant has been restrained from raising any construction over the subject plot and also from selling or alienating any portion thereof or creating any third party interest therein. In such circumstances any variation in the impugned order may be detrimental to the cause of the intervenor/NGO.
6. Mr. Mushtaq A. Memon learned counsel for the appellant has strongly opposed the grant of listed application. He has contended that the locus standi of the intervenor for being joined as party to this appeal is to be judged with reference to the nature of the impugned order the controversy to be decided in this appeal. While plain reading of the impugned order shows that from no stretch of imagination any interest of the intervenor is involved in the fate of this appeal. Learned counsel made reference to the judgment of this Court in the case of Hussain v. Mansoor Ali and 5 others PLD 1977 Kar. 8 to highlight the scope of Order. I, rule 10, C.P.C. for joining intervenor as party to this suit. He also made reference to the case of Uzin Export Import Enterprises for Foreign Trade Karachi v. Union Bank of Middle East Ltd. Karachi and another PLD 1994 SC 95 to add force to his submission that the intervenor NGO is neither necessary nor proper party to this suit. Mr. Mushtaq A. Memon also made reference to the case of A. Razzak Adamjee and another v. Messrs Datari Construction Company (Pvt.) Limited and another 2005 SCM R 142 and contended that some distinction is to be drawn in the cases of public and private nuisance as visualized by the apex Court in this judgment and every person/NGO should not be allowed to be joined as party to the proceedings which will serve no other purpose but to multiply the litigation and complicate the issues involved therein.
During the course of his argument learned counsel made detailed reference to the facts of Suit No,1320 of 2001 and the controversy regarding challenging of show-cause notice issued by respondent therein. He also made reference of other pending litigations in respect of same property launched by the intervenor and contended that the grievance agitated by the intervenor against the appellant in respect of disputed property; subject-matter of litigation in those proceedings, is to be decided there (in the constitutional petition and the suit), therefore, joining them as party to the present appeal or the suit will amount to permitting them to pursue parallel proceedings in respect of same dispute which is not permissible by law. He, therefore, urged that the listed application be dismissed with costs.
7. We have given our anxious thought to the arguments advanced by the learned counsel, carefully perused the material placed on record and various orders and judgments cited by them at the bar in support of their respective contentions. The material placed on record by Ms. Rizwana Ismail in the form of various orders of this Court, referred above, granting application of the intervenor to be joined as party to the proceedings are indicative of the fact that the role of the intervenor as an NGO actively involved in fighting for the cause of providing better environment for the citizens of Karachi has been, prima facie, well-accepted by this Court. In the case of Messrs Yarntex Trading Company and others v. Chief Controller of Buildings and others, a learned Single Judge of this Court while examining the role of applicant/intervenor in the context of pursuing the cause of better environment in the Karachi City has gone to the extent of making observations, which read as under:-- "The obliging stand taken by the defendants Nos,1 to 3 has left me look for assistance else where. I am informed that one nongovernmental organization namely "Shehri" has the requisite technical know-how to assess compliance with Building Ratio Standards. The above-named NGO is actively engaged in crusade against illegal construction activities in the city of Karachi. Likewise, Pakistan Engineering Council, too, is expected to come forward and extend professional and technical assistance in this behalf. The two bodies namely, Pakistan Engineering Council Shehri are called upon to independently depute an Architect each to examine the proposed construction on the subject plot and report if it tends to violate the notified Building Ratio Standard. The two Organizations shall be paid a token fee of Rs,5,000 each to be shared equally and deposited with Nazir of this Court within one week hereof by the plaintiffs and defendant No,6."
8. It is interesting to note that these observations were made by none else but Mr. Mushtaq A.
Memon, J. (as he then was), who is now strongly opposing the listed application. In another case, Suit No,648 of 1999 vide his order, dated 26-10-1999 again an application under Order I, rule 10(2), C.P.C. was granted by the same Honourable Judge of this Court (as he then was) by squarely placing his reliance upon the following observation from the case of Altaf Parekh v. Delments Construction Company 1992 CLC 700:--- "It appears from the above cases that the expression "questions involved in the suit" in Order I, rule 10(2), C.P.C. has reference to only those questions which arise between the parties to the suit. It may, however, be necessary, in order to effectually and completely determine all such questions to consider points or material which have not been raised or brought before the Court by the parties to the suit but by third parties; and in that case the person who raises such points or bring such material before the Court as is relevant from determining the question involved in the suit is a proper party and may be impleaded as such. Such points or material, however, should not be such as will extend the scope of the controversy between the parties or add a new cause of action unconnected with the original cause of action."
9. In another elaborate judgment on the scope of Order I, rule 10(2), C.P.C., delivered by the Honourable Supreme Court of Pakistan it the case of Uzin Export Import Enterprises (supra) his Lordship in the Supreme Court Mr. Justice Saeeduzzaman Siddiqui (as he then was) has observed as under:-- "Sub-rule (2) of rule 10, C.P.C. which is relevant in the present case deals with the powers of the.
Court to strike off the names of the parties improperly joined in the suit either as defendant or plaintiff. This rule also authorises the Court to order for adding the name of any other party either as plaintiff or defendant in the suit who ought to have been joined in the proceeding or whose presence is felt by the Court as necessary to settle and adjudicate all questions involved in the suit, completely and effectually. The power can be exercised by the Court either on its own motion or on the application of either party to the proceedings. A careful reading of sub-rule (2) (ibid), will show that power to add parties to the suit can be exercised by the Court in two cases: Firstly, the Court may order joinder of a party in a suit either as a defendant or plaintiff, if it reaches the conclusion that a party who ought to have been joined as a party in the proceedings is not before it. The other case in which the Court may direct joinder of a party in the suit as plaintiff or defendant is, where the Court finds that the presence of that party will facilitate the Court to decide effectually and finally all questions arising in the suit. In the first case, the joinder is of a necessary party to the suit while in the latter case the party added to the proceedings is only a proper party. Failure to implead a necessary party is always fatal to the proceedings while it may not be so in the other case and the Court may proceed to determine the matter in controversy between the parties before it. It is, therefore, not at all necessary that some relief must have been claimed in the suit against the party which is joined in the proceedings as a proper party. The primary object of impleading a proper party in the suit is to avoid multiplicity of legal proceedings and to determine effectually and finally applicant questions arising in the proceedings."
10. In another case of Pakistan Banking Council and another v. Ali Mohtaram Naqvi and others 1985 SCM R 714, the provisions of Order I, rule 10(2), C.P.C. were discussed by the Honourable Supreme Court as under:-- "It is needless to reiterate the true scope of powers vested in the Court for adding parties to a pending suit under Order I, rule 10(2) of the Code of Civil Procedure. It is now well-settled that under the provision two classes of persons, namely, necessary parties and proper parties can be joined.
The former consists of persons who ought to have been joined as parties and the latter of persons without whose presence the questions in the suit cannot be completely and effectually adjudicated upon. If a person does not fall in either of these two classes, that is to say, he is neither a necessary nor a proper party, then the Court has no jurisdiction to add him as a party under this sub-rule. This is why the Court is called upon not to drag any parties in the array of the suit to suffer the rigours of a trial unnecessarily. It must be further pointed out that the question of addition of parties under this rule is generally not one of initial jurisdiction of the Court, but of judicial discretion which has to be exercised in view of the facts and circumstances of a particular case."
11 Reverting to the facts of the present case, it will be seen that it is an admitted position that the intervenor have been pursuing two other proceedings in the form of one constitutional petition and one suit against the appellant in respect of substantially the same controversy regarding alleged change of use of plot by the appellant. Thus, it is obvious that they have justification to place their appearance before other forums also where in one form or the other same dispute has been agitated by the appellant. The submission of Mr. Memon that since only issuance of show-cause notice by respondents has been challenged in Suit No,1320 of 2001, therefore, the intervenor are neither necessary nor proper party to the suit or this appeal has also no force as it is appellant's own case that certain people are instrumental in managing the issuance of such impugned show- cause notice against the appellant. The indication from all this is towards none else but the intervenor.
12. Moreover, while deciding the fate of listed application under Order I, rule 10(2), C.P.C., this Court cannot remain oblivious of the fact that the intervenor have also moved similar application under Order I, rule 10(2), C.P.C. in Suit No,1320 of 2001 as back as in July, 2003, of which earlier notice was taken by this Court in the present appeal in terms of the order, dated 23-2-2005, which reads as under:-- "23-2-2005 Mushtaq A. Memon, Advocate. Ms. Rizwana Ismail, Advocate.
(1) This is an application under Order I, rule 10(2), C.P.C. filed by Shehri CBE, applicant/intervenor for impleading them as one of the parties in the proceedings. It is informed by the learned counsel that similar application has been moved the intervenor in Suit No,1320 of 2001 out of which this appeal arises.
Ms. Rizwana submitted that first this application be decided so that in the event the same is allowed, she may have a right of audience and placing the evidence on record. Mr. Mushtaque Memon, submitted that the intervenor has already moved application before the trial Court and at this stage this application cannot be entertained as they are not necessary party.
However, in the interest of justice, we are of the view that an opportunity be afforded to the trial Court to decide the similar application pending before it within prescribed time. In the circumstances we direct the learned Single Judge to take up C.M.A. No,3936 of 2003 in Suit No,1320 of 2001 on 3-3-2005 on which date the learned counsel for the parties have agreed to take steps to get the application decided within a period of 12 to 20 days. It is however, made clear to the learned counsel that in case said application is not decided at the original side within the prescribed time the present application would be decided by this Court on its own merits.
Adjourned. To come up after 20 days.
(2) Notice."
13. We have been told by the parties' counsel present in Court that arguments on the said application C.M.A. No,3936 of 2003 were heard by the learned Single Judge in the month of March, 2005 and orders were reserved which are unfortunately, still awaited. By now it is one of the well- settled principles of administration of justice that no party should be made to suffer due to any mistake or act or omission of the Court. In the instant case had the learned Single Judge cared to decide the pending application under Order I, rule 10(2), C.P.C. moved by the intervenor in the suit, and if such application had been allowed there would not have been any necessity for the intervenor to repeat another application of similar nature in the present appeal. Even in case the said application would have been dismissed by the learned Single Judge at least it could have afforded an opportunity to the intervenor to follow his further remedy in accordance with law for that purpose.
14. Joining of intervenor as proper party to this appeal seems to be further justified for the reason that by impugned order the learned Single Judge has not only given a timeframe for disposal of the main suit, but at the same time the appellant has been restrained for raising any construction on the subject plot or its sell alienation or creation of third party interest therein. In such circumstances when admittedly the inetervenor are resisting raising of construction over the plot in dispute, till the issue of change of use of the plot is resolved by the Court, they seem to be justified in approaching this Court to be joined as party to this appeal. The ratio of two judgments of the Honourable Supreme Court in the cases Uzin Export Import Enterprises (supra) and Pakistan Banking Council (supra) also lend full support to the claim of the intervenor to be joined as party to the present appeal as in our view the intervenor may not be necessary party to the suit but definitely a proper party whose presence would enable and help this Court to adjudicate the relevant questions completely, effectively and in a more comprehensive manner.
15. Foregoing are the reasons for our short order passed on 3-2-2006.