' MUHAMMAD JEHANGIR ARSHAD, J.---Through this Constitutional Petition, petitioners assail the order dated 21-2-2006 passed by learned trial Court/Civil Judge Ist Class, Sargodha, whereby their application for becoming party in the suit titled "Mufti Abdul Aziz v. Tehsil Municipal Administration",, was dismissed and also the order dated 21-6-2006 of the learned Additional District Judge, Sargodha dismissing the petitioners' revision against the abovementioned order of the learned trial Court.
2. The facts in brief are that earlier a civil suit titled "Jamia Islamia Trust v. Municipal Corporation, etc." was filed with regard to the disputed property. In the said suit the petitioners moved an application praying that they be joined as defendants in the suit and be allowed to contest it, as the property in dispute was reserved for the public purpose. The said application of the petitioner was allowed by the then learned trial Court namely Civil Judge Ist Class, Sargodha on 3-10-1997.
Against the above mentioned order of the learned trial Court, a civil revision titled "Jamia Islamia.
Trust v. Municipal Corporation, Sargodha" was filed but the same was also dismissed by the learned Additional District Judge on 12-3-2001. After the abovementioned order the said suit was allowed to be dismissed for non-prosecution on 21-6-2004, It appears that after the dismissal of the abovementioned suit, a fresh suit on behalf of Mufti Abdul Aziz claiming himself to be the Chairman of Anjman Jamia Islamia Trust, was filed seeking almost the same relief as was sought in the earlier suit mentioned 'above. In this second suit the petitioners again moved an application with the prayer that they be allowed to defend the suit as defendants but their application was dismissed by the learned trial Court on 21-2-2006 and the revision petition filed against the said order was also dismissed by the learned Additional District Judge on 21-6-2006.
3. It is submitted by learned counsel for the petitioners that in view of the findings of the learned civil Court recorded in the earlier suit on 3-10-1997 holding the petitioners as necessary party, there was no justification left with the learned trial Court to dismiss their application in the subsequent suit which was in fact got filed by the respondents to obtain uncontested decree in respect of the property reserved for public purpose. It is further argued that the learned trial Court in the impugned order dated 21-2-2006 dismissed petitioners' application on the short ground that as earlier in some suit filed by the petitioners their plaint was rejected under Order VII Rule 11, C.P.C, therefore, they could not be impleaded as party, notwithstanding the fact that rejection of plaint was no bar for the petitioners to defend the suit filed with regard to the property reserved for public purpose and the fact as to whether the property was rightly allotted to the respondent Trust or it was reserved for the public purpose could only be determined after recording of evidence. Further argued that the learned revisional Court in its order dated 21-6-2006 on the one hand dismissed the revision petition of the petitioners but on the other hand allowed the petitioners to join proceedings before the Commission to prove that the property in dispute, was reserved for public purpose, whereas, without properly impleading the petitioners as defendants, they could neither join proceedings before the Commission nor could produce evidence or raise objections against the report of the. Commission if the same was not favourable to them, therefore, according to the learned counsel the petitioners should have been impleaded as defendants to contest the suit of the respondents.
4. On the other hand, learned counsel for the respondents has argued that in fact the petitioners are guilty of concealment of facts, inasmuch as, they have not mentioned the filing of the suit and rejection of plaint of the said suit, therefore, they could not be impleaded as party in the suit as held in PLJ 2003 Lahore 1942(sic). Further contends that the rejection of plaint in the suit filed by them would lead to a presumption that the property in dispute ' was properly allotted to the contesting respondents and that petitioners had no right to challenge the same as the contesting respondents were seeking relief against Municipal Administration only therefore, the petitioners being strangers to the dispute could not be impleaded as party and their prayer was rightly dismissed firstly by the learned trial Court and consequently by the learned revisional Court.
5. I have considered the arguments of learned counsel for the parties and perused the record.
6. I am afraid that contention of learned counsel for the respondents that rejection of plaint in some earlier suit filed by the petitioner and its non-mentioning in the subsequent suit would either amount to concealment of fact or disentitle them to seek the relief through the subsequent suit after dismissal of the first suit for non-prosecution .In respect of the same subject-matter. It is an established principle of law that rejection of plaint is no bar for filing a fresh plaint in view of expressed provisions of Order VII Rule 13, C.P.C., therefore, non-mentioning of rejection of plaint of the earlier suit by the petitioners, cannot be considered as concealment of fact nor the same has any material bearing on the issue. Moreover, admittedly the plaint of the petitioner was rejected for non-compliance of provisions of section 92, C.P.C. And not on merits. Earlier the findings recorded by the learned civil Court in suit titled "Jaihia Islamia v. Municipal Corporation, etc" holding the petitioner as necessary party and rejection of revision by the learned Additional District. Judge and afterwards dismissal of the said suit for nonprosecution is indicative of the fact that second suit was filed by respondent Mufti Abdul Aziz in his personal capacity although claiming some right On behalf of some Trust, for the purpose of obtaining an ex parte or uncontested decree with regard to the property which according to the petitioners was reserved for public purpose. The reasoning given by the learned trial. Court for non-suiting the petitioners is not only highly improbable but also against the provisions of law. When after rejection of plaint a fresh plaint can be filed how the suit could not be contested. Similarly the learned Additional District Judge allowed the petitioners to join the proceedings before the Commission without their being party to the suit. All the above facts when read together led to an irresistible conclusion that in order to determine the exact nature of the property i.e, whether the same was reserved for public purpose and could be allotted to the private respondents for any other purpose, the presence Of the petitioners before the learned trial Court in the array of defendants was essential and the two Courts below acted illegally and with material irregularity by throwing down their request. This writ petition, resultantly, is allowed and after declaring the orders of the learned trial Court as well as of the learned revisional Court mentioned above, as without lawful authority, the petitioners are allowed to be impleaded as defendants in the said suit. The learned trial Court would, therefore, direct Mufti Abdul Aziz plaintiff/respondent to file amended plaint after impleading the petitioners as defendants and then to proceed with the trial of the suit in accordance with law.