This order will dispose of C.M. Nos. 1305 to 1310 and 1317 of 2008 in Writ Petition No. 6468 of 2008 and C.M. Nos. 1311 to 1316 and 1318 of 2008 in Writ Petition No. 6469 of 2008,'under Order I, Rule 10, C.P.C, with the prayer that, the applicants may be impleaded as respondents in both the writ petitioners.
2. Mr. Iqbal Haider, Advocate, for Mehr ZafarIqbal (appellant in.C.M. No. 1309 of 2008) submits that, the applicant being proposer of Mian Nawaz Sharif is a necessary party to be impleaded in the writ petition for the reason that, if any adverse order is passed against Mian Nawaz Sharif, the applicant his being proposer is going to be affected by that order. He being the representative of, a political party proposed the name of his leader Mian Nawaz Sharif and wants to join the present writ petition to watch his interest being a political worker, thusJag may be impleadedas necessary a party. Further submits that under Section 12 of the Representation of the People Act, 1976, any elector of a constituency can propose or second the name of any person duly qualified to be a member for that constituency, therefore, if nominating papers of respondent, No. 1 are rejected, it will materially affect the rights of the applicant who has proposed respondent No. 1 in exercise of his said right. Further submits that by nominating the name of Mian Nawaz Sharif the applicant has given his consent to be governed by a person of his choice, which right cannot be denied and snatched away by rejecting the nomination of the candidate proposed by him. Referring case-law of Muhammad Boota v. Muhammad Ali (1980 CLC 135) and The Jetpur Memon Association v. Mst.
Zubeda Begum and 9 others (1981 CLC 1245), it is argued that the authority to add or delete any party in a suit should be exercised judicially. Further submits that inconvenience would be. Caused to the Court if the applicant is not impleaded as a party. Referring the case-law Mian Muhammad Nawaz Sharif v.. President of Pakistan and others (PLD 1993 S.C. 473) learned counsel argued that, Article 17,of.The Constitution of Islamic Republic of Pakistan, 1973, guarantees fundamental right to form or be a member of a political party, therefore, it js the fundamental right of the applicant to have a Leader of his own choice to represent him in the National as well as in the Provincial Assembly. Further submits that by the passage of time, circumstances and. Environment has changed and the Court while deciding such application should see that the order passed in this regard should meet the requirement of the changing time.
3. Mr. A.K.. Dogar, Advocate/applicanf submits that, even in the absence of the concerned and necessary party, it is the duty of the Court, to decide the case in accordance with law; that it is not a case under Civil. Procedure Code, but a case under Constitution of Islamic Republic of Pakistan, 1973. Further submits that it is a fundamental right of every citizen of the county to have candidate of his own choice to be elected and to represent him in the Majlis-e-Shoora (Parliament), National Assembly or Provincial Assembly. Further submits that his application is not based on the mala fide intention to delay the proceedings or to cause obstructions but is a step to proceed with bona fide intention of having access to political justice. Further submits that the applicant being a lawyer is more concerned, whenever there is violation of Constitution of Islamic Republic of Pakistan.
Reference to made to the cases of Al-Jehad Trust through Raeesul Mujahideen Habib- ul-Wahab- ul-Khairi and others v. Federation of Pakistan and others (CPLD 1996 S.C. 324) and Darshan Masih alias Rehmatory and others v. The State (CPLD 1990 S.C. 513).He further submits that since respondent No. 1 has opted not to appear and defend the writ petitions filed against him, he (the applicant) being a member of legal fraternity has come forward to address this Court on a very important matter. Further submits that in a case where fundamental right of a person in jeopardy,' it is the duty of the Court, in vpublic interest litigation, to allow the applicant to be impleaded as respondent to assist the Court and not by applying the principle of Order I, Rule 10, O.PX. Governing the impleadment of a person as a respondent or defendant in a lis. Further submits that.It is the duty of the Court to help the litigant to achieve his right of access to the justice. Further suomits that procedure and rules only regulate the proceedings of the Court whereas Constitution provides full protection to the fundamental rights of citizens. Further submits that right to join any proceedings cannot be denied to the citizens. A citizen can have access to the justice under the protection given by Article 4 of the Constitution. Further submissions that political justice is included in the fundamental right and an individual has a right to come to the Court and join any proceedings to protect his political right of choosing any person as his Leader.
3. Mr. Muhammad Akram Sheikh, Advocate, in C.M. Nos. 1305 and 1308 of 2008 in Writ Petition No. 6468 of 2008 and C.M. Nos. 1311 and 1315 of 2008 in Writ Petition No. 6469 of 2008, submits that, the applicantsthough not directly but would be affected indirectly by the decision of this Court, thus, are necessary and proper parties to be impleaded as respondents in this case to defend the case of respondent No. 1. Further submits that any of the person, who is likely to be affected can come to the Court and request to be impleaded as a party, It is a political right of every voter to object the process of election. He has placed reliance to the cases of Chairman Regional Transport Authority, Rawalpindi v. Pakistan Mutual Insurance Company Limited, Rawalpindi (P.L.D. 1991 S.C. 14) and Salah-ud-Din and 2 others v. Frontier Sugar Mills and Distillery Limited and 10 others (P.L.D. 1975 S.C.
244).
4. The learned Advocate-General, Punjab supported the case of the applicants by arguing that, the case of Nawaz Sharif is not a case of an ordinary person. All those, who had moved the applications, we going to be effected by one way or the other, thus, are necessary party to the impleaded as respondents in this writ petition to defend the case of the head of their party.
6. Kh. Mahmood Ahmad, Advocate/applicant has adopted the arguments advanced on behalf of other' applicants and stated that if Mian Muhammad Nawaz Sharif would be elected, then applicant would get benefit from him, so he is aggrieved party.
7. Conversely, learned counsel for therespondent/writ petitioner vehemently opposed the applications and argued that, the elections are governed by special laws and provisions of general laws are not applicable to its proceedings. Election Schedule was announced, nomination papers were submitted, objections to the same were invited and under Section 14 of the Representation of the People Act, 1976, scrutiny of the papers was conducted by the Returning Officer. As per subsection (5) of Section 14 of the Act, the contesting candidate or any other person may file appeal against the order of Returning Officer, It is only respondent No. 1, who is the necessary and proper party as per sub-section (5) of Section14 of the Act of 1976. Further submits that, Section 54 ibid clearly mentioned the persons to be impleaded as a party in the election petition. By applying the analogy of the provisions of Section 54 ibid., the parties, in appeal, against order of acceptance or rejection of nomination would be the same, as provided in Section 54 of the Representation of the People Act, 1976. Also argued that, applications have been filed with mala fide intention to appear and defend the case of respondent No. 1, who despite service had chosen not to appear in the Court. According to the learned counsel, moving of these applications is a devise to prolong the proceedings of the writ petition.
8. We have heard the arguments of the learned counsel for the parties and perused the record.
9. The question for determination before this Full Bench is who are the necessary and paper parties to be impleaded in a writ petition out of an election matter.
10. All the applications are for impleadment under Order I, rule 10, CP.C. It appears from th averments in the applications that, the applicants intended to appear on behalf of respondent No. 1to oppose the writ petition and for this reason, they have prayed to be impleded as respondents.
Under Order I, Rule 10(2), C.P.C., the Court may, at any stage of the proceedings order that, the name of any person, who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary, in order to enable the Court to effectually and completely, adjudicate upon and settle all the questions involved in the suit, be added. A party can be impleaded only, if it is a necessary or proper party. Reliance is placed on the case of Dr. Salee Javed and others v. Mst. Fauzia Nasim and others (2003 S.C.M.R. 965), The Bakkarmandi Union (Regd.), Lahore v. Metropolitan Corporation/LMC through Mayor and 4 others (2000 S.C.M.R. 1716), Mst.' Rani and another v. Mst. Razia Sultana (1994 S.C.M.R. 2268) and Ghulam Muhammad and another v. Mehtab Beg and others (1983 S.C.M.R. 849). A necessary party is one without whom no order can be made effectively, while the proper party is one, in whose absence an effective order can be made but whose presence is necessary for a complete and final decision of the question involved in the proceedings ,A person in a necessary party to a lis if he has such an interest in the matter in controversy that it cannot be determined without either affecting that interest or leaving the interest of those who are before the Court in a situation that may be embarrassing and inconsistent with equity. This point has already been considered in Islamic Republic of Pakistan v.
Abdul Wali Khan (P.L.D. 1975 S.C. 463), an authority relied upon by both the parties, wherein it had been observed as under:- "Now a proper party is a party whose presence before the Court is necessary to enable the Court to effectually and completely adjudicate upon and settle all questions involved in the proceedings.
The term questions involved include all matters, material to a proper decision of the case but the object of making such persons parties is to prevent multiplicity of proceedings. The person must, therefore, be a person whose interest is likely to be effected even though no relief is claimed against him. This does not, therefore, extend to persons who have no interest which is likely ' to be effected by the proceedings nor does it embrace persons only generally interested in common with others nor can persons be added as parties so as to set up a new cause of action which does not concern the original parties.
"In general sense, every decision of the Court on a point of law is likely to effect every one in whose case a similar point of law arises but this does not give every person a righrt to intervene in every proceedings before the Court, merely because it is likely to effect him in some future proceedings.
The case-law citdd by the applicants being distinguishable is not applicable to the facts of the present writ petition. The apprehension shown in the application aswell as during the arguments is not sufficient to invoke this Court to-exercfse its jurisdiction under Order I, Rule 10, C.P.C, to implead the applicants as respondents in this writ petition. The principle of Order I, Rule 10, C.P.C, clearly spells out the conditions upon the fulfilment of which a party can be impleadd. An applicant for impleadment as respondent has to satisfy the Court that, his impleadment is necessary for an effective and complete adjudication of all questions involved in the case.
12. The writ petitioner before this Full Bench questioned the validity of the order passed by the Returning' Officer, which stood confirmed due to a split decision of the Appellate Tribunal, In an election matter, the necessary parties to the writ petition are only the contesting candidates, whose nomination papers are accepted or rejected by the^. Retuning Officer. The question whether every person who may be generally benefited or effected by any order has to be impleaded is'now one requiring a decision, the answer to the same is given in Order I, Rule 10, C.P.C, and the judgment reported in the case of Dr. Salee Javed and others v. Mst. Fauzia Nasim and others (2003 S.C.M.R.
965). The necessary party is the one in absence of whom no effective order can be passed if a dispute in a lis can effectively be adjudicated upon in the absence of such a party, It has been held in the case of Syed Ahmad Saeed Karmani v. Punjab Province and others (1982 CLC 590), that it is not possible to implead every one who has been conferred certain advantage by a particular law in a general way which benefit may be lost if the law be struck down for lack of validity. For, otherwise, there will be no end of parties, In any case, it cannot be said that the decision on the writ petition canpot be effectually and completely given in the absence of the applicants. Besides, in another case reported as Abdul Manzoor v.'Additional Commissioner, etc: [NLR 1980 U.C. 276], it was held that, LIT even it had made any scheme is not a necessary party in the writ petition of settlement matters. We are of the view, by allowing such like applications would amount to opening of flood gate and330 G.C.Endless litigation would begin.
13. For what has been discussed above-, applications under Order I, Rule 10, C.P.C, are hereby dismissed.