' This order will dispose of C.M. No,1260 of 2008 and C.M. No,1276 of 2008 filed in Writ Petition No,6470 of 2008, under Order I, Rule 40, C.P.C. With the prayer that the applicants may be impleaded as respondent in the instant writ petition.
2. It is contended by Kh. Haris Advocate, the learned counsel for the applicant in C.M.No,1260 of 2008 that, the writ petition could not be filed challenging the election of respondent No,1 as Article 225 of the Constitution override Article 199 of the Constitution. Submits that respondent No,1 is no longer person to be disqualified for the reasons that after his notification as Member Provincial Assembly, he has been elected as Chief Minister of the Province. The applicant/Province of Punjab is a necessary as well as proper party to the writ petition, as the functions of the Provincial Government are likely to be affected by any order that may be passed in this writ petition. Further submits that after scrutiny of nomination papers of respondent No,1, he was declared a returned candidate of P.P. 48 Bhakkar-II, as he was the only candidate from the said constituency. The writ petition filed on 4-6-2008 challenging his functioning as Chief Minister of Punjab, is not maintainable. Further submits that if the Court comes to the conclusion that the applicant is not a necessary party, then at least he is a proper party to be heard by this Court in this writ petition, as functions of the Government of the Punjab are going to be affected, if any adverse order is passed against respondent No,
1. Further submits that 2nd prayer made in the writ petition is beyond the scope of the writ jurisdiction of this Court, as it is prayed that respondent No,1 be called upon to appear and show under what authority of law, he is holding the office and to show cause why his nomination papers should not be rejected. By relying on the case titled as Bashir Ahmad and others v. Ghulam Ali and others 1991 SCMR 1656, argued that all those parties, who are going to be affected by the decision of a Court and are interested in the lis are necessary party. Further relied upon the case of Metropolitan Corp:ration of Lahore through Administrator v. Syed Bhais (Pvt.)
Limited through Managing Director and 5 others 2004 MLD 1395, wherein it is held that all parties who have a right or interest in a property shall be impleaded in the suit being necessary party to the suit. Referred to the case of Islamic Republic of Pakistan v. Abdul Wali Khan PLD 1975 SC 463, wherein the words "proper party" have been defined to be one whose interest is going to be affected, even if no relief is claimed against him. Also referred to the case of Muhammad Siddique v. Yahya Khan 1994 CLC 1374, Lahore, where Provincial Government was impleaded in a suit as party by observing that Government is directly or indirectly going to be affected by the decision of the Court and was ordered to be impleaded as party in the suit.
3. Mr. Muhammad Akram Sheikh, Advocate in C.M. No,1276 of 2008 filed by Speaker of Provincial Assembly of the Punjab submits that the applicant being Speaker of the Punjab Assembly under the law is required to run and control the affairs of Punjab Assembly. The nomination papers of respondent No,1 were accepted, he was notified as Member Provincial Assembly and Leader of the House and now has been elected as Chief Minister of the Punjab. His nomination papers had been challenged through the instant writ petition and any adverse order passed against respondent No,1 (Mian Shehbaz Sharif) affecting his membership of Provincial Assembly, is bound to affect the functioning of the Provincial Assembly. Applicant though not directly but would be affected indirectly by the decision of this Court, thus is a necessary and proper party to be impleaded as respondent in this case to defend the case of respondent No,1. Further submits that it is not a dispute between two private individuals but it is a dispute between an individual and holder of Public Office i,e, Chief Minister of the Provincial. Further submits that any of the beneficiary can come to the Court and request to be impleaded as a party. It is a political right of every voter to object the procedure of election. He has placed reliance to the cases of Chairman Regional Transport Authority Rawalpindi v. Pakistan Mutual Insurance Company Limited, Rawalpindi PLD 1991 SC 14 and Salah-ud-Din and 2 others v. Frontier Sugar Mills and Distillery Limited and 10 others PLD 1975 SC 244.
4. Conversely, learned counsel for the respondent/writ petitioner argued that, 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 were 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 subsection (5) of section 14 of the Act of 1976. The other contesting candidates had withdrawn their nomination papers. Further submits that, section 54 ibid; clearly mentioned the persons to be impleaded as party in the election petition. By applying 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, application has 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. Moving of these application is a device to prolong the proceedings of writ petition on the part of the applicant.
5. We have heard the arguments of the learned counsel for the parties and perused the record.
6. The question for determination before this Full Bench is who are the necessary and proper parties to be impleaded in a writ petition arising out of an election matter. Both the applications are for impleadment under Order I, rule 10,C.P.C. The first application was filed by Chief Secretary, Punjab and the second by Speaker Punjab Assembly for their impleadment as respondents.
7. It appears from the averments in the applications that the applicants intended to appear on behalf of respondent No,1 to oppose the writ petition and for this reason they have prayed to be impleaded 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 cases of Dr. Saleem Javed and others v. Mst. Fauzia Nasim and others 2003 SCMR 965, The Bakkarmandi Union (Regd), Lahore v. Metropolitan Corporation/LMC through Mayor and 4 others 2000 SCMR 1716, Mst. Rani and another v. Mst. Razia Sultana 1994 SCMR 2268 and Ghulam Muhammad and another v. Mehtab Beg and others 1983 SCMR 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 is 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. A person having rights, which must be affected by the final order or the decree can be dispense with. This point has already been considered in Islamic Republic of Pakistan v. Abdul Wali Khan PLD 1975 SC 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 right to intervene in every proceedings before the Court, merely because it is likely to effect him in some future proceedings.
Khawaja Haris Ahmad, Advocate-learned counsel appearing for the applicant in C.M.No,1260 of 2008 referred to certain case laws. All these cases, due to their peculiar facts and circumstances, are not applicable to the facts of the present writ petition. The apprehension shown in the application as well as during the arguments is not sufficient to invoke this Court to exercise its jurisdiction under Order I, rule 10,C.P.C. To implead the Chief secretary Javed Mahmood as respondent in this case. The principle of Order I, Rule 10, C.P.C. Clearly spell out the conditions upon the fulfilment of which a party can be impleaded. 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. The Government is necessary party in a suit or writ, where the vires of a law has been challenged or where E authority of the Government is challenged without impleading it in the 1 is .
8. Similar is the position of Speaker Punjab Assembly. The learned counsel appearing on his behalf has failed to show us as to how the Speaker Punjab Assembly is going to be effected by a decision to be given in this writ petition. The only point raised that the matter of disqualification of respondent is primarily an issue concerning the procedure of the Provincial Assembly in terms of Article 69(2) read with Article 127 of the Constitution of Islamic Republic of Pakistan, 1973 which provides that no officer or member of Majlis-e-Shoora (Parliament) in whom powers are vested by or under the Constitution for the conduct of the business shall be subject to jurisdiction of any Court in respect of the exercise by him of those powers. Article 225 of the Constitution is not attracted to the present position as it is not the election petition but writ petition challenging the order passed by the Election Tribunal regarding the qualification or disqualification of respondent No, 1 . This argument of learned counsel has no force and is not applicable to the facts of the case.
Persons who are indirectly or F remotely interested are not necessary or proper party. Reliance is placed to the cases of Muhammad Sharif v. Dr. Khurshid Anwar Mian 1996 SCMR 781 and Messrs Jans Cateres v. The Islamic Republic of Pakistan through The Chairman, Pakistan Western Railway, Lahore and 2 others PLD 1972 Lah. 169
9. 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 petitioner are only the contesting candidates whose nomination papers are accepted or rejected by the Returning G Officer. The question whether every person who may be generally benefited or effected by any order has to be impleaded is not 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. Saleem Javed and others v. Mst. Fauzia Nasim and others 2003 SCMR
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 cannot be effectually and completely given in the absence of the applicants.
10. For what has been discussed above, applications under Order I, Rule 10, C.P.C. Are hereby dismissed.