IQBAL HAMEEDUR RAHMAN, CJ. --- Through the single judgment I intend in dispose of the above- titled civil revision petition as well as Civil Revision Petition No. 120/2012 titled "Miraj Gul Vs. Mrs. Rukhsana Amin, etc" as subject-matter of both the above titled Civil revision petitions is almost the same.
2. Through Civil Revision Petition No. 3/2013 under Section 115, C.P.C. The petitioner has sought setting aside of the judgment and decree dated 19.12.2012 passed by the learned Additional District Judge, Islamabad whereby appeal under Section 96, C.P.C. Filed by the department etc. Was dismissed as well as judgment and decree dated 27.9.2012 passed by the learned Civil Judge, Islamabad whereby the civil suit of respondent No. 1 was decreed.
3. In Civil Revision Petition No. 120/2012, the petitioner has sought setting aside of the order dated 15.11.2012 of the learned Additional District Judge. Islamabad whereby the application under Order I, Rule 10, C.P.C. Was dismissed.
2. Brief facts of both the civil revision petitions are that the petitioner was allotted House No. 1-B, Special Education Colony, Street No. 39-B, I-9/4, Islamabad and he is in occupation of the same.
Respondent No. 1 filed a civil suit for the allotment of the said house without arraying the petitioner as party to the suit. The petitioner filed application under Order I, Rule 10, C.P.C. Before the Civil Court for his implead ment as party to the said suit which was dismissed vide order dated 30.4.2012.
Subsequently, the suit, vide judgment and decree dated 22.5.2012 was dismissed by the Civil Court.
Respondent No. 1 preferred an appeal against the dismissal of her suit which was accepted vide judgment and decree dated 24.7.2012 and the case was remanded to the Civil Court for its decision afresh. Thereafter, the Civil Court decreed the suit of respondent No. 1 vide judgment and decree dated 27.9.2012. Appeal thereagainst was preferred by respondents Nos. 2 to 4 before the learned Additional District Judge, Islamabad where the petitioner filed an application under Order I, Rule 10, C.P.C. For his implead ment which was dismissed vide impugned order dated 15.11.2012.
Subsequently, the said appeal was dismissed vide impugned judgment and decree dated 19.12.2012. In consequence of the impugned judgment and decree, the learned Civil Court issued warrant Dakhla through Bailiff of the Court against which the petitioner filed application under Order XXI, Rule 29 read with Section 151 f C.P.C. For stay of proceedings before the Executing Court which was declined. The petitioner preferred an appeal against the said order and the learned Appellate Court ordered for stay the proceedings before the Executing Court. The petitioner also filed appeal ~% under Section 12(2), C.P.C. For setting aside impuged judgment. And decree dated 27.9.2012 before the learned Trial Coud which is also sub Judice. Hence, both the revision petitions.
11. Learned counsel for the petitioner has contended that the learned Appellate Court has failed to take into consideration that in the absence of a necessary party i. e. The petitioner who is in possession of the disputed accommodation, no valid decree could be passed against him unless he was duly associated with the suit proceedings; that the petitioner has been condemned unheard in violation of his fundamental right guaranteed by the Constitution; that respondent No. 1 had sought allotment of Government accommodation through a civil suit merely on the basis of a written order passed by the Private Secretary to a Federal Minister, as such, the civil suit was not competent; that the disputed house could not be allotted to respondent No. t as she was in BPS-17 while the disputed house falls under the entitlement of BPS-19/20; that the petitioner was fully entitled for the allotment of the disputed house as he was at Sr. No. 1 of the General Waiting List; that on the very next day after the dismissal of the appeal of respondents Nos. 2 to 4 warrant Dakhla was issued by the learned Executing Court without taking into account that application of the petitioner under Section 12(2), C.P.C. Is pending and that too prior to the issuance of said warrant no notice had been given to the petitioner; that respondent No. 1 had not come to the Courts below with clean hands as she had not made the petitioner as party to the suit as well as in the appeal; that the learned Appellate Court has failed to appreciate that in cases where the Court of law is vested with power of suo motu to do an act limitation hardly matters; that there is no law or provision of limitation for filing application under Order I, Rule 10, C.P.C.; that the petitioner is being deprived of his lawful right of allotment of Government accommodation for which he is waiting for the last 20 years, by the Court of law; that the impugned judgments and decrees have no legal value as the same have been passed ex-parte and in violation of principle of and alterum parten-, that warrant Dakhla could not have been issued as no such prayer had been made by respondent No. 1 in the suit; that the case may be remanded to the learned Trial Court with the direction to implead the petitioner as party to the suit and then decide the same afresh. Learned counsel for the petitioner fortified his contentions by relying upon the cases of Muhammad Din Vs. Sher Muhammad (1999 CLC 1526), Manager, Jammu & Kashmir, State Property in Pakistan Vs. Khuda Yar and another (PLD 1975 Supreme Court 578) Basharat Ali and others Vs. Muhammad Anwar and others (2010 SCM R 1210), H.M. Saya & Co., Karachi Vs. Wazir Ali Industries Ltd., Karachi and another (PLD 1969 Supreme Court 65) and Allah Ditta Vs. Lahore Development Authority and 5 others (2012 CLC 271 [Lahore]).
12. On the other hand, the learned counsel for respondent No. 1 contended that the petitioner has no locus standi to i.e the instant civil revision petition as he was not party to the proceedings in the Courts below; that petitioner's application under Section 12(2), C.P.C., claiming the same relief as sought in the instant civil revision petitions, is pending before the learned Trial Court, as such, on this score alone both the civil revision petitions are liable to be dismissed; that the petitioner cannot seek one claim simultaneously from the learned Trial Court as well as from this Court; that the application of the petitioner under Order I, Rule 10, C.P,C. Was dismissed for non-prosecution, as such, the petitioner himself opted not to be heard; that when the petitioner moved said application before the learned Trial Court he was not allottee or in occupation of the disputed house; that the question in the civil suit was not with regard to the General Waiting List rather, the lis before the learned Trial Court was that respondent No. 1 was entitled for allotment of the disputed house under the Minister Quota; that on 24.5.2012 the operation of the impugned judgment and decree dated 21.5.2012 was suspended and status quo order was granted while the petitioner got allotted the disputed house on 25.5.2012, as such, the same has been allotted in violation of status quo order; that to avoid consequences of contempt proceedings the department on 19.9.2012 cancelled the allotment of the petitioner, as such, since that date the petitioner is illegal occupant of the disputed house; that the petitioner is seeking equitable relief being an illegal occupant of the accommodation in question; that the suit remained pending after the setting aside of judgment and decree and this fact was in the knowledge of the petitioner but he never got his application under Order I, Rule 10, C.P.C. Restored; that the only remedy available to the petitioner was to get restored his application under Order I, Rule 10, C.P.C. Which was dismissed for non-prosecution; that in the presence of proceedings under Section 12(2), C.P.C. Before the learned Trial Court both the civil revision petitions are not maintainable and the same are liable to be dismissed.
13. Arguments of learned counsel for the petitioner and learned counsel for respondent No. 1 heard and perused the documents appended with both the civil revision petitions as well as case-law cited by the learned counsel for the petitioner.
14. First of all to resolve the question of maintainability of both the civil revision petitions that whether the petitioner can i.e the revision petitions or not despite the fact that he was not party to the suit as well as to the appeal before the power Court, guidance can be sought from the case of Shaib Dad Vs. Province of Punjab and others (2009 SCM R 385) and Muhammad Din Vs. Sher Muhammad (1999 CLC 1526) wherein it has been held as under:-- S. 115-Revision-Competence to i.e-Person who was a necessary party and whose rights and interests were adversely affected by a decree and who was not heard, was competent to invoke revisional power of High Court after establishing his bona i.e rights and interests that he possessed.
15. It has been observed that being an eligible candidate for allotment of the Government accommodation the petitioner is striving from pillar to post so that he may get an opportunity of hearing. Initially he had moved application under Order I, Rule 10, C.P.C. For his implead ment as a necessary party before the learned Civil Court but unfortunately his application was dismissed for nonprosecution. Later on the suit of respondent No. 1 was dismissed and with the dismissal of respondent No. is suit the claim of the petitioner being a necessary party was automatically vanished. The department has allotted the accommodation in favour of the petitioner and he took possession of the same and began residing thereat. In the meanwhile, respondent No. 1 filed an appeal against the judgment and decree of the Civil Court before the learned Appellate Court who remanded the case to the Civil Court to decide the same afresh. Respondent No. 1 succeeded to get the suit decided in her favour vide judgment and decree dated 27.9.2012 and the department challenged the said judgment and decree before the learned Additional District Judge, Islamabad.
At that occasion the petitioner once again tried to join the proceedings by filing application under Order I, Rule 10, C.P.C. But his application was rejected by the learned Additional District Judge, Islamabad and he has to invoke the jurisdiction of this Court under Section 115, C.P.C. I have gone through the judgments and decrees passed by both the Courts below with great care and caution and found that both the lower Courts, without appreciating the fact that the petitioner was the most necessary party being occupant of the Government accommodation in question, have passed the impugned judgments and decrees in his absence. On the second round of litigation respondent No. 1 was well aware of the fact that the department had already allotted the disputed house in favour of the petitioner but she dishonestly had not impleaded the petitioner in the array of respondents. Although it is a claim of respondent No. 1 that the accommodation was allotted to the petitioner in violation of the status quo order dated 24.5 2012 yet she remained unable to substantiate her claim through any document that she had duly informed the status Suo order to the department before the allotment of the disputed house to the petitioner. In this way, it is observed that neither respondent No. 1 bothered to associate the petitioner with the suit proceedings nor the learned lower Courts opted to implead the petitioner before passing the impugned judgment and decree by taking suo motu notice of this factum. Law is quite settled on the point that nobody should be condemned unheard and the decisions should not be made merely on technicalities. The judgment and decree of the Court of law should be on the touchstone of natural justice. In this case, being allottee and in occupation (legally or illegally) of the disputed house, the petitioner was the most necessary and proper party but unfortunately he was not joined at any forum before both the lower Courts. The petitioner had not only made efforts before the lower Courts but also tried at his level best to be associated with the proceedings before the learned Appellate Court. I shall feel it necessary to observe here that the Courts have emphatic power to implead any necessary party to reach just and fair conclusion but intriguingly this fact was lacking in this case.
16. It is also inevitable to observe here that the petitioner even otherwise was claiming his right over the disputed accommodation on the basis of General Waiting List (GWL) and he was allotted the accommodation by the department, so ignoring him or passing any decree against him in his absence would be a classical example of and alterum parten. In my view, passing any judgment and decree without associating the petitioner being a necessary party, would be a mockery of justice and I, for one, would not like to be a part of such mockery.
17. The other important feature in this case is that during the litigation before the learned Appellate Court the department had cancelled the allotment of the petitioner and that's why an objection has been raised by the learned counsel for respondent No. 1 to the effect that the petitioner has no locus standi for filing the revision petitions. In response to this objection, I may observe here that prima facie it seems that the department has issued cancellation letter under the influence of litigation pending in the Court of law, otherwise, it was the department which itself, at one stage, had allotted the accommodation in question to the petitioner on the merits of the case and later on it does' not lie in the mouth of the department to say that the petitioner was not entitled for the allotment of the said accommodation.
18. In view of what has been discussed above, the Civil Revision Petition No. 3 of 2013 is accepted and the impugned judgments and decrees dated 19.12.2012 and 27.9.2012 passed by the learned Additional District Judge as well as learned Civil Court respectively, are set aside and the petitioner is impleaded as necessary party in this case. Resultantly, the case is remanded to the learned Civil Court to decide the same afresh after joining the petitioner and giving him opportunity of hearing as necessary party. Consequently, the suit filed by respondent No. 1 shall be deemed to be pending before the learned Civil Judge who after summoning the i.e shall proceed in accordance with law and observations made hereinabove. Those present are directed to appear before the learned Trial Court on 12.3.2013.
19. In view of acceptance of Civil Revision Petition No. 3/2013, the Civil Revision Petition No. 120/2012 has lost its relevance, hence the same stands disposed of accordingly.