' This revision petition is filed against the order passed by the learned Additional Sub-Judge, Mirpur, on December 4, 1994, whereby an application to implead the petitioner as party, was rejected and a decree in favour of respondent No,2, was passed.
2. The facts giving rise to the present revision petition are that a suit for the Specific Performance with regard to the land measuring 2 Kanals 11 Marlas out of 3 Kanals 7 Marlas, comprising old Survey No,922/923/942/943, New, 1184, Khewat No,5/4, Khata No,10/15, situate in village Banni, Tehsil Mirpur, was filed by plaintiff-respondent No,2, against defendant-respondent No,1, in the Court of Additional Sub-Judge, Mirpur, on January 4, 1994. During the pendency of the suit, an application on behalf of the applicant-petitioner to implead him as party to the proceedings, was moved before the trial Court which, after filing the objections by the respondent, was dismissed and decreed on the basis of compromise effected between the plaintiff and defendant (respondents here in) was passed in favour of plaintiff-respondent No,2.
3. Mr. Liaqat Afzal, the learned counsel for the petitioner maintained that the petitioner was a co- sharer in the Khewat, as such was a necessary party in the proceedings. It was also argued that the plaintiff-respondent, with the connivance of defendant-respondent, filed a suit for Specific Performance for a decree which is against the rights and interest of the petitioner as, according to the learned counsel, the defendant-respondent had sold his entire share and had left no share in the Khewat. The learned counsel further argued that in absence of the petitioner, the suit could not proceed. On the other hand, Ch. Muhammad Siddique, the learned counsel for the respondent vehemently opposed the petition on the grounds that the suit in which the petitioner moved an application to be impleaded as party, was decreed by the trial Court, therefore, an appeal was competent instead of revision petition filed by the petitioner. It was emphasised that in presence of the remedy available in the shape of appeal, resort to the revisional jurisdiction of this Court cannot be had .
4. I have heard the learned counsel for the parties and also gone throug the record, with care. The suit for Specific Performance was filed by the plaintiff-respondent No,2, against defendant- respondent No,1, for the suit land. A copy of the Jamabandi for the year 1991-92, was also appended with the plaint. A perusal of the above Jamabandi revealed that Shaukat Ali, applicant-petitioner was also entered as owner. The suit was filed without impleading th e other co-sharers. However, the applicant-petitioner, on acquiring knowledge about the above suit, filed an application to implead him as party to the proceedings, on August 4, 1994. It may also be mentioned that the application was moved on the ground that the defendant-respondent, Liaqat Ali had transferred his entire share in the suit land and had left no share to be alienated. The defendant/respondent wanted to transfer the suit land through a decree in favour of plaintiff-respondent who filed a collusive suit.
5. It may be mentioned that the Court may, at any stage of the proceedings, add the name of any person as plaintiff or defendant who ought to have been joined as plaintiff or defendant or whose presence before the Court may be necessary, in order to enable the Court to adjudicate upon and settle all the questions involved in the suit effectually and completely, under sub-rule (2) of Rule 10 of Order 1, C.P.C. The object of the sub-rule is to avoid multiplicity of the litigation and dispose of all the questions involved in the suit. For the purpose of this rule, the parties can either be classified as necessary or proper parties. A person who ought to have been joined, is a 'necessary party and a person whose presence is necessary to effectually and completely adjudicate upon and settle all the points involved in the suit, is a proper party. The parties in whose absence no effective decree can be passed, are necessary parties and a suit cannot proceed in absence of a necessary party.
However, the suit in absence of a proper party is not bad but the object of making such persons parties, is to prevent needless multiplicity of suits and to protect the interest of the parties to the suit or of such persons who are added as proper parties. Another important object is to allow full and final adjudication of the dispute between the parties. Such persons need not be interested in all the reliefs sought in the suit or in the questions in issue between the parties already on record.
6. It is noticed that the applicant-petitioner apprehended collusiveness of the plaintiff and defendant (respondent herein). The suit was filed without impleading him party in the proceedings and after his filing the application to implead him as party, a compromise was effected between them and a compromise decree was passed accordingly. It appears that the plaintiff consciously did not implead the petitioner as party. It is admitted between the parties that the applicant petitioner is an owner of the suit land and, in the circumstances, the claim of his being added as a party to the proceedings in view of his apprehension in the above suit, his presence is necessary not only for the effectual and complete adjudication and settlement of all the questions involved in the suit but as a necessary party as well, in whose absence no effective decree can be passed.
7. So far as the objection raised by the learned counsel for the respondents with regard to the maintainability of the revision petition in presence of remedy available to the petitioner in the shape of appeal is concerned, it may be added that the learned Additional Sub-Judge dismissed the application for impleading the petitioner and also preceded to pass the decree in favour of plaintiff on the basis of compromise by a common judgment. It admits of no exception that the remedy by way of appeal is provided against a decree passed by the Sub-Judge to the Court of District Judge. However, the learned trial Judge committed a grave illegality in refusing the petitioner, a necessary party to the proceedings, to be impleaded as party. Therefore, the proceedings culminating into decree, in- absence of the above necessary party cannot sustain and as such, are required to be set aside in exercise of revisional jurisdiction of this Court. Reliance is placed on the case titled "Abdur Rashid v. Gulzar" decided by the Supreme Court of Azad Jammu and Kashmir, on December 21, 1994. Wherein it was observed:-- "On the strength of the aforesaid authorities, the learned counsel contended that in view of bar contained in section 115, C.P.C., the order of the executing Court was not revisable by the High Court.
The above authorities cited) by the learned counsel for the appellant lay down a general principle that certain orders are appealable. There is no quarrel with the principle of law enunciated therein.
' However, we are of the view that where there has been a patent illegality or the order is found to be without jurisdiction, despite -the provision of an order being appealable, the High Court has the power to correct an order passed by a subordinate Court in exercise of powers of superintendence vested in the High Court."
8. In view of the above discussion, the revision petition- is accepted, the judgment and decree: passed by the trial Court- is set aside and the case is remanded to the Additional Sub-Judge.
Mirpur. The application of the C petitioner stands accepted, resultantly, he is added as party to the suit. The Additional Sub-Judge shall proceed with the case according to law.