1. This Revision against the order by the learned Senior Civil Judge, Math allowing the application under Order 1, Rule 10, C.P.C. Of respondents Nos.5, 6 and 7 in 1st Class .Suit No. 13 of 1994.
2. The facts leading to this revision are that the applicants filed a suit against the respondents Nos. l to 4 in the Court of Senior Civil Judge, Math for declaration and permanent injunction. According to the applicants their land is settled on watercourse 6-BR Ex-Tando Ghulam A.I distributory, for irrigating lands, they constructed a Nali (suit branch) from Blida land running in the Western part of their lands at the cost of Rs.1 lac since the year 1989-90. The respondents Nos.2 to 4 gave a notice to the applicants to close this Nali, being has unauthorised. They filed suit for declaration that they are entitled to irrigate their lands from the said Nali, and respondents Nos. l to 4 be restrained from interfering in flow in that Nali "suit branch".
3. Respondents Nos.5 to 7 filed an application before the Lower Court under Order 1, rule 10, C.P.C.
4. Alongwith affidavit of respondent Ghulam Muhammad. In his affidavit Ghulam Muhammad affirmed that their lands are settled on watercourse 19-L Ex-Chakar minor; and the Nali "suit branch" is actually; a branch of watercourse 19-L Ex-irrigating their lands.
5. The learned Senior Civil Judge, Math vide his order, dated 10th July, 1994 allowed this application hence this revision application.
6. The learned Advocate of the applicant has argued the respondents Nos.4, 5 and 6 cannot be joined as defendant as there are not necessary and proper parties to the suit as the Nali "suit branch" is from water course 6-BR, and not 19-L. He further contended that respondents Nos.4, 5 and 6 have no concern at all with a flow of water in the suit Nali. They cannot be joined as a party.
7. The learned Advocate for respondents Nos.4, 5 and 6 has argued that this Nali actually is adjacent to their lands and is constructed to take the water from watercourse 19-L for irrigating lands of the respondents; as such they are necessary and proper party. Outcome of the suit will affect their rights.
8. To resolve this controversy, and with the consent of the parties it was decided that Additional Registrar of this Court be appointed as Commissioner to ascertain the location of this Nali "suit branch" and verify whether water flow in Nali "suit branch" irrigates lands in command of watercourse 6-BR or 19-L. Officials 2 Irrigation Department were directed to help the Additional Registrar in this respect.
9. Additional Registrar/Commissioner and in presence of the parties and their Advocates inspected the site on 16-1-1995 has submitted his report. According to the report of the Commissioner this Nali "suit branch" has been taken out from watercourse 6-BR and the irrigates lands of the applicant which are settled on watercourse 6-BR. According to the Commissioner this Nali is unauthorised, and is in Government land. It starts from Survey No.254 and at the ends Survey No. 187. According to the map, Nali suit branch in command of watercourse 6-BR. According to the report the lands of respondents Nos.4, 5, 6 and 7 are irrigated from watercourse No. 19-L Ex-Chakar distributory, and respondents Nos.5 and 7 are not effected on account of running of unauthorised Nali from watercourse 6-BR.
10. This report clearly shows that this Nali "suit branch" is being used for the flow of the watercourse 6- BR and irrigates lands in command of watercourse 6-BR.
11. At this stage it is immaterial whether the above Nali is unauthorised or illegal. That will be between applicant and respondents Nos. l to 4. It has to be determined whether the respondents Nos.5 to 7 are necessary and proper parties and whether flow in this Nali "suit branch" affects the rights of respondents Nos.5 to 7.
12. The learned Advocate of the applicant has placed reliance on Ghulam Muhammad and others v.
13. Mehtab Baig and others reported in 1983 SCMR 849, (2) Muhammad Yasin Khan Sherpao v: Rawat Busal (Private) Limited 1989 ALD 246; (3) Muhammad Kalim Khan and 2 others v. Muhammad Farouk Khan and another (PLD 1987 Karachi 38), (4) M/s Paragon Company v. Government of Sindh reported in 1993 MLD 853.
14. Whereas the Advocate for the respondents has placed reliance on Ashraf Muhammad Ismail v.
15. C.V.E. Endeavour and two others reported in 1988 MLD 2457, (2) Islamic Republic of Pakistan v. Abdul Wali Khan PLD 1975 Supreme Court 463 and (3) A.M. Qureshi v. Deputy Commissioner (East), Karachi 1989 MLD 4543.
16. All above rulings cited by both the Advocates define and explain what are proper necessary parties: It has been held in Muhammad Yasin Khan Sherpao v. Rawat Busal (Private) Limited 1989 ALD 246:- - "A person may be added as a party to suit in two cases only, namely (1) when he ought to have been joined and is not joined that is when he is a necessary party and (2) when without his presence suit cannot be completely adjudicated. No jurisdiction is available to add a party in any other case."
17. PLD 1987 Karachi 38 it has been held as under: "Section 3--Civil Procedure Code (V of 1908), Order 1, Rule 10---Terms 'proper party', and 'necessary party', connotation of A--person would be a party whose presence before Court was deemed necessary in order to enable Court effectually and completely to adjudicate upon and settle all questions involved in suit--A necessary party was one whose presence was necessary to pass effective decree. "
18. 1993 MLD 853 it has been held: "Art. 199--Civil Procedure Code (V of 1908), Order I, Rule 10---Impleading of intervenor as a party in Constitutional petition---Essentials--Intervenor can be joined during pendency of Constitutional petition only when presence of such party before the Court was necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit."
19. "Unless party proposed to be added had directly or indirectly some interest in controversy or its adjudication, such power could not be invoked: A party could be impleaded only if it was a necessary party or proper party. A necessary party would be one without whom no order could be made effectively while a proper party would be one in whose absence an effective order could be made but whose presence was necessary for complete and final decision of questions involved in proceedings."
20. "Proper party must be one whose interest is likely to be affected even though no relief claimed against him--Persons having no interest likely to be affected by proceedings, persons only generally interested in common with others, or persons whose addition likely to set up new cause of action--Not proper parties."
21. "Order 1, Rule 10(2)--Provision of Order 1, Rule 10(2), C.P.C.---Object Provision of Order 1, Rule 10(2), C.P.C. Is made for a number of reasons including avoidance of multiplicity of suits."
22. These lands of respondents are in command of watercourse 19-L. The suit Nali is from the Government land. Whether this Nali is authorised or not. Whether the applicants are entitled to get the land irrigated through this Nali is as a matter between the applicant and the respondents Nos. l.
23. To 4. Decree in the suit will not affect the rights of the respondents Nos.5 to 7 in respect of their lands. At least reason given by, respondents No.5 to 7 in the affidavit filed alognwith application under Order 1, Rule 10, C.P.C. Does not at all reveal any interest of the respondents Nos.5 to 7 in flow of the water in suit Nali. They claim that suit Nali is for the flow of the water of 192 for the irrigating their land which contradicted by the report of the Commissioner against which nobody has filed any objection.
24. With the above observations the Revision Application is allowed and the impugned order is set aside with no order as to costs.