' The brief facts out of which the present writ petition arises are that the petitioner filed a suit for declaration with permanent injunction before the Civil Judge 1st Class, Lahore. The petitioner filed application under Order 1, rule 10, C.P.C. To implead the respondents Nos.3 and 4 as defendants in the suit of the petitioner which was accepted after hearing the arguments of both of parties vide order, dated 11-12-1990. The trial Court rejected the plaint of the petitioner under Order 7, rule 11, C.P.C. Vide order, dated 7-1-1993. The petitioner being aggrieved filed appeal before the Additional District Judge, Lahore. During the pendency of the appeal, respondents Nos.3 and 4 filed an application under Order 1, rule 10, C.P.C. With the prayer for deletion of their names in the suit/plaint of the petitioner. The appeal of the petitioner was accepted and the case of the petitioner was remanded to the trial Court and respondents were directed to file application under Order 1, rule 10, C.P.C. Before trial Court. Respondents Nos.3 and 4 filed an application under Order 1, rule 10, C.P.C.
For deletion of their names from the plaint as observed by the learned Additional District Judge, vide judgment, dated 26-2-2000. The application of the respondents Nos.3 and 4 was rejected by the trial Court vide order, dated 23-5-2000. The petitioner being aggrieved filed a revision petition before Additional District Judge who accepted the same vide judgment, dated 11-9-2000, hence the present writ petition.
2. The learned counsel of the petitioner submits that order, dated 11-12-1990 of the trial Court was not challenged by the respondents before any higher forum. Same is final between the parties. He further submits that First Revisional Court was erred in law to accept the revision of the respondents Nos.3 and 4 on the basis of the observations made by the Additional District Judge in earlier round of litigation vide judgment, dated 26-2-2000. He further submits that Revisional Court was erred in law to accept the revision petition of the petitioner on the principle of res judicata which is not attracted qua the observation of the earlier order of the Additional District Judge. The respondents Nos.3 and 4 submits that observatidn of the Additional District Judge in judgment, dated 26-2-2000 is final between the parties. The learned Additional District Judge was justified to accept the revision petition in terms of the law laid down by the superior Courts. In support of his contention, he relied upon Mst. Nooran and another v. Shah Muhammad alias Shahu PLD 1968 Lah., 433, Abdul Hakim and 2 others v. Saadullah Khan and 2 others PLD 1970 SC 63, Raja and others v.
Hussain and others PLD 1957 (W.P.) Lah.
52. He further submits that the petitioner did not challenge the order of the Additional District Judge, dated 26-2-2000, therefore, that is final between the parties by virtue of section 105 of C.P.C.
And the petitioner is estopped to challenge the vires of the order of the Additional District Judge, dated 26-2-2000 before the trial Court as well as before this Honourable Court. The learned counsel of the L.D.A. Supported the cases of the petitioner. He submits that in the interest of justice and fairplay and to avoid multiplicity of litigation, application of the respondents Nos.3 and 4 was rightly dismissed by the Trial Court and same was accepted by the Additional District Judge on erroneous assumption and against the principle of natural justice and the law laid down by the superior Courts.
3. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record myself.
4. It is admitted fact that the petitioner filed application under Order 1, rule 10, C.P.C. Before the trial Court which was accepted after hearing respondents Nos.3 and 4 vide order, dated 11-12-1990. The respondents Nos.3 and 4 did not challenge the vires of the said order before any higher forum, therefore, same is final between the parties as per principle laid down by the Honourable Supreme Court in Pir Bakhsh's case PLD 1987 SC 145. It is better and appropriate to reproduce the operative part of the order of the Additional District Judge, dated 26-2-2000 to resolve the controversy between the parties:-- "As such, both the respondents appeared to be unnecessary parties for which they may apply to the learned trial Court for deletion of their names."
' The aforesaid observation of the Additional District Judge in order, dated 26-2-2000 is not finally adjudicated and respondents Nos.3 and 4 were directed to file an application before the trial Court.
The judgments cited by the learned counsel of the respondents is not attracted in view of these findings and distinguished on facts and law. It is settled principle of law that any observation of any Court in the interim orders is not final between the parties which is tentative in nature and cannot operate tolB prejudice any party at the time of the decision of the suit. In arriving to this conclusion, I am fortified by the following judgment:-- ' Mehr Muhammad Tari v. Muhammad Shafi and others 1986 SCMR 1976.
The learned Revisional Court did not advert to the reasoning of the trial Court. The Revisional Court decided the case merely on surmises and conjectures in violation of the law laid down by the superior Courts. Even otherwise it is in the interest of the parties to avoid multiplicity of the litigation.
Respondents Nos.3 and 4 are necessary and proper party as per principle laid down by the Honourable Supreme Court in Abdul Wali Khan's case 1975 SC 463.
5. In view of what has been discussed above, I accept writ petition and the impugned order of the Revisional Court, dated 11-9-2000 is set aside and the order of the trial Court is upheld in the interest of justice and fairplay.