Muhammad Siddique and Muhammad Shafi sons of Ismail, who are respondents Nos.2 and 3, herein instituted a suit for declaration that they were owners of the suit land described in the plaint and the omission of the said land from the Khata and inclusion of the same in fictitious Khata of Sardar Ali who was impleaded as defendant No.1 and its sale by the said Sardar Ali to Lahore Cantonment Cooperative Housing Society Lahore Cantonment defendant No.2 was void, illegal and ineffective and was based on fraud, misrepresentation and forgeries. As a consequential relief, injunction was also sought. The proceedings that ensued with the institution pf the said suit have chequered details reference thereto is being avoided except to state that there were ex parte proceeding initially, which were set aside and even the suit was dismissed for non-- prosecution at a stage and was restored. The ex parte decree dated 26-5-1981 was eventually passed by the trial Court for the setting aside of which an application was moved by the petitioner-Society, which was accepted on 2-7-1985, where against a revision petition was instituted by the plaintiff (respondents Nos.2 and 3), which was accepted by the learned Additional District Judge, Lahore on 26-6-1986.
Through this writ petition, the said order is sought to be assailed. There is another limb of litigation which is that against ex parte decree dated 25-8-1981, the petitioner Society tiled an appeal before the First Appellate Court, which appeal was dismissed by the learned Additional District Judge, Lahore on 30-5-1994, being time-barred and for non-impleading Sardar Ali who was defendant No.1 in the original suit. This judgment dated 30-5-1994, is subject-matter of C.R. No.3254 of 1994.
Since the writ petition as also the civil revision arise out of the same suit, the same parties and the same subject-matter, both have been heard together and are being disposed of through this judgment.
2. Record perused. Suffice it to stately that there was an application before this Court (C.M. No.1-C of 2000) made by Jan Muhammad son of Muhammad Ismail with his grievance that the respondents/plaintiffs who were his real brothers had not impleaded him as party to the suit and had excluded him from the contest to his prejudice effecting his rights and interest. The said application was allowed on 15-11-2002 and he was ordered to be impleaded as party to the petition. There is no rebuttal of the fact that he was necessary party to the litigation. There cannot be any cavil that an adjudication made in the absence of a necessary party is nullity and of no legal efficacy. Reference in this context may be made to Hassan Din v. Hafiz Abdus Salam and others (PLD 1991 SC 65) and Province of the Punjab through Member, Board of Revenue (Residual Properties), Lahore and others v. Muhammad Hussain through Legal Heirs and others (PLD 1993 SC 147).
3. There is, however, another inherent defect in the proceedings and indeed a contradictory approach was adopted by the Court in passing orders dated 26-6-1986 and 30-5-1994. It may be reiterated that against the order dated 26-5-1981, whereby an ex parte decree was passed in the matter, the application filed by the petitioner for setting aside the same was accepted by the trial Court on 2-7-1985. A revision petition was filed there against by the plaintiffs/respondents, which was accepted by the learned Additional District Judge, Lahore, on 26-6-1986. In that revision petition Sardar Ali defendant No.1 had not been impleaded as party. Objection taken by the petitioner Society about the defect in the revision petition was overruled by Syed Riaz Hussain Shah, Additional District Judge, Lahore, observing that he was merely a pro forma defendant and non- service of notice upon him was not fatal. Effect whereof was to bring into force the ex parte decree dated 26-5-1981.' Contrarily, when the ex parte decree dated 26-5-1981 was assailed in appeal by the petitioner, the same was dismissed by Khawaja Imtiaz Ahmad, Additional District Judge, Lahore on 30-5-1994, taking the view-that "since Sardar Ali was not made a party in the appeal though he was party in the main suit as such the appeal is incompetent". Thus a wholly contradictory approach was adopted by two judicial officers, one while disposing of revision petition and the other while disposing of the appeal arising from the same suit. As noted above, for accepting revision petition filed by the plaintiffs/respondents vide order dated 26-6-1986, the learned Additional District Judge, had overruled the objection as to the effect of non-impleading of Sardar Ali, whereas for the same reason i.e. Non-impleadment of Sardar Ali the appeal filed by the petitioner was dismissed by another learned Additional District Judge. Needless to observe that such a contradiction obviously crept into judicial orders due to non-application of mind, cryptic approach and disregard of the law on the subject. Sardar Ali was defendant No.1 in the suit instituted by Muhammad Siddique and Muhammad Shafi, respondents Nos.2 and 3 herein, he was necessary party for all intents and purposes and had to remain so throughout the proceedings till their conclusion. Suffice it to state that no effective adjudication can take place in the absence of a necessary party and where a person is party before the lower Court, he cannot be left out in the appeal/revision before the higher forum. An omission of his name from the array of the parties before the higher forum will render the proceedings incompetent. Reference in this context may be made to Mst. Mehr Nishan v. Mst. Gulzar Begum and 2 others (1986 CLC 1706) and Muhammad Suleman v. Abdul Rashid and 13 others (PLD 1987 Lahore 387). The revision petition instituted by the respondents/plaintiffs without impleading him was defective and was not legally constituted and competent, thus order dated 26-6-1986 passed by the learned Additional District Judge, Lahore (Syed Riaz Hussain Shah) in the absence of necessary party was illegal and has to be declared so.
The result would be that order passed by the learned trial Court dated 2-7-1985 whereby the ex pane orders were set aside will hold the field and the suit will be heard and tried in accordance with law after notice to all concerned including Jan Muhammad, who has been impleaded as party to this petition.
4. Insofar as C.R. No.3254 of 1994, is concerned, it arose against judgment dated 30-5-1994, passed in the appeal instituted by the petitioner-society against order dated 26-5-1981. In view of the acceptance of the writ petition and restoration of the order of the trial Court dated 2-7-1985, this petition indeed has become infructuous and stand disposed of accordingly. No order as to costs.