Case law on necessary and unnecessary parties
اس کیس میں ڈیفنس ہاؤسنگ اتھارٹی (ڈی ایچ اے) لاہور اور پرویز ریاض کے درمیان زمین کے ایک ٹکڑے کا تنازعہ تھا۔ پرویز ریاض نے 2009 کے سیل ڈیڈ کی بنیاد پر ملکیت کا دعویٰ کیا اور ڈی ایچ اے اور دیگر کے خلاف قانونی چارہ جوئی کے ذریعے ملکیت کا مطالبہ کیا۔
کارروائی کے دوران، ڈی ایچ اے نے دلیل دی کہ مقدمے میں نامزد کئی مدعا علیہان غیر ضروری تھے کیونکہ ان کے دعوے صرف ڈی ایچ اے کے خلاف تھے۔ ٹرائل کورٹ نے ابتدائی طور پر پرویز ریاض کو ان مدعا علیہان کے بارے میں تفصیلات بتانے کے لیے مقدمے میں ترمیم کرنے کا حکم دیا۔ ڈی ایچ اے نے اتفاق نہیں کیا اور نظرثانی کی درخواست دائر کی۔
لاہور ہائی کورٹ نے کیس کا جائزہ لیا اور نتیجہ اخذ کیا کہ متنازعہ زمین میں براہ راست ملوث فریقین کو شامل کیا جانا چاہیے جو عدالت کے فیصلے کو متاثر کر سکتے ہیں۔ چونکہ 3 سے 103 تک کے مدعا علیہان نے ڈی ایچ اے سے پلاٹ خریدے تھے اور گھر بنائے تھے، لیکن وہ براہ راست پرویز ریاض کے معاوضے یا متبادل جائیداد کے دعوے کا حصہ نہیں تھے، عدالت نے فیصلہ دیا کہ وہ مقدمے کے لیے ضروری نہیں تھے۔ لہٰذا ان کے نام مقدمے سے نکالے جائیں اور پرویز ریاض کو اس کے مطابق مقدمے میں ترمیم کرنے کی ہدایت کی گئی۔
مختصراً، عدالت کا مقصد اس بات کو یقینی بنا کر کیس کو ہموار کرنا تھا کہ صرف متنازعہ زمین میں براہ راست ملوث اور فیصلے کے لیے ضروری فریقین کو شامل کیا جائے، اس طرح غیر ضروری پیچیدگی اور قانونی چارہ جوئی سے گریز کیا جائے۔
اگر آپ کے مزید سوالات ہیں یا مزید وضاحت کی ضرورت ہے تو بلا جھجھک پوچھیں!
The case involved a dispute over a piece of land between Defence Housing Authority (DHA), Lahore, and Pervaiz Riaz. Pervaiz Riaz claimed ownership based on a sale deed from 2009 and sought possession through a lawsuit against DHA and others.
During the proceedings, DHA argued that many defendants named in the suit were unnecessary because their claims were against DHA alone. The trial court initially ordered Pervaiz Riaz to amend the lawsuit to specify details about these defendants. DHA disagreed and filed a revision petition.
The Lahore High Court reviewed the case and concluded that only parties directly involved in the disputed land—who could affect the court's decision—should be included. Since the defendants numbered 3 to 103 had purchased plots from DHA and built houses, but were not directly part of Pervaiz Riaz's claim for compensation or alternate property, the court ruled they were not necessary to the lawsuit. Therefore, their names were to be removed from the lawsuit, and Pervaiz Riaz was instructed to amend the lawsuit accordingly.
In essence, the court aimed to streamline the case by ensuring that only parties directly involved in the disputed land and necessary for a decision were included, thus avoiding unnecessary complexity and litigation.
If you have more questions or need further explanation, feel free to ask!
Stereo. HCJDA 38
JUDGMENT SHEET
IN THE LAHORE HIGH COURT, LAHORE
JUDICIAL DEPARTMENT
Civil Revision No.45297 of 2021
Defence Housing Authority, Lahore
VERSUS
Pervaiz Riaz
JUDGMENT
Date of Hearing: 05.04.2024
Petitioner(s):
M/s Altaf Ur Rahman Khan,
Muqarab Javed Ghumman and
Ishfaq Amir Hussain, Advocates
Respondent(s):
M/s Syed Ali Zafar (ASC) and Syed
Haider Ali Zafar (AHC), Advocates
SHAHID BILAL HASSAN-J: Facts in concision are
as such that respondent instituted a suit for possession
with permanent and mandatory injunction in respect of
land measuring 47-Kanals 17-Marlas, situated in Mauza
Charrar, Tehsil Cantt., District Lahore (the suit
property) by claiming that he became owner of the suit
property by virtue of a sale deed dated 18.07.2009,
registered in the execution of a decree for specific
performance, obtained by the respondent/plaintiff on
20.03.2008. The respondent impleaded 101 owners of
the houses in Blocks W and Z in Phase-III of DHA,
Lahore in the array of the defendants in addition to the
C.R.No.45297 of 2021
2
petitioner/DHA. Majority of the defendants/house
owners were impleaded in the suit as alleged owners of
the houses etc. constructed over the suit property,
without even mentioning their names and parentage.
The petitioner/DHA contested the suit on various
factual as well as legal grounds. The petitioner also
filed an application under Order I, Rule 10, Code of
Civil Procedure, 1908 for deletion of names of the
defendants No.3 to 103 as they derived their title from
the petitioner/DHA and purportedly no useful purpose
would be served by dragging them into the litigation
which was essentially between the plaintiff and the
DHA; that the said application was still pending when
on 28.05.2021 the learned trial Court passed an order
directing the plaintiff/respondent to file amended plaint
by mentioning the names and parentage of 67
defendants and by providing names of 36 defendants.
The petitioner filed a review application against the said
order dated 28.05.2021. The learned trial Court took up
both application under Order I, Rule 10, Code of Civil
Procedure, 1908 and review application and dismissed
the same vide impugned order dated 19.06.2021; hence,
the instant revision petition.
2.
Heard.
C.R.No.45297 of 2021
3
3.
Considering the arguments and going
through the record, it is avowed that only those persons
are necessary and proper party to the proceedings,
whose interest are under challenge in the suit and
without their presence matter could not be decided on
merits. The necessary party is one who ought to have
been joined and in whose absence no effective decision
can take place. The object of Order I, Rule 10, Code of
Civil Procedure, 1908 is to avoid multiplicity of
proceedings, litigation and to ensure that all proper
parties are before Court for proper adjudication on
merits. Once the Court comes to the conclusion that a
person applies for becoming a party is a necessary party
then the Court ought to pass an order directing such
person to be impleaded as party in the proceedings. It is
well settled proposition of law that Court is empowered
under this provision to add any person as plaintiff or
defendant in the suit at any stage and even in appeals or
to delete any person. Joining of party at any stage is
binding in all subsequent proceedings until set-aside in
legal manner. Order I, Rule 10 read with section 107
Code of Civil Procedure, 1908 is applicable to appeals
and the appellate Court has discretion to substitute or
add any person as appellant or respondent provided
they are proper and necessary party to the proceedings.
C.R.No.45297 of 2021
4
4.
In the instant case, in paragraphs No.12
and 14 of the plaint, the respondent has pleaded that:-
‘12. That the land in question is in illegal and
unlawful possession/occupation of
defendants and if any notification
regarding acquisition of land in question
was issued by the defendant No.1 &
2/DHA, even then, the plaintiff is entitled
for alternate land in equal status or is
entitled for compensation in shape of plots/
payment in lieu thereof as per rules and
policy laid down in this behalf.
14.
That the defendants are in illegal and
unlawful possession of the suit property of
the plaintiff and no compensation in shape
of alternate land or of developed plots was
given to the plaintiff, for which the plaintiff
is legally entitled and the defendants are
bound under law to compensate the
plaintiff in either way suitable to the
plaintiff.’
Meaning thereby the main claim of the respondent is
against the present petitioners and not against the
defendants No.3 to 103 and the respondent/plaintiff
would be satisfied if a decree as to compensation or
alternate property in equal status is passed in his favour
against the DHA, if he succeeds in proving his case as
per mandate of law, from whom the other defendants
No.3 to 103 purchased the plots, which are comprising
C.R.No.45297 of 2021
5
of more than 200 Kanals, whereas the disputed property
of the respondent is 47-Kanals 17-Marlas and from the
contents of the plaint is not clear whether the said
defendants No.3 to 103 are in possession of the same
after constructing their houses or not? therefore,
without such specific particulars the defendants No.3 to
103 cannot be said to be necessary and proper party
especially when they are bona fide purchaser after
spending a huge amount and without notice. They
cannot be dragged into litigation mere on the basis that
they purchased the plots from the present petitioner and
are in possession of the same after constructing houses.
In judgment reported as Dr. Saleem Javed and others v.
Mst. Fauzia Nasim and others (2003 SCMR 965), the
Supreme Court of Pakistan held that:-
‘There is no cavil to the legal proposition
that if in absence of a person no effective
decree or an order can be passed in the
suit such person is necessary party and the
suit cannot proceed in his absence and
thus the requirement of addition of a party
in the suit would be essential if in absence
of such party the adjudication of the
dispute is not possible: The legal heirs of
the deceased in a civil suit to recover the
amount of debt due are necessary party
but a stranger in such a suit is neither a
necessary nor proper party. In nutshell we
C.R.No.45297 of 2021
6
may point out that if a dispute in a suit can
effectively be adjudicated in absence of a
person, such person is not a necessary
party to be impleaded in the suit.’
5.
Under Order I, Rule 10, Code of Civil
Procedure, 1908, the Court at any stage of the
proceedings either upon or without the application of
either party and on such terms as may appear to the
Court to be just, may order that the name of any party
improperly joined be struck out. When no relief was
sought against a person otherwise his presence was not
necessary to enable the Court to settle the controversy,
such person may not be added as defendant. In
judgment reported as Hamza Haneef Awan and 7 others
v. Sher Ali Mengal and 9 others (2019 CLC 292), it has
been held that:-
‘If a dispute can effectively be adjudicated
in absence of a person such person is not a
necessary party. While proper party is a
person if its presence before the Court is
necessary to enable it to effectually and
completely adjudicate upon and settle the
questions involved in the suit and it is not
necessary that the plaintiff must seek relief
against such proposed defendant. The
object of adding proper party is to avoid
needless multiplicity of the suit. It is also
well settled that where there is no cause of
action against any such defendant, his
C.R.No.45297 of 2021
7
name may be struck off from the plaint.
The plaintiff is dominus litis but the theory
of dominus litis cannot be overstretched in
the matter of impleading the parties
because it is the duty of the Court to
ensure that if for deciding the real matter
in dispute a person is necessary or proper
party the Court can order to implead such
person and vice versa can also order
deletion of any such person from the plaint
who is not found to be proper or necessary
party. What makes a person a necessary
party is not merely that has relevant
evidence to give on some questions
involved that would only make him
necessary witness. The only reason which
make it necessary to make a person a party
to an action is so that he should be bound
by the result of action.
It has further been held in the said judgment that:-
‘A party is not a necessary party simply
because a pending action might have some
impact on the party’s rights, or otherwise
affect the party. Instead, a person whose
interests may be affected by a decree, but
whose presence is not essential in order
for the court to adjudicate the rights of
others is a proper party but not a
necessary party.
Though the plaintiff, in the present case respondent, is
dominus litis but the theory of dominus litis cannot be
C.R.No.45297 of 2021
8
expanded in the matter of impleading the parties
because it is the duty of the Court to ensure that if for
deciding the real controversy a person is necessary or
proper party the Court can order to implead such person
and vice versa can also order deletion of any such
person from the plaint who is not found to be proper
and necessary party. As observed above, no
specification of the land occupied by the defendants
No.3 to 103 has been given in detail by the respondent
rather it is an admitted position on record that the DHA
Housing Society is consisting of more than 200 Kanals
and main relief has also been claimed by the respondent
against the present petitioners, therefore, the defendants
No.3 to 103 are, in peculiar facts and circumstances of
the instant case, not necessary and proper party,
because in their absence the matter can be resolved and
an effective decree, if any, can be passed in favour of
the respondent, obviously, after due process in
accordance with law.
6.
In view of the above, it is concluded that
the learned trial Court at the time of passing the
impugned order has not considered the true facts of the
case and has failed to exercise vested jurisdiction as per
mandate of law. Resultantly, the revision petition in
hand is accepted, impugned order dated 19.06.2021 is
C.R.No.45297 of 2021
9
set aside, consequent whereof while allowing the
application of the petitioners filed under Order I, Rule
10, Code of Civil Procedure, 1908, the names of
defendants No.3 to 103 are ordered to be deleted and
necessary amended plaint be filed before the learned
trial Court by the respondent/plaintiff. No order as to
the costs.
SHAHID BILAL HASSAN
Judge
Announced in open Court on 10.05.2024.
Judge
Approved for reporting.
Judge
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