Mst. Farzana Bibi etc. vs A.D.J etc.

Stereo H.C.J. D. 38

JUDGMENT SHEET

IN THE LAHORE HIGH COURT

BAHAWALPUR BENCH, BAHAWALPUR.

(Judicial Department)

Writ Petition No.294 of 2021-BWP.

Mst. Farzana Bibi. Vs. Addl. District Judge, etc.

JUDGMENT

Date of hearing: 10.09.2026.

Petitioner by: Mr. Muhammad Aslam Khan Dhukkar, Advocate.

Respondents No.2 to 5: Proceeded against ex-parte.

TANVEER AHMAD SHEIKH, J. Through this Civil Revision Petition under Section 115 of the Code of Civil Procedure, 1908 (hereinafter referred as “CPC”), the petitioners have voiced against the judgment dated 14.10.2020, whereby application under Order 1 Rule 10 of CPC, filed by respondents No.2 to 5, in proceedings under Section 12(2) of CPC was allowed by the learned appellate Court/Addl. District Judge, Sadiqabad and M/S Muhammad Yaqoob and Raiz Khushi Muhammad, Advocates, were ordered to be impleaded as party to the lis.

2.Precisely stated, the relevant facts of the case are that Sardar Noor Elahi Khan, predecessor-in- interest of the petitioners, instituted a suit for declaration against Mst. Zubaida Begum, etc., challenging the validity of the alleged oral gifts. The said suit was decreed by the learned Civil Judge 1st Class, Sadiqabad, vide judgment and decree dated 13.05.2006, on the basis of the written statement,

wherein the defendants had conceded the claim. Subsequently, the said judgment and decree was amended vide order dated 22.07.2006. Thereafter, respondents No. 2 to 5 filed an application under Section 12(2) of the Code of Civil Procedure, 1908 (“CPC”), seeking the setting-aside of the judgment and decree dated 13.05.2006, as amended on 22.07.2006. The said application was contested by the petitioners. The learned trial Court framed issues and recorded the evidence of the parties. The application under Section 12(2) of the CPC was thereafter fixed for recording of rebuttal evidence on behalf of the applicants, namely, Mst. Tehmina Bibi, etc. At that stage, respondents No. 2 to 5 filed an application under Order I Rule 10 of the CPC seeking impleadment of Mr. Muhammad Yaqoob, Advocate, and Mr. Rais Khushi Muhammad Parhar, Advocate as parties, who had represented the parties as their respective counsel in the original suit. The said application was dismissed by the learned trial Court vide order dated 03.11.2018. Aggrieved by the said order, respondents No. 2 to 5 assailed the findings of the learned trial Court before the learned Revisional Court by filing a Civil Revision Petition. The revision petition was allowed by the learned Additional District Judge, Sadiqabad, District Rahim Yar Khan, vide impugned judgment dated 14.10.2020.

3.It was submitted by the learned counsel for the petitioner that impugned order dated 14.10.2020, passed by the learned Addl. District Judge, Sadiqabad is against the law, facts and record of the case; that Mr. Muhammad Yaqoob and Mr. Rais Khushi

Muhammad Parhar, Advocates were not necessary parties to the lis coupled with the fact that Ch. Muhammad Yaqoob, Advocate has already been expired and he cannot be impleaded as party.

4.Arguments heard. Record perused.

5.The principal question requiring determination is whether the advocates, who represented the parties in the original proceedings can be impleaded as parties to proceedings under Section 12(2) of CPC merely on the allegation that fraud was committed through them or with their assistance. The answer, in my considered view, is in the negative. The record makes it clear that the both the Advocates intended to be impleaded as party to the lis i.e. Mr. Muhammad Yaqoob, Advocate, and Mr. Rais Khushi Muhammad Parhar, Advocate were not parties to the original suit and they merely represented their respective clients in the capacity of advocates. An advocate appearing for a party does not possess any personal interest by virtue of such representation nor become a party to the lis. He is only an agent/pleader of his client/party. He always acts upon the instructions of his client. He is an officer of the Court and not the dominus litis or a person against whom substantive relief is claimed in the subject matter. The rights and liabilities adjudicated upon in the original proceedings were those of the actual parties to the suit, and the advocates representing them cannot be treated as parties to the lis merely because they conducted the proceedings on behalf of their clients.

6.It is a well settled principle that a person can be impleaded as party to lis under Order I Rule 10 of CPC only where his presence before the Court is necessary or proper for the effective and complete adjudication of the matters in controversy. The term “necessary party” has been defined and elaborated in a case titled “Muhammad Yousaf Vs. Additional District Judge, Farozeqala and others” (PLD 2023 SC 503) as under:- “Necessary party is one whose legal rights/obligations are directedly adjudicated and in whose absence no effective order/decree can bind the substantive dispute.“ Emphasis supplied.

7.Application under Order 1 Rule 10 of CPC for joining or striking out parties applies to the persons/entities claiming an interest in the subject matter and not the counsel representing them. The provision cannot be invoked for the purpose of converting a counsel representing a litigant into a party to the proceedings, particularly where no independent relief is claimed against such counsel and his presence is not necessary for determining the controversy between the actual litigants. The allegation that fraud was committed by the respective advocates of the parties does not, by itself, furnish a lawful basis for their impleadment as parties to proceedings under Section 12(2) of CPC. If a party asserts that fraud was committed in obtaining a judgment or decree, the Court is required to examine the allegation in accordance with law and determine whether the impugned judgment or decree was vitiated by fraud,

misrepresentation or want of jurisdiction. The mere fact that an advocate represented a party at the relevant time does not make such advocate a necessary or proper party to the proceedings.

8.It is also significant that the proposed Advocates had no independent interest in the subject matter of the original suit. They were neither claiming any right in the property in dispute nor seeking any relief in respect thereof. Their role was confined to representing the parties before the Court. The controversy under Section 12(2) CPC is between the persons, whose rights were affected by the impugned judgment and decree and cannot, merely on the basis of allegations against counsel, be expanded so as to make the advocates parties to the proceedings.

9.Moreover, one of the proposed advocates, namely Ch. Muhammad Yaqoob, Advocate, has already been expired. A deceased person cannot be impleaded as a party to pending proceedings. This circumstance provides an additional reason for declining the relief sought against him. It is further observed that the remedy, if any, against professional misconduct or misconduct on the part of an advocate is governed by the applicable legal framework and cannot be achieved indirectly by impleading the advocate as a party to proceedings under Section 12(2) CPC, unless his presence is otherwise legally necessary for adjudication of the controversy. No such necessity has been demonstrated in the present case.

10.Respondents failed to establish that any relief has been sought against the proposed advocates,

which cannot effectively be granted in their absence. Their impleadment would neither assist the Court in deciding the validity of the impugned judgment and decree nor is it necessary for determining the allegations raised in the application under Section 12(2) CPC. Rather, their impleadment would unnecessarily enlarge the scope of the proceedings and alter the nature of the lis.

11.For the foregoing reasons, I am of the considered view that Mr. Muhammad Yaqoob, Advocate (late), and Mr. Rais Khushi Muhammad Parhar, Advocate, are neither necessary nor proper parties to the proceedings under Section 12(2) CPC. Their mere engagement as counsel for the respective parties in the original suit does not confer upon them the status of parties to the lis, nor can their impleadment be justified solely on the basis of allegations of fraud allegedly committed through or with their involvement. Consequently, this writ petition is allowed and impugned judgment dated 14.10.2020, passed by the learned Addl. District Judge, Sadiqabad is hereby set-aside and order of the learned trial Court dated 03.11.2018 is restored.

(Tanveer Ahmad Sheikh) Judge

Approving for reporting.

Judge Muhammad AJMAL