Government of Pakistan and another VS Hizbullah Khan and another

ORDER SHEET

IN THE ISLAMABAD HIGH COURT, ISLAMABAD

JUDICIAL DEPARTMENT

C.M. Ind. No.873 of 2022 in R.F.A. No.486 of 2021 Qasim Ali Versus Hizbullah Khan and others

S. No. of order Date of order/ Order with signature of Judge and that of parties or counsel / proceedings Proceedings where necessary. 13.10.2022 Mr. Rifaqat Islam Awan, Advocate for the applicant.

M/s Umar Farooq Malana, Mazhar-ul-Haq Hashmi and Zahid Farooq Cheema, Advocates for respondent No.1.

Mr. Imran Ali, Assistant Director, Estate Office / Respondent No.3.

Through the instant application under Section 12(2) C.P.C., the applicant, Qasim Ali, seeks the setting aside of the judgment and decree dated 20.07.2022 passed by this Court in R.F.A. No.486/2021.

2.The subject matter of the said regular first appeal was government accommodation i.e., Quarter No.96-C, Sector G-6/2, Islamabad, over which there was a dispute between the Ministry of Foreign Affairs and the Estate Office. The Ministry of Foreign Affairs had asserted that the said government accommodation was on its pool and therefore, it had the right to allot the same to any of its entitled employees. The said Ministry had allotted the said government accommodation to Hizbullah Khan (respondent No.1). The stance of the Estate Office was that the said government accommodation was no longer on the pool of the Ministry of Foreign Affairs since it had earlier been allotted to a person who was not an employee of the said Ministry.

3.After the said government accommodation was allotted by the Ministry of Foreign Affairs to

R.F.A. No.486/2021

Hizbullah Khan, he had instituted a suit for declaration, mandatory and permanent injunction before the learned Civil Court praying for the possession of the said government accommodation to be handed over to him. The said suit was resisted by the Estate Office, which asserted that the said government accommodation was no longer on the pool of Ministry of Foreign Affairs and that the Estate office had the right to allot the same to a federal government servant. The said suit culminated in judgment and decree dated 28.06.2021 in Hizbullah Khan”s favour.

4.Regular first appeal No.486/2021 was filed by the Ministry of Housing & Works and Estate Office against the said judgment and decree. Vide judgment and decree dated 20.07.2022, the said appeal was dismissed by this Court.

5.The primary ground on which the applicant seeks the setting aside of the judgment and decree dated 20.07.2022 passed by this Court is that the applicant to whom the said government accommodation had been allotted vide allotment letter dated 08.12.2017 by the Estate Office, was still in possession of the said government accommodation but had not been impleaded as a defendant in the suit filed by Hizbullah Khan before the learned Trial Court. The applicant had not even been impleaded as a respondent in Regular first appeal No.486/2021.

6.It is not disputed that the adverse consequences of the judgments and decrees passed by the learned Trial Court as well as this Court would be on the applicant, who may face eviction from the said government accommodation. The allotment in the applicant”s

R.F.A. No.486/2021

favour was made by the Estate Office prior to the institution of the suit. Since the applicant holds an allotment letter issued by the Estate Office and is also in possession of the said government accommodation ever since 26.12.2018, I am of the view that he was a necessary party in the proceedings before the learned Trial Court as well as this Court. His non-impleadment would render the judgments and decrees passed by the learned Trial Court as well as this Court void.

7.It is well settled that a “necessary party” is a person who ought to have been joined as a party and in whose absence no effective decree could be passed at all by the Court. If a “necessary party” is not impleaded, the suit itself is liable to be dismissed. It is the duty of the person bringing the action, appeal or proceedings to implead all necessary parties to it and his omission to do so is a fatal defect which if not remedied with the permission of the Court within the prescribed period by law, results in its dismissal. Adjudication made in the absence of a necessary party is a nullity and of no legal effect. In the absence of a necessary party, a decree will be set-aside. The ground as to the non-impleadment of a necessary party goes to the root of the case and could be argued for the first time before the Hon'ble Supreme Court. Reference in this regard may be made to the law laid down in the cases reported as PLD 1991 SC 65, PLD 1993 SC 147,1989 SCMR 506, PLD 1992 Karachi 323, PLD 2004 Peshawar 155, AIR 1941 Lahore 120, 2014 YLR 825, 2003 YLR 1638 and 2001 YLR 421.

8.Additionally, if the said judgments and decrees passed by the learned Trial Court as well as this Court are not recalled, it would amount to

R.F.A. No.486/2021

condemning the applicant unheard. In the case of Mst. Fatima Vs. Sardara (PLD 1956 Lahore 474), it was held by Kaikaus, J. as follows: “That does not mean that even the violation of the elementary principle that no party can be bound by an order passed behind his back could not be a ground for setting aside the order in exercise of powers of revision. This principle is deemed to be embodied in the provisions of the Civil P.C. principles of natural justice do not need to be expressly embodied in procedural enactments. It is implied in all provisions of the Civil P.C. that an order which affects a party is to be passed only after notice to him.”

9.In view of the above, the instant application is allowed. The judgment and decree dated 20.07.2022 passed by this Court is set-aside and so is the judgment and decree dated 28.06.2021 passed by the learned Trial Court. The matter is remanded to the learned Trial Court. The applicant would be at liberty to apply to the learned Trial Court for impleadment as a defendant in the suit.

(MIANGUL HASSAN AURANGZEB)

JUDGE

Ahtesham*