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Writ Petition No. 443 of 1975, decided on 10th July 1975.

Civil Procedure Code (V of 1908)‑

O. I, r. 10 read with Canal and Drainage Act (VIII of 1873), S. 68 ‑‑ Warabandi, dispute over ‑ Divisional Canal Officer's order confirmed by Superintending Canal Officer challenged as illegal in declaratory suit before civil Court‑Canal Officer appearing before Court yet Court deleting his name as defendant‑No effective decla ration, held, could be given in absence of such defendant and Court acted without lawful authority.

Fateh Muhammad and others v. Muhammad Bashir and others 1968 S C M R 1220 ref.

Razia Begun v. Iqbal Begum and others P L D 1957 Lah. 1040 and Muhammad Ishaq v. Muhammad and others P L D 1958 Lah. 717 rel:

Zafar Pasha Chaudhry for Petitioners.

Ch. Hafeez Ahmed for Respondent No. 1.

Nemo for other Respondents.

Date of hearing: 10th July 1975.

This petition under Article 199 of the Constitution is directed against the a revisional order

passed by the Additional District Judge. Lyallpur, dated 20th December 1974, whereby he dismissed the revision petition against the order passed by the Senior Civil

Judge lyallpur deleting the name of defendant No. 2 from the array of the parties in a suit for a declaration challenging the warabandi under the Canal and Drainage Act, pending in his Court on 6th November 1974.

2. The Officers of the Canal Department have been appearing Court and the learned Senior Civil Judge of his own exercising the

under Order I, rule 10, sub‑rule (2), C. P. C. deleted defendant No.2 Copy of the plaint (Annexure C') has been

filed which clearly was thrown to the orders of the Divisional Canal Officer Superintending Canal Officer. The prayer clearly was for a declaration to the effect that the order dated 3rd September 1974 passed by defendant illegal and ultra vires In these circumstances it is clear that no effective declaration could be given in the absence of defendant No. 2. In Fateh Muhammad and others v. Muhammad Bashir and others (1968 S C M R 1220). at page 1222 it was observed : that the D. C. O. in such circumstances is a necessary party. Reference was made to Razia Begun v. Iqbal Begum and others (P L D 1957 Lah. 1040), wherein it was held :‑

"The Court is vested with the jurisdiction of striking off the name of a party only on the condition that such a party is improperly joined in the suit. The impropriety referred to in sub‑rule (2) of rule 10 of Order I, Civil P. C. means that the party has no interest in the suit and has no connection whatever with the reliefs claimed in the suit."

Reference was made to Muhammad Ishaq v. Muhammad and others (P L D 1958 Lah. 717), by Ch. Hafeez Ahmad learned counsel for the respondent, but he has not been able to show that any contrary view was taken by the learned Judge in the above cited judgment.

3. From the above discussion it is clear that the trial Court acted without lawful authority in deleting the name of the defendant and the learned f District Judge refused to exercise jurisdiction vested in him under section 115. C. P. C. in accordance with law. The petition succeeds, but the parties are left to bear their own costs.

S. A. H. Petition allowed.

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