1996 PLP 1009 (CLC)

Thus the relief sought by defendants Nos.4 and 5 is that the Court should take initiative to join the concerned departments as defendants on the face of record no matter the said defendants are having very sound sleep or are not coming forward to protect the rights of their departments for the reasons best known to them although reasons of showing no interest by the officials may not be different from those which are usually known to the public including their collusion with any specific party or due to corruption at the cost of their respective departments interests. On the other hand it was contended by Mr. Hamza I. Ali that the referred documents are forged and cannot be relied upon. It was also alleged that the plaintiffs and defendants Nos.4 and 5 are in collusion with the plaintiffs to delay the matter. Whether the plaintiffs and defendant No. l are in collusion with one another (as alleged by defendants No.4 and 5) or the plaintiff and the defendants No.4 and 5 have joined their hands together to defeat defendant No. l in, this controversy (as alleged by defendant No. l), nothing can be said with certainty because this Court has no physical, magical, spiritual or super‑natural forces to find out the role of each party with reference to the allegations of collusion unless the Court records some evidence.

6. At the same time, particularly at this stage, several questions appear to remain unanswered. For example: (i) Why the Authorities of Evacuee Property, in spite of this knowledge that orders of Additional Custodian in favour of Kulsum Bai had been set aside by the Custodian, remained silent and allowed the said Mst. Kulsum Bai to get the property mutated in her name or remained spectator till her death? Such criminal silence cannot take place unless palm of some corrupt bureaucrats had been properly greased. (ii) If the Custodian had not passed any order to set aside the order of Additional Custodian and the documents in this regard are found forged as alleged by Mr. Hamza I. Ali, then presence of such documents in the record could not take place unless some corrupt bureaucrats were bribed to perform this dirty role by remaining in collusion with the plaintiffs. (iii) How the orders of Additional Custodian in favour of Mst. Kulsum Bai or order of the Custodian to set aside the order of Additional Custodian were obtained by defendants Nos.4 and 5 who were/are only tenants? It is known to everyone that at least it is not possible for any common person to obtain such documents without greasing the palms of corrupt bureaucrats. The result of such corruption has given rise to increase of litigations among the poor citizens and the present suit is only one out of several examples. On account of such corruption, big pieces of lives of poor litigants are spent in hope of getting these properties and in most of the cases these unfortunate hopers leave this world leaving their heirs to face the same agonies. These painful realities always forced me to believe that corrupt bureaucrats are worse than prostitutes because prostitutes sell their own chastity to earn their bread and butter under duress or on account of their inherited profession but the corrupt bureaucrats sell the chastity of humanity on account of their lusty nature and unbounded avarice of wealth by unlawful means at the cost of nation's integrity by sowing the seeds of everlasting disputes among the poor citizens. It may be the most useful service to expose such corrupts at the time of final disposal of this suit, if possible.

7. What would be the future and fate of defendants Nos.4 and 5, if they are ejected from the premises in dispute by defendant No.l on account of rent cases pending before the Rent Controller if he fails to prove his ownership in the present suit? It appears that defendants Nos.4 and 5, to get their fate protected, approached this Court again and again and once in the Supreme Court to get the rent cases stayed but they always failed. If on account of certain changed circumstances, as claimed in the application in hand, had come to light and it had created any new cause of action, these defendants could file a separate suit but I have no doubt in my mind that filing of present application under Order 1, Rule 10, C.P.C. before this Court was not a proper path to get the desired result.

8. The present application under Order 1, rule 10, C.P.C. has been moved by defendants Nos.4 and 5 on the ground that unless the Secretary, Custodian of Evacuee Property and K.M.C. are made parties Issue No.6 cannot be decided. It may be advantageous to reproduce the said issue herein below again although reproduced in para. 5 above:‑‑ "Whether Custodian, Evacuee Property passed alleged order dated 14‑12‑1969 declaring the property in question evacuee if so, what is its effect? I think that contention of the learned advocate is totally misconceived because if the Court decides that Custodian, Evacuee Property has not passed such order, the defendant No. l becomes owner of the property in dispute and if the Court decides that the Custodian passed the said order, then plaintiffs become owner of the property provided the said property was auctioned and purchased by the father of the plaintiffs. On the other hand if the property was not auctioned, then it is still an "Evacuee Property". In any case, defendants Nos.4 and 5 would remain only tenants in the said property no matter the plaintiffs or defendant No. 1 succeed or fail to prove their ownership. Thus the question arises whether an application under Order I, rule 10, C.P.C. can serve any purpose of defendants Nos.4 and 5 to get any relief if any of them is proved owner? It can be said by these defendants that they be not ejected from the premises in dispute unless the question of ownership is decided. No doubt the defendants have right to raise such an issue and they can adopt any other path permitted by law with reference to that issue but moving an application under Order I, rule 10, C.P.C. is certainly not the proper path to get that relief. Hence this application merits no consideration for allowance and is liable to be dismissed. My reasons for holding so can be summarised as under:‑‑ (a) A Court, while exercising jurisdiction under Order I, rule 10, C.P.C. is competent to direct joining of two classes of persons, namely, necessary parties and proper parties. The parties against whom no relief is sought, they cannot be termed as necessary parties. Similarly only those parties would be treated proper parties whose presence before a Court is A necessary for deciding any issue or all relevant questions in the suit completely and effectively. Reliance in this regard can be placed on a case reported as Islamic Republic of Pakistan v. Abdul Wali Khan in PLD 1975 SC

463. If the contents of application with reference to Issue No.6 referred in the application are weighed in the scale of this well‑settled proposition then it appears that neither any of the parties is a necessary party nor a proper party. (b) Similarly contention of the learned advocate for defendants Nos.4 and 5 could be given some importance only: ‑ (i) If these defendants had taken a stand in the written statement that they were neither the tenants of the plaintiffs nor of defendant No. l because the property was still an evacuee property; or (ii) that the plaintiffs were in collusion with defendant No. l to deprive the defendants from the said property; and/or (iii) if there had been some issue framed by the Court on this stand. The reason for holding so is obvious. The burden of proving any such plea is on the shoulders of defendants Nos.4 and 5 which burden could be discharged by bringing someone as witness from the concerned i department as witness of defendant Nos.4 and 5 or as Court‑witness. As neither such plea has been taken in the written statement nor any issue has been framed by the Court, therefore, application of the defendants Nos.4 and 5 can be given the least consideration to serve any of their purposes. If the defendants were definitely of the view that nature of the case had changed after some evidence, they could either apply to ‑file amended written statement or had instituted a separate suit. Hence it can be safely said that present application was filed with mala fide intention only to get the proceedings of rent cases stayed under one pretext or the other.

9. The application in hand can be seen from another angle too particularly on the basis of contention raised by the learned counsel for defendants Nos.4 and 5 that this Court has a wide discretion in the matter of joinder of parties. I consider it necessary to point out that question of addition of parties under this revision of law (Order I, rule 10, C.P.C.) is generally not one of initial jurisdiction .if the Court but of judicial discretion which has to be exercised in view of the facts and circumstances of a particular case. The wide powers possessed by the Court do not mean that the Courts should start simultaneous and parallel investigation of the controversies particularly in respect of those points which are neither the part of pleadings nor of the issues B framed by the Court. After going through the application and its supporting affidavit I feel that the relief sought by the learned advocate amounts to asking the Court to start simultaneous and parallel investigation of its own to find out whether the plaintiffs or defendant No. l only by relying upon the allegations of defendants. I have no doubt in my mind that such act of the Court would be totally out of the scope of Order, I, rule 10, C.P.C. Hence this contention has no force at all.

10. It is important to mention that at the time of considering an application under Order I, rule 10, C.P.C. the Court must not ignore this factor that allowance of application should not become a cause of changing the nature of the suit, embarrassing any of the parties, loading the record and complicating the issues of the suit because all such acts are beyond the scope of this provision of law. Reliance in this regard can be placed on a case reported as Pakistan Banking Council and another I . Ali Muhammad Naqvi and others in 1985 SCMR 714. 1 On the basis of this proposition, if application of defendants Nos.4 and 5 under Order I, rule 10, C.P. . is allowed, it would undoubtedly attract, inter alia, the following consequences (i) Nature of the s it with reference to the ownership of the property in dispute as claimed by the plaintiff or defendant No.1, would be changed. (ii) It would force the existing parties to amend the pleadings of the parties, sought to be joined as defendants, submit their written statements in accordance to the new stand of defendants Nos.4 and 5 regarding ownership of the property. which amounts to embarrassing the plaintiffs as well as defendant (iii) Thus result of joining she proposed parties as defendants particularly when their legal status is still in the air and shadowed by their own character, not only will create complications but also increase the record unnecessarily..

11. In the light of this discussion, application filed on behalf of defendants Nos.4 and 5 under Order I, rule' 10, C.P.C. merits only dismissal and the same is accordingly dismissed with cost.

12. Perhaps the learned advocate for these def ants had realised the fate of this application, therefore, he prayed at bar at learned Rent Controller dealing with the rent cases filed by defendant N against defendants Nos,4 and 5 be directed to decide the issue of relation of landlord and tenant. It was further alleged that the Rent Control was not inclined to decide the relationship between the parties. This statement without any affidavit cannot be relied upon and it would amount to a establish a bad precedent if this Court goes on issuing instructions. to the Rent controllers or any other Tribunal in such manners. At the same time I do not believe that any Rent Controller can avoid to decide such point if the relationship has been denied by any tenant. The Rent Controller is a Tribunal and he may not adopt the same procedure as is adopted by the Civil Courts but a same time it cannot be presumed that the Tribunal can ignore any of the important issue raised in the applications because such conduct can create several doubts about the integrity of such Tribunal and at the same time it can me a cause of further delay in disposal of the cases finally because the Sup r Courts are generally inclined to remand the cases back to the same Courts if any issue or any important point raised by any of the parties is ignored by any of the subordinate Court/Tribunal. On account of these reasons I need not to issue any directions because I cannot believe that the learned Controller would avoid to decide any such issue which is the root of any rent case of ejectment. A.A./A‑1593/K Order accordingly,