1990 PLP 309 (MLD)

WAJIHUDDIN AHMED, J.‑‑This petition is directed against the order dated 30‑4‑1989 passed by the Banking Tribunal for Sindh and Baluchistan, established under section 4 of the Banking Tribunals Ordinance, 1984, whereby such Tribunal declined the joinder of M/s. R.B. Avari & Co. (Private) Limited as alleged beneficiary in relation to the petitioner's claim of Rs.9,7,42,745 under the Islamic System of Banking, as reflected in suit No.449/88, primarily directed against M/s. Agricultural Enterprises, respondent No.2, herein, of which Byram R. Arari is said to be the proprietor.

2. The above‑referred suit filed by the petitioner before the Banking Tribunal, as instituted, apart from M/s. Agricultural Enterprises also included M/s. Farm Services Syndicate as the other defendants, the former having been cited as the principal debtor and the latter as guarantor. In or about August, 1988 when M/s. Agricultural Enterprises filed their written statement it was disclosed that the second defendant in the suit namely, M/s. Farm Services Syndicate was the sole Proprietary concern of R.B. Avari, father of Byram R. Avari, Proprietor of M/s. Agricultural Enterprises, who had passed away on 23‑3‑1987 and that the suit against such defendant was, therefore, bad. The petitioner applied for amendment of the plaint and substitution of the legal heirs of the deceased proprietor of M/s. Farm Services Syndicate but the Tribunal, per order dated 13‑10‑1988, dismissed such application, making it necessary for the petitioner to file another suit in January, 1989, numbered as suit No.113/89, against the referred legal heirs and before the same learned Tribunal. Another offshoot of the written statement of the respondent No.2 before the Tribunal in Suit No.449/88 was the purported projection of M/s. R.B. Avari and Company (Private) Limited, as the real beneficiary of the finance provided by the petitioner and on such question an issue was struck viz. Issue No.2 on or about 2‑11‑1988 which is reproduced hereunder:‑ "Whether the suit is bad for non‑joinder of necessary party, R.B. Avari & Company Private Limited ?"

3. The petitioner thereupon filed an application under Order 1 Rule 10(2), C.P.C. in April, 1989 for joinder of M/s. R.B. Avari and Company (Private) Limited on the ground that since such party had been shown to be the real beneficiary of the finance provided by the petitioner they, as well, were liable for the claim in suit under the Banking Tribunals Ordinance of 1984 and therefore, their presence was necessary for effectual and complete adjudication and settlement of all the questions involved in the Suit. This application was strongly opposed by M/s. Agricultural Enterprises, the defendant No.1 in the suit, and was, ultimately, disallowed by order dated 30‑4‑1988 which is impugned in these proceedings.

4. As per short order announced in Court on 4‑9‑1989 we had allowed this petition subject to reasons to be recorded in due course. These are the reasons for such order.

5. The learned Tribunal in its referred order, observing, that the written statement in the suit was filed on 10‑8‑1988 and the Issues were framed on 2‑11‑1988 whereas the application under Order 1 Rule 10, C.P.C. was submitted on 13‑4‑1989, the sole reason that weighed with it, in disallowing the application under Order 1 Rule 10, C.P.C. was no more than this:‑ "To allow the joinder of R.B. Arari (Private) Limited, at this stage, would tantamount to pre‑judging the issue."

6. It is obvious that the Tribunal fell into an error of law and acted illegally in passing the impugned order. There are more than one reasons for such conclusion.

7. It is to be noted that the procedure of the Tribunal, regulating the exercises of its jurisdiction is clearly covered by the Code of Civil Procedure and if not more at least the principles deducible from the Code apply to the Tribunal. Indeed, even in respect of forums where some or more of the provisions of the Code of Civil Procedure have been expressly excluded the consensus of judicial opinion is that the principles and provisions of the Code of Civil Procedure, as are in consonance with equity, justice and fairplay in a lis are still to apply. In point, may be the jurisdiction of Controllers under the West Pakistan Rent Restriction Ordinance (VI of 1959) and the Sindh Rented Premises Ordinance, 1979 wherein either the provisions of the Code have been excluded wholly or in part but the above dicta has still been applied.

8. Now, it is a ‑basic principle of law enshrined in Order 1, Rule 9, C.P.C. that no suit shall be defeated solely on account of non‑joinder or misjoinder of parties. It is, therefore, not only an obligation and duty cast on parties to the suit to join all necessary parties but also a responsibility of the Court itself and, acting on this principle, joinder has been allowed even at the appellate stages.

9. The observation of the learned Tribunal that joining of the proposed party would amount to pre‑judging the above issue is also misconceived. If by mere framing of an issue the joinder of a party can be precluded then all that a person, motivated by technicalities, is to do would be just to have such an issue quickly struck. Nothing is further from the intention of law for if that was so such a preclusion would have been expressly provided for. Even a waiver as to non- joinder or misjoinder contemplated under Order 1, Rule 13 C.P.C. applies only to defendants.

10. The order of the learned Tribunal is also contradictory in terms, inasmuch as, the Tribunal has followed the principles and provisions in the Code of Civil Procedure in so far as framing of issues is concerned but has declined joinder of a party which also involved the adoption of a just and fair principle in the Code.

11. It also remains to be pointed out that on the principles underlying the Code of Civil Procedure a judicial forum has little option but to join a necessary party, subject, of course, to the rules of limitation, where applicable and necessary. In such cases there is little scope for discretion. It is only in relation to a proper party that the judicial authority adjudicating upon a lis has a discretion which, clearly, is to be exercised on sound principles of justice. Therefore, since the petitioner claimed that M/s. R.B. Avari and Company (Private) Limited were a necessary party that question had to be approached in such context.

12. In support of the impugned order learned counsel, who represented both Agricultural Enterprises and R.B. Avari Company (Private) Limited, contended that R.B. Avari and Company were neither a necessary nor a proper party and that there was bar of Order 2, Rule 2, C.P.C. in impleading them as a party to the suit. It was also urged that the jurisdiction of this Court under Article 199 of the Constitution did not extend to correction of the impugned order as that jurisdiction is not of an appellate nature.

13. In the first instance, whether a particular person is a necessary or a proper party or neither has to be determined on the pleadings or other material in the case and on the basis of the application for joinder, if any, submitted before the Court or Tribunal. On examination of all such material we find that the very fact that an issue was framed about the absence of R.B. Avari & Co. as a "necessary party" would indicate that the defendants in the suit admitted M/s. Avari and Company (Private) Ltd. to be a necessary party for it was on their pleas that the issue was struck. This is conclusive on the question and nothing more needs to be said.

14. As to the bar of Order 2 Rule 2, C.P.C, such contention is also erroneous since the bar under that provision, for filing a subsequent suit on a cause of action or relief relinquished in a given suit, applies only to the parties, as they are arrayed in such suit, and does not apply to a person, who was not a party to the previous suit at all.

15. The. jurisdiction under Article 199 of the Constitution is undoubtedly not of an appellate nature but it is, now, established law that such jurisdiction is, more or less, akin to and may be, in some respects even somewhat broader than that conferred on a revisional Court under section 115 of the Code of Civil Procedure. Such scope clearly extends to matters involving failure to exercise or excessive exercise. of jurisdiction or illegality or material irregularity in exercise of jurisdiction. We have no doubt that where a necessary party to judicial or quasi -judicial proceedings has been refused to be joined by a sub‑constitutional Tribunal such a refusal is amenable to correction under Article 199 of the Constitution.

16. Lastly, apprehension was expressed that if joinder is permitted such joinder may constitute a finding that M/s. Avari & Company (Private) Limited are conclusively, a beneficiary under the Banking Tribunals Ordinance. 1984. During the course of hearing, we clearly expressed ourselves that this would not be the effect of setting aside of the impugned order and allowing joinder and that the only effect of such finding would be that M/s. R.B. Avari & Company (Private) Limited would be joined as an alleged beneficiary and it will have to be proved, on evidence and other material on record, whether or not they were such a beneficiary. This satisfied the learned counsel for the two respondents and he frankly conceded if that was the situation there would be no objection by any of the said two respondents to the joinder.

17. Accordingly, the above petition stands allowed. The impugned order dated 30‑4‑1989 of the respondent No.1 Tribunal stands quashed and, as a result, M /s. R.B. Avari & Company (Private) Limited would be joined as a defendant in suit No.499/88 pending before the respondent No.1 Tribunal. Follow up steps will be taken by the Tribunal ire accordance with law. There will be no order as to costs. A.A./B‑141/K Petition allowed