1992 PLP 700 (CLC)

Mr. Tariq Hussain the learned counsel for the plaintiff, contended firstly that the agreement for sale between the plaintiff and the Intervenor having been properly cancelled, she has no interest in the property and that, in any event, the only course open to her is to sue the plaintiff for specific performance of that agreement. He further submitted that if the object of the Intervenor in seeking to be impleaded as a party to this suit be to obtain specific performance of that agreement, such object would be outside the purview of the present suit; and that in so far as she claimed any right to the property in pursuance of the alleged allotment by the defendant to her, she has acquired no interest whatsoever because the defendant was a mere contractor and had no right to allot the property to her. In any event, he said, the Intervenor has not produced any letter of allotment. Mr. Tariq Hussain further contended that the Intervenor cannot be joined as a party to the suit because the questions involved in this suit are questions between the parties to the suit and her presence is not necessary for adjudicating upon those questions; that the joining of the Intervenor to the suit would amount to introduction of a new cause of action and that is not permissible under Order I, Rule 10 (2), C.P.C.; that merely because the interest, if any, of the Intervenor would be incidentally affected by any decision in this suit is not a ground for joining her as a party; that the plaintiff is a dominus litis and cannot be compelled to fight against a party not of his choice; that the plaintiff would be prejudiced by introduction of irrelevant matters; and that the plaintiff has not disclosed any prima facie case. In support of his submissions, Mr. Tariq relied on the cases of Mukhijiramdas Jethanand and others v. Tikamal Mulchand and another (AIR 1935 Sind 194), B. Somaiah and another v. Sint. Amina Begum (AIR 1976 Andhra Pradesh 182), Motiram Roshanlal Coal Co. (P.) Ltd. v. District Committee, Dhanbad and others (AIR 1962 Patna 357), Arjan Singh and others v. Kartar Singh and others (AIR 1975 Punjab & Haryana 184), Gonsalo de Filomena Luis etc. v. Inaciopiedade Hildeberte Fernandes and others (AIR 1977 Gova 4), Banarsi Dass Durga Prushad v. Punna Lai Ram Richpal Oswal and others (AIR 1969 Punjab & Haryana 57), Smit. Bhagwanti v. Custodian General and another (AIR 1976 J & K 29), Messrs Jans Caterers v. The Islamic Republic of Pakistan through Chairman, Pakistan Western Railway, Lahore and 2 others (PLD 1972 Lahore 169), Muhammad Kalim Khan and 2 others v. Muhammad Farouk Khan and another (PLD 1987 Karchi 38) and Jamilur Rahman v. Muhammad Asghar and others (PLD 1968 Lahore 1076). The point for determination is whether the expression "questions involved in the suit" in Order I, Rule 10 (2), C.P.C. refers only to questions between the parties to the suit or whether it also embraces questions which may be raised by a person seeking to be made a party to the suit. In the case of Mir Hasmat Ali v. Birendra Kumar Ghosh and others (PLD 1965 Dacca 56), a suit for specific performance of an agreement was filed and the Province of East Pakistan applied to be joined as a party to that suit alleging that the contract sought to be specifically enforced was in violation of several laws. It was held that the point involved in the suit was whether the plaintiff was entitled to specific performance and that was the point on which the presence of the Province of East Pakistan was necessary. It was held by their Lordships of Dacca High Court that the relief in a suit for specific performance may be granted on considerations of equity and not merely on terms of the contract and that in such a case the Court has wider discretion to add a party who will be able to place before it facts and circumstances relevant to the suit, upon which the Court may refuse to enforce the contract. It was observed, "the phrase, "all the points involved in the suit" does not mean "all the points that are raised by parties". The phrase is not amenable to any such restricted meaning. All the points, though not raised as between the parties themselves, as are material to a proper decision of the suit, are necessarily points "involved in the suit". It is clear that in that case the question involved was a question between the parties to the suit and the Province of East Pakistan was considered to be a proper party for the purpose of determining that very question. No question raised by the province of East Pakistan arose in that suit. The case, therefore, does not support the contention on behalf of the intervenor and is, in any case, distinguishable from the facts of the present case. In the case of Haji Abdul Wahab v. Karachi Municipal Corporation (PLD 1956 Kar. 391), a suit had been filed against K.M.C. for declaration that certain premises were dilapidated, dangerous, and not such as could be repaired and that the orders of the defendant requiring carrying out of repairs were unlawful. An injunction was also sought to restrain the defendant from authorising the tenants to carry out repairs at the cost of the plaintiff. The tenants applied under Order I Rule 10, C.P.C. to be joined as parties to the suit; and it was held that they were proper parties. Vellani, J., who decided the case, held that the tenants had a right to repair, which involved the valuable right to recoup themselves from the rents. That right was threatened by the suit on the grounds identical with those on which the main relief of declaration was sought and, if the declaration were granted, the very premises occupied by the tenants would be demolished. In these circumstances, it was observed, common questions of law and fact would arise if separate suits were to be brought. It was further observed that the joinder of the tenants would not have the effect of widening the case as between the parties of the suit. It is true that, in spite of a decision of a Division Bench cited in that case, Vallani, J, appears to indicate that the expression "questions involved in the suit" is not restricted to questions raised by the parties but the actual decision proceeds on considerations which do not obtain in the present case. Besides, the facts of that case would show that the question of the tenants' right to repair the property was involved in the suit and that they were considered proper parties in the circumstances of the case. In the case of Islamic Republic of Pakistan v. Abdul Wali Khan (PLD 1975 S 'C 463), it was observed at page 467, as follows:‑ "A proper party is a party whose presence before the Court is necessary to enable the Court to effectually and completely adjudicate upon and settle all questions involved in the proceedings. The terms "questions involved" include all matters, material to a proper decision of the case but the object of making such persons parties is to prevent multiplicity of proceedings. The person must, therefore, be a person whose interest is likely to be affected even though no relief is claimed against him. This does not, therefore, extend to persons who have no interest which is likely to be affected by the proceedings nor does it embrace persons only generally interested in common with others nor can persons be added as parties so as to set up a new cause of action which does not concern the original parties." In the passage cited above, the expression "questions involved" is held to include all matters material to a proper decision of the case. The matters material for proper decision of the present case are on record in the pleadings of the parties and none of the matters which the applicant has set out in her application are, in any way, material to the proper decision of the questions arising in the present suit. In the case of Hussain Mills Ltd. v. Abdul Rashid Khan and 2 others (1984 C L C 2452), the main question to be determined between the parties was whether the goods in question were covered by Item No.22 of the revised Octroi Schedule and it was held, on the facts of that case, that in the suit filed by the plaintiff to restrain the defendant, the Octroi Collector, from recovering octroi duty, the new Octroi Collector to whom the contract to collect the octroi was subsequently awarded and the relevant Union Council were proper parties. Hyder Ali Pirzada, J. observed:‑‑ "The expression "questions involved in the suit" means questions as between the parties to litigation with regard to right set up and the relief claimed on one side and denied on the other side." It is clear that new parties were added in order to enable the Court to effectually and fully determine the question arising between the original parties to the suit and that no new point for decision arose by the joinder of new parties. This case, therefore, also does not advance the case of the applicant. As against the above decisions which were relied upon by the applicant's counsel, Mr. Tariq Hussain cited various decisions from the Indian Jurisdiction, wherein it has been held that the expression "questions involved in the suit" refers to the questions between the parties. In the case of Mukhijiramdas Jethanand and others v. Tikamal Mulchand and another (AIR 1935 Sind 194), the facts were that one Kewamal died in 1912 leaving a will providing that the trustees appointed thereunder were to allow use of the residential house to his widow, mother and daughter for lifetime and that after their death, one Chellaram or his heirs shall be the owners of the house subject to performing certain obligations failing which the trustees were to utilize its income from the house for some charitable purposes. After the death of the widow, mother and daughter of Kewamal, the defendant occupied the house and claimed to be entitled to it as an heir of Kewamal. The trustees, thereupon, sued him for possession of the house. An application under Order 1, Rule 10, C.P.C. was made by a daughter of Chellaram to be joined as a party to the suit and it was held:‑ "In the present case the question involved is whether the defendant has a right to stay in the house as provided in the will. That is a simple issue??..If the applicant is the owner under the will, she has to establish her claim. That is entirely a separate matter???To establish ownership of the property, the various clauses of the will have to be construed???.That will be embarrassing the whole procedure of the suit for ejectment and possession and converting it into a suit for determining the rights and liabilities of the two contending parties under the will. This is unwarranted within the scope of Order I, rule 10." Reliance was also placed on Mulla's C.P.C. wherein it is stated, "questions involved in the suit" refer only to questions between parties to the suit. Further, they refer only to questions as between plaintiffs and defendants and not to questions which may arise between co‑plaintiffs or between co?defendants inter se". In Motilal Roshanlal Coal Co. (P.) Ltd. v. District Committee, Dhanbad and others (AIR 1962 Patna 357), was observed, at p.359‑‑‑ "It is be to borne in mind that the suit is by the plaintiff for certain reliefs against ....the defendant and the judgments of the Civil Courts, in such suits, are not judgments in rem, then it follows that the questions involved in the suit are only questions with regard to the right and the relief claimed on the one side and denied or withheld on the other." In the case of B. Somaiah and another v. Smt. Amina Begum AIR 1976 Andhra Pradesh 182, the respondent had filed a suit against Government of Andhra Pradesh to recover possession of certain land or, in the alternative, for compensation on the ground that her late mother Mahbubunnisa was the absolute owner of that land and, after her death, the respondent, being the sole heir, became entitled to it. The petitioners had applied to be added as parties to the suit alleging that they had, during the lifetime of Mahbubunnisa, entered into an agreement for sale of the land. The respondent opposed the application on the ground that there was no subsisting agreement and that the agreement entered into by her mother had been cancelled. It was held:‑‑ "`Questions involved in the suit' refer only to questions between the parties to the suit. They refer only to questions as between the plaintiffs and defendants and not to questions which may arise between a party to the suit and a third party." It was further held that the question involved in that suit was whether Mahbubunnisa was the owner of the suit land and, therefore, the plaintiff was entitled to possession thereof; and that the alleged agreement for sale was not admitted by the respondent/plaintiff the remedy of the petitioners was to file a suit for specific performance. The petitioners were, therefore, held to be neither necessary nor proper parties. The case of Gonsalo De‑Fillonena Luis v. Inacio Piedada Hilderberte (AIR 1977 Goa, Daman & Din 4) is to similar effect. The principle enunciated in AIR 1935 Sind 194 (cited above) was followed in National Bank of Pakistan v. Syed Muzammal Hussain (PLD 1965 (W.P) Karachi 633) and Jan Caterers v. Islamic Republic of Pakistan (PLD 1972 Lahore 169). In the latter case, the plaintiff had entered into a contract for catering in the dining cars of certain trains run by Pakistan Western Railway. The contract, which was for a period of three years, was terminated by the Railways before its expiry. The plaintiff, therefore, filed a suit for declaration that the notice terminating the contract was illegal and for injunction to restrain the Railways from interfering in the enjoyment of the contract. The new contractor to whom the Railways had subsequently awarded the contract applied to be impleaded as a party to the suit. It was held by M.S.H. Qureshi, J. that on the basis of the principles enunciated in AIR 1935 Sindh 194, the applicant was not a proper party. In Muhammad Ramzan v. Nazir Ahmed, 1979 CLC 95, the plaintiff had filed a suit for dissolution of partnership and rendition of accounts; and the defendant No.3 was subsequently impleaded because a receiver had been appointed to take possession of the factory which was his property which he had leased to the plaintiff. It was held:‑‑ "Under Order I, rule 10, when a person is impleaded as a defendant, as respondent No.1 was impleaded in this case, he is so impleaded only for the purpose of settling "all questions involved in the suit". He is not impleaded to introduce new controversies in the suit and change its character altogether, even though the controversies may be relatable to the properties in dispute??.I am of the view that the dispute between the two original defendants and the added defendant was not a "question involved in the suit" and as such the question could not be referred to arbitration under Section 21 of the (Arbitration) Act." In the case of Salahuddin, etc. v. Lahore Municipal Corporation, 1979 CLC 891, the suit had been filed to challenge a notice served by the defendant upon the plaintiff under section 78 (2) of the Municipal Administration Ordinance directing the plaintiff to demolish a wall on the ground that the construction was made without legal sanction of the plan. It was alleged that the notice was mala fide and was intended to benefit a B.D. member who had influence on the defendant. The B.D, member applied to be impleaded as party to the suit. He alleged that the wall in question was constructed on the site of a street leading to his house. Aftab Hussain, J held that the cause of action in the suit was the legality or illegality of the notice and the question whether the site of the wall was part of the street or not was foreign to that cause of action and observed:‑‑ "??.. a person cannot be allowed to be added as a party with a view to add to the cause of action to the suit or to raise questions extraneous to the suit itself." It appears from the above cases that the expression "questions involved in the suit" in Order I, Rule 10 (2), C.P.C. has reference to only those questions which arise between the parties to the suit. 1t may, however, be necessary, in order to effectually and completely determine all such questions to consider points or material which have not been raised or brought before the Court by the parties to the suit but by third parties; and in that case the person who raises such points or brings such material before the Court as is relevant for determining the question involved in the suit is a proper party and may be impleaded as such. Such points or material, however, should not be such as will extend the scope of the controversy between the parties or add a new cause of action unconnected with the original cause of action. The question involved in the present case is whether the plaintiff is the owner of the property and whether he is entitled to the possession thereof; and, as stated above, it is not clear what question arises on the allegations contained in the application of the intervenor/applicant. The only possible question, if any, that may arise is whether the applicant has derived any interest in the property from the plaintiff or the defendant. That, however, is an entirely separate matter and is not a question involved in the suit. Further, the question raised by the applicant is not relevant for determining the controversy between the parties to the suit. The applicant is, therefore, neither, necessary nor proper party to the suit. The applicant appears to be claiming some interest in the property although it is not clear whether the claim is based on the agreement with the plaintiff or the alleged allotment of the property by the defendant. The applicant has no interest in the property by virtue of either the agreement for its sale or the alleged allotment thereof to her by the defendant. In the case of Sh. Muhammad Matin v. Mrs. Kharshed Dosu Marker (1983 C L C 1630) the intervenor applied to be impleaded as parties in a suit between lessor and lessees on the ground that they had agreed to purchase the property in question from the lessors and were likely to be affected by the litigation. It was held by a Division Bench of this Court consisting of Saeeduzzaman Siddiqui, J. (as he then was) and Fakhruddin H. Shaikh, J. that the agreement for sale did not confer any right on the intervenors except the right to file a suit for specific performance; and that they could not be impleaded as parties to the proceedings. In the context of the intervenor's claim to the property reference may be made to the orders passed in this suit on the 20th December, 1990 and the 26th December, 1990 as well as to judgment in H.CA. 243 of 1990 wherein, to say the least, serious doubt has been cast upon it. If the applicant were impleaded as a party to the suit, she would succeed in setting up a new cause of action such as it is; and it is well‑settled that no person can be permitted to become a party to a suit for the purpose of adding a new cause of action. It is also well‑settled that a plaintiff is dominus litis and, ordinarily, no person should be added as party against his wishes. There is nothing on the record of this case to justify departure being made from that rule. Further, it is clear that if the applicant is impleaded in the suit, the trial of the questions involved in the suit would be embarrassed and unnecessary prejudice would be caused to the plaintiff. The intervenor also claims to have been in possession of the property until 30th December, 190 but that claim is belied by the Nazir's report dated the 24th May, 1990, and the orders and the judgments referred to above. It may also be mentioned that the intervenor had earlier filed an application under Order 1, Rule 10, C.P.C. which was dismissed for non‑prosecution as intervenor failed to pay the cost of notice. An application to set aside the order of dismissing of that application was dismissed on 3rd March, 1991, as no ground was disclosed by the intervenor. For the above reasons, the application is dismissed with costs. AA./A‑1154/K??????????????????????????????????????????????????????????? ?????????? Application dismissed.