1983 PLP 534 (SCMR)

SHAFIUR RAHMAN, J.‑Mst. Khurshid Begum obtained leave to appeal against the judgment of the Lahore High Court dated 2Bth of November, 1973 whereby in a civil revision the order of the trial Court impleading Mst. Khurshid Bibi in a civil suit filed by the respondents, sons of Jalal, was set aside. The leave was granted to examine whether the order of the trial Court impleading her as a party in the suit amounted to "a case decided" to attract the jurisdiction of the High Court under section 115, C. P. C. and whether on the facts Mst. Khurshid was not, in any case, a proper party to the proceedings.''':'' The facts as appearing on the record show that Malku and others, the sons of Jalal, sought possession of a share in joint property equal to 32 Kanals 9 Marlas of agricultural land in village Barmusa, tehsil Phalia, district Gujrat on the basis of being its recorded co‑sharers. They alleged that the respondent Anar was in its possession was denying their title and was not handing over the possession of the property to them. In resisting the suit Anar respondent claimed that he himself was the owner and in the alternative claimed adverse possession over the property. He also claimed that all the recorded co‑sharers were unnecessary parties and the suit was bad in their absence. Four issues were framed on the pleadings of the parties including the one "whether the suit is bad for non‑joinder of necessary parties". Before the evidence of the parties could conclude on these issues an application was filed by Mst. Khurshid Begum on 20th April 1970, praying that she be allowed to be impleaded in the suit. Her claim was based on the fact that in their common ancestor Muhammad Hayat whose estate was held under custom by his widow Mst. Ijjan had died in the year 1951 and she being a grand daughter of a sister of that Muhammad Hayat was entitled to a share in the joint property. In resisting the application the plaintiff's denied any such relationship of Mst. Khurshid Bibi and her locus standi to be impleaded in the suit. A number of witnesses were examined on both sides and thereafter the trial Court came to the conclusion that‑ "If the applicant is proved to be the grand daughter of Hayat Bibi and if Hayat Bibi is proved to be the sister of Hayat the original owner of the suit land then the applicant will get the entire suit land to the exclusion of the respondents. If the applicant is allowed to be impleaded in the suit then her presence would enable the Court to adjudicate all the points involved in the ‑ suit effectually and com pletely." The trial Court concluded by‑holding as follows :‑‑ "The applicant is a person who is legally interested in the matter in dispute. According to her, the result of proceedings of suit will affect her legally. The relief claimed by the respondents (plaintiff's) will directly affect the applicant. Moreover, if the applicant is implicated in the suit, then it will not cause any embarrassment to the parties. For the foregoing reasons, I come to the conclusion that the applicant is a necessary and proper party to be implicated in the suit. The issue is, therefore, decided in favour of the applicant. Consequently I accept the application and implead the applicant as a party in the suit." Against this the plaintiff's went in revision, to the High Court. The learned Judge after examining the controversy held as follows :‑‑ "In my view the learned trial Court has acted illegally and with material irregularity in the exercise of its jurisdiction by introducing a fresh and new cause of action in the suit. It is not denied that the name of Mst. Khurshid Begum or her father or her, grand mother is not there on the revenue record copies of which have been placed on the present record. The right claimed by Mst. Khurshid Begum is also being denied by the petitioners. In these circumstances the only proper course for Mst. Khurshid Begum was to file a suit of her own for either possession of the property on that basis or for a declaration of her right. The title of the petitioners at least to a share in the property is not denied even by Mst. Khurshid Begum. According to law even one co‑sharer can file a suit for possession of the property against a trespasser. I fail to understand how Mst. Khurshid Begum could be deemed to be either a proper or a necessary party. I find that respondent No. 1 had already taken up a plea in his written statement that the other persons whose names appear in the revenue record as owners of the property were also necessary party to the suit. On this plea issue No. 3‑A has been framed to the following effect :‑ Whether the suit is bad for non joinder of necessary parties? O. P. P. This question, therefore, cannot be decided by impleading persons who claim to be co‑owners of the property. It can be decided only after evidence is produced by respondent No. 1 if ultimately the Court finds issue No. 3‑A in favour of respondent No. 1 an appropriate order will be passed by the trial Court at that stage. The inclusion of Mst. Khurshid Begum at this stage is not at all justified in law." The learned counsel for the appellant contended that on facts the plaintiff's traced their interest in the suit property to the same male ancestor from whom the appellant was claiming though they based their interest on the entries of revenue record. This aspect of the case was highlighted by the statement of the plaintiff himself who stated that if the relationship asserted by the appellant were established, they (the plaintiff's) would not be entitled to inherit from Muhammad Hayat. Their title was, therefore, entirely depen dent on the resolution of the controversy raised by the appellant. Their's being a title suit it was already raised in the suit by the defence of Anar defendant. Besides, it was contended that in the background of such facts the order of the trial Court impleading the appellant as a party could not be said to be a case decided so as to attract the revisional jurisdiction of the High Court. In reply the learned counsel for the respondent contended that the appellant was not at all a necessary party, that as against Anar defendant the suit could proceed to a decision even is her absence. Her induction at this stage of the proceedings would lead to misjoinder of causes of action and parties and would force the litigation initiated by the plaintiff's into channel not of their own choosing nor related to the cause of action of the suit itself. The objection with regard to absence of the recorded co‑sharers has already been raised by Anar defendant. It is already the subject‑matter of issue. The claim of the appellant is that of being a co‑sharer of the party, though not recorded so in the revenue record. Khan Muhammad, one of the plaintiffs appeared as R. W. 3 and Made a statement that if it was proved that Hayat son of Daim left a sister then the plaintiffs would not inherit anything. Though this statement was retracted by him in the very next breath, it establishes that the said property was the estate of Daim, that the appellant and the plaintiffs were both claiming from him and that the person in possession that is Anar defendant was supporting the cause of the appellant for the same Muhammad Khan alleged that Anar defendant had prompted the appellants to lay such a claim. This state of affairs in a title suit‑occupant being sued by a co‑sharer as a trespasser on the basis of his title, the trespass denying the title, a third party claiming to be co‑sharer acting in concert with the alleged trespasser against the co‑sharer‑makes the appellant a necessary or in any case a proper party to the litigation. Her being impleaded at this stage will definitely eliminate multiplicity of litigation and enable full and proper adjudication of the factual controversy raised in the suit. Judged in this context, the impugned action of the trial Court was, an exercise of judicial discretion which was based on proper consideration, There cannot be said to be any error or material irregularity in its exercise to attract the revisional jurisdiction of the High Court. The plaintiffs will still be required to prove what they are required to prove in the suit against Ana4 defendant, their title and the character of possession of Anar. The larger question whether the decision on such an application as was made by the appellant amounts to a "case decided" or not need not be in view of the opinion that we have formed recorded at great length. Suffice it to say that an order directing .he impleading of a party in a pending suit would not ordinarily amount to a case decided unless it has directly the effect of injuring the rights claimed or liabilities of the parties to the litigation. If it has any prejudicial effect then insofar as the decision causes the prejudice would be a case decided and would attract the revisional jurisdiction of the High Court. Where, however, no such sinister effect is created on the right and obligations of the parties and in fact advances the cause of justice shortens the litigation and eliminates its multiplicity, it would not amount t a case decided, for it will be only a procedural step directed to achieve the end of the litigation without impairing any of the rights or obligation stricto senso. In view of the foregoing discussion, we accept the appeal, set aside the judgment of the High Court and restore the order of the trial Court with regard to the appellant being impleaded as a party in the suit instituted by the respondents. In the circumstances of the case the parties are left to bear their own costs. Appeal accepted.