2010 PLP 763 (YLR)

MAQBOOL BAQAR, J.

Through this application under Order I, Rule 10 C.P.C. read with section 151, C.P.C., applicant Tariq Mehmood Seeks impleadment as defendant. Briefly, the plaintiff has filed the instant suit against her daughter-in-law (Defendant No.1) and paternal grand children (Defendants Nos.2 to 5) seeking a declaration that she being the real owner of three properties as detailed in the plaint and his deceased son, the predecessor-in- interest of defendants Nos.1 to 5 was her benami. Learned counsel for the applicant contends that defendant No.1 had entered into an agreement of sale in respect of one of the properties for self as well as on behalf of the minors (defendants Nos.2 to 5), therefore, the applicant is necessary party and be joined as defendant. On the other hand, learned counsel for the plaintiff has opposed the application by contending that the applicant is neither necessary nor proper party and therefore cannot be impleaded as defendant. In support of his contention, he has placed reliance on the judgment of this Court in the case of Hussain v. Mansoor Ali PLD 1977 Kar. 08 and of Honourable Supreme Court in the case of Uzin Export Import Enterprises for Foreign Trade Karachi v. Union Bank of Middle East Karachi PLD 1994 SC

95. In response, learned counsel for the applicant has, contended that even if the applicant is not, a necessary party but in order to prevent the plaintiff and defendants from obtaining,/ a collusive decree, the applicant may be joined as proper party. I have heard the learned counsel for the respective parties and perused the case-law cited at bar. It is by now well-settled principle of law that a necessary party is one in whose absence no effective decree can be passed whereas a proper party is one whose presence before the Court is deemed necessary in order to enable it to effectually and completely adjudicate upon and settle all questions involved in the suit. It is nobody's case that the applicant is a necessary party, therefore, the only question which requires determination is to see as to whether the applicant is a proper party and his presence in the Court will facilitate to decide all questions arising in the instant suit effectually and finally. A minute perusal of the pleadings in the instant suit reflects that the only question which requires determination appears to be as to whether the predecessor-in-interest of the defendants was holding the said three properties as a benami of the plaintiff or not, whereas the applicant is claiming to have entered into an agreement of sale on 26-11-2004 four years after the institution of the instant suit in respect of one of the three properties with the defendant with full knowledge of plaintiff's claim, but till date has neither filed any suit for specific performance nor can be given any relief in the instant suit, therefore, from no angle I find that the presence of the applicant would facilitate this Court to decide all the questions arising in the instant suit effectually and finally. As to the contention of the learned counsel for the applicant that the parties may in his absence obtain collusive decree to defeat his claim, might have carried some weight in case the instant suit would have been filed after the execution of Sale Agreement but again the question would be as to whether a party who is neither necessary nor proper can be impleaded just to supervise the proceedings in order to watch its interest as pleaded. In my view impleadment of a party on such count is not envisaged under the law, the application being misconceived is hereby dismissed.

2. In view of detailed order, passed at application, listed at serial No.1, this application has become infructuous and is hereby dismissed. Office is directed to fix C.M.A. No.1582 of 2003 on 15-5-2009 after notice to all concern in terms of order dated 4-10-2007 passed in J.M. No.08/2004 and to explain as to why this application was not placed in Court despite order dated 4-10-2007 in this suit. S.A.K/Z-30/K Application dismissed.