2006 PLP 605 (MLD)

RAHMAT HUSSAIN JAFFERI, J.

The, intervenor Muhammad Hanif Moosani has filed the present application for joining him as party on the ground that the suit property was actually purchased by him along with defendant No.2 and he had paid the share of 20% in the suit property but the suit property was transferred in the name of defendant No.2, as such, it was a benami transaction in respect of his 20% share. The application is supported by affidavit, deed of partnership and other documents. The plaintiff and defendants Nos.1 and 2 contested the matter. They denied the allegation of the intervenor. The defendant No.2 has specifically denied that the transaction was benami in respect of 20% share of the intervenor. They have filed the counter-affidavits in support of their claims and took legal plea and limitation. I have heard the parties Advocates and gone through the material on the record. The brief facts of the case are that originally the suit property was owned by Abdul Ghani and others who sold it to defendant No. 1 and such conveyance deed was executed on 4th June, 1995. On 5-12-2000 the defendant No.1 sold the suit property to defendant No.2 through a registered sale-deed. The plaintiff filed the suit claiming that the transaction entered into between Abdul Ghani, others and defendant No.1 was benami transaction as he was the actual owner of the property and paid the sale consideration but the sale-deed was executed in favour of defendant No.1. The plaintiff has prayed for the following relief:-- "Declare that the plaintiff is bona fide and lawful owner of the suit property bearing Strop Nos.1 and 2 (office prestises), ground floor constructed on a piece of land bearing Survey No.PR-2/19, Old Survey No.F-13/15-B/1, Abdullah Haroon Road, Preedy Quarters Karachi, measuring 1352 square yards. (a) A decree for specific performance of the agreement dated 12-2-1996. (b) A mandatory injunction directing the defendants to surrender and deliver the originals of conveyance deed dated 15-12-2000 (annexure 'C') and the deed of revocation of power of attorney (annexure 'D') with the further prayer to declare them as illegal, mala fide cancelled and with no legal effect. (c) Prohibitory injunction restraining defendants and/or their agents, attorneys, representatives, employees, servants assignees and/or any other person or persons acting on their behalf or under their control and guidance from dispossessing the plaintiff, his agents, representatives, attorneys and servants in any manner from their suit premises. (d) Further injunction restraining the defendants and their agents, attorneys, representatives, successors, employees, servants, assignees and/or any other person or persons acting on their behalf or under their control, instructions and guidance from alienating or creating any lien, interest, charge, encumbrances, right or entitlement in the suit property. (e) Any other or additional relief as this Hon'ble Court may deem fit and proper in the circumstances of this case. (f) Costs of the proceedings." Parties can be added under Order I, rule 10(2), C.P.C. under which if the Court finds the presence of any person necessary in order to enable the Court to adjudicate upon and settle all the questions involved in the suit effectively and completely then the said party can be added in the suit. In the present case the intervenor has claimed a right in the suit property to the extent of 20% share by claiming that the transaction entered into between defendants Nos.1 and 2 was benami transaction to the extent of his share. The learned advocate for the plaintiff has admitted that he has filed the suit against the defendants to decide his right but the suit is still pending. The Hon'ble Supreme Court considered the question under which the parties can be added, in the case of Uzin Export Import Enterprises v. Union (PLD 1994 SC 1995) in which it has been observed that the term 'questions involved' includes all matters material to the proper decision of the case but the object of making such persons parties is to prevent multiplicity of proceedings. It has further been observed that the person must, therefore, be a person whose interest is likely to be affected even though no relief is claimed against him. I am of the view that it is conducive for the administration of the justice that all parties having interest in the property should be before the Court and heard to defend their rights. In the present case, no doubt, the intervenor is not a proper party as the suit can be decided in his absence, but he is coming within the definition of necessary party whose presence is necessary and his rights, as alleged by him, are involved and the decision would affect his right, therefore, he is necessary party. Nevertheless, it has been admitted by the learned Advocate for the intervenor that the intervenor came to know about the filing of the suit in the year 2000. The present suit has been filed on 18-12-2000 which means that after few days of filing the suit the intervenor came to know about filing of the suit. In para. 9 of the application the intervenor has admitted that the defendants were informing him about the progress of the case but the dispute arose between him and defendant No.2 on 3-12-2004 when he came to know that they had entered into dialogue of settlement with the plaintiff, outside the Court hence he filed the application. In this background the learned Advocate for the defendants Nos. 1 and 2 has stated that even if the intervenor is added as a party then the suit would be time-barred as the time limit for filing of the suit is three years as provided under Article 21 of Limitation Act. The learned Advocate for the intervenor has stated that the dispute arose between him and the defendants in the year 2004, therefore, his rights would not be time-barred. Section 22 of Limitation Act deals with the above situation, which reads as under:-- "22. (1) Where, after the institution of a suit a new plaintiff or defendant is substituted or added, the suit shall, as regard him, be deemed to have been instituted when he was made a party. (2) Nothing in subsection (1) shall apply to a case where a party is added or substituted owing to an assignment or devolution of any interest during the pendency of a suit or where a plaintiff is made a defendant or a defendant is made a plaintiff." Under this provision if a new plaintiff or defendant is added then suit shall be deemed to have been instituted when he was made a party. The Hon'ble Supreme Court of Pakistan in the case of Hayat v. Amir (PLD 1982 SC 167) interpreted section 22 of the Limitation Act and observed as under:--

7. Now according to this section, when a new person is substituted or added as a party in a suit already pending, then the suit as regard him shall be deemed to have been instituted only from the point of time when he is so made a party. In other words for purposes of determining whether the suit qua him is barred by limitation, the time shall be computed as if the suit has been filed by him (if he is a plaintiff), or against him (if he is a defendant), on the date on which he was "so made a party". The word "so" used here evidently refers to his being made a party by 'substitution' in place of another party or by 'addition' as a new party. In the said authority a further question was examined as to whether the party would be deemed to be added on the date when the application was moved or when the order is passed by the Court. The Hon'ble Supreme Court replied the said question that the relevant date for the purpose of limitation would be the date on which application for impleading the new defendant has been made for joining him as party. In the present case the application has been moved on 16-12-2004. The intervenor came to know about the suit in the year 2000 but he has made the application for joining him as a party on 16-12-2004, as such, the application is beyond the period of limitation hence the suit would be time-barred, even if the intervenor is impleaded in the suit. In the light of what has been discussed above the application is dismissed. H.B.T./W-3/K???????????????????????????????????????????????????????????????????????????????????? Suit dismissed.