P L D 2011 Karachi 281 (PLP)

MUHAMMAD TASNIM, J.

Through this order, I will dispose of application' (C.M.A. No.237 of 2009) under Order I Rule 10, C.P.C., filed by applicant Major (Retd.) Ajab Khan. The facts briefly stated, as per plaint, are as under: The plaintiff claims to be owner of two residential plots being Plot Nos.57, 29th Street, Phase-V, measuring 1000 Sq. yards and Plot No.39-B, 'Q' Street, Phase-VI, measuring 1000 Sq. yards and three commercial plots being Plot No.131-C, Jami Commercial Street-14, Phase-VI, measuring 200 Sq. Yards, plot No. C-6, Nishat Lane No.1, Phase-VI, measuring 200 Sq. Yards and Plot No.129-C, Jami Commercial Street-14, Phase-VI, measuring 200 Sq. Yards D.H.A Karachi. It' is claimed by the plaintiff that plaintiff had purchased Plot No.57, 29th Street, Phase-V, from flight Lt. Shamsuddin Ahmed and Plot No.39-B, 'Q' Street, Phase-VI, was purchased by plaintiff from Lt. Perveen Akhtar Bhatti and Plot No.131-C, Jami Commercial Street-14, Phase-VI, was purchased by plaintiff from Major Mir Baz Khan. Plot No.C-6, Nishat Lane No.1, Phase-VI is claimed to have been purchased by plaintiff from Capt. Ahmad Mahmood and Plot No.129-C, Jami Commercial Street-14, Phase-VI is claimed to have been purchased by the plaintiff from Capt. Ajab Khan. As per claim of the plaintiff all the plots stood transferred in the name of plaintiff. It is the case of the plaintiff that plaintiff has been requesting defendant authority and waiting to get certain documents from the authority in respect of some other properties when D.H.A wrote a letter dated 26-5-2005 to the plaintiff in respect of aforementioned plots. Two other plots were also mentioned in that letter. Through this suit the plaintiff has prayed that a declaration be made by declaring the letter dated 26-5-2005 having been issued by the defendant mala fide and without any lawful authority and the same be declared to be of no legal effect. Letter dated 26-5-2005 issued to the plaintiff is quoted hereunder: "To: Mrs. Ilyas Begum 827/10, Azam Basti, Karachi. Subject: CANCELLATION OF PLOTS - EXECUTIVE BOARD MEETING No. 2/2005 HELD ON 3RD MAY, 2005 Dear Madam, Reference: Executive Board Meeting No.2/2005 held on 3rd May, 2005. The Executive Board of DHA has cancelled the following plots held in your name. (a) Plot No.169, Kh-e-Hilal, Phase-VI, measuring 689 Sq Yds. (b) Plot No.13, 11th Zamzama Street, Phase-V, measuring 600 Sq Yds. (c) Plot No.57, 29th Street, Phase-V, measuring 1000 Sq Yds. (d) Plot No.39-B, 'Q' Street, Phase-VI, measuring 1000 Sq Yds. (e) Plot No.131/C, Jami Comm Street-14, Phase-VI, measuring 200 Sq Yds. (f) Plot No.C-6, Nishat Lane No.1, Phase-VI, measuring 200 Sq Yds. (g) Plot No.129/C, Jami Comm Street-14, Phase-VI, measuring 200 Sq Yds. Please return original Transfer order of above mentioned plots for cancellation." Along with this suit an application under Order XXXIX Rules 1 and 2, C.P.C, was also filed by plaintiff, praying therein that defendant authority be restrained from acquiring any right by way of allotment/transfer and/or creating third party interest in the suit property. This application was contested by the defendant authority. However by consent of the parties, per order dated 16-1-2006 such application (C.M.A.No.6975 of 2005) was granted and parties were directed not to create third party interest in the suit plot pending final adjudication of the case. In this suit issues were settled on 17-4-2006 and learned Commissioner was appointed to record the evidence of the parties. The 'learned Commissioner recorded the evidence and submitted his report on 20-6-2007 which was taken on record on 6-8-2007 and the matter has been coming-up for arguments of the parties. On 13-1-2009 an application under Order I Rule 10, C.P.C. was filed by Major Retd. Ajab Khan, stating therein that he is retired Army Officer and settled in Taxila. He has stated that he had applied ,for residential plot to D.H.A and he was made a regular member vide membership No.A-14965. He further stated that recently applicant visited the office of D.H.A and met the concerned officer, who had advised him to become party in the present suit. As according to applicant, Plot No.129-C, Jami Commercial Street-14, Phase-VI, measuring 200 Sq. Yards D.H.A Karachi has been allotted to the plaintiff on the basis of bogus application and Transfer documents., It has been alleged in the application that on perusal of the Transfer documents it has been revealed that all the Transfer documents are bogus and his signatures on the transfer documents are, different to his own signatures. Applicant has further claimed that he is necessary party for proper adjudication of the controversy between the parties. Finally he prayed for joining him as party to the proceedings. After service of the application upon the plaintiff, counter-affidavit was filed by plaintiff who denied the allegations of the applicant made in the application under disposal. It was stated in the counter-affidavit that through this suit illegal action of cancellation of plots by D.H.A has been questioned and the applicant has no concern with the cancellation or the controversy, which is subject-matter of the suit. It is further stated in the counter-affidavit of the plaintiff that the plot in question was allotted in 1976 and D.H.A transferred it in the name of plaintiff on 20-3-1978. It was further stated that at the time of transfer the present applicant was duly informed about the transfer of the plot in the name of plaintiff. It is further stated in the counter affidavit that applicant does not have any genuine or bona fide claim over the suit property and he cannot be joined as party in the proceedings. It is further stated in the counter-affidavit that after a lapse of 3 years applicant has come forward to become party in the suit. It is further stated that present suit is pending since 2005 and applicant has filed present application in the year, 2008, delay in filing the application has not been explained hence application is liable to be dismissed. On receipt of copy of counter-affidavit applicant filed rejoinder, wherein he maintained his claim as mentioned in the application under Order I Rule 10, C.P.C. and its supporting affidavit. The applicant once again mentioned in Paragraph 2 of rejoinder that he is necessary and proper party and this application be allowed and applicant be joined as party in the present proceedings. Mr. Nazar Hussain Dhoon, learned counsel for intervenor/applicant has submitted that D.H.A has transferred the plot in question in the name of plaintiff in fraudulent manner and applicant has never signed any document transferring the Plot No.129-C, Jami Commercial Street-l4, Phase-VI, measuring 200 Sq. Yards D.H.A Karachi in favour of plaintiff. Learned counsel has further submitted that present proceedings were not in his knowledge and he came to know about the pending proceedings in December, 2008 and filed present application on 13-1-2009 hence provisions of section 22 of the Limitation Act, 1908 will not come in the way of applicant. Learned counsel further submitted that applicant is "proper party" hence even otherwise provision of section 22 of the Limitation Act, 1908 will not apply, as the same are applicable only in the case of "necessary party". In support of his contention learned counsel has relied upon the following case law: (1) Sheo Prasad v. Mt. Parkash Rani and others (AIR (30) 1943 Oudh 164), (2) Mt. Bas Kuar v. Gaya Municipality and others (AIR 1939 Patna 138), (3) Secretary of State v. Dhirendra Nath Roy and others (AIR 1934 Calcutta 187). On the other hand Mr. Sardar Muhammad Arif Khan, learned counsel for plaintiff has vehemently opposed the grant of application on the ground that plaintiff owns the plot in her own right and having purchased the same against the valuable consideration, but due to illegal act of cancellation of the plot in the name of plaintiff, this suit has been filed against D.H.A challenging the validity of cancellation order dated 26-5-2005. Learned counsel has further submitted that applicant is neither necessary party nor proper party. Plot in question was allowed to applicant in the year, 1976, same was transferred to the plaintiff on 20-3-1978, mutation order was effected in favour of plaintiff on 30-7-1980 and ever since the date of cancellation of plot, plaintiff was holding the plot in her own right, but applicant has never come forward claiming his entitlement upon the plot in question and has neither approached the plaintiff nor D.H.A. He has further stated that even otherwise, if present applicant is joined as defendant in the proceedings, no relief can be granted to him. He further submitted that either the suit filed by the plaintiff will be decreed or it will be dismissed, but in both the situations applicant will not get anything out of these proceedings. Learned counsel fox' plaintiff further stated that provisions of Section 22 of the Limitation Act, 1908 will apply to the parties either they are joined as plaintiff or defendants. If applicant is joined as defendant through this application, no relief in, law can be granted to him. Learned counsel in support of his contention has relied upon the following case law: (1) Ramprasad Dagaduram v. Jijaykumar Motilal Hirakhanwala and others (AIR 1967 Supreme Court 278), (2) Hayat and others v. Amir (P.L D 1982 Supreme Court 167), (3) Muhammad Ashraf and others v. Azad Government of the State of Jammu and Kashmir and others (PLD 1985 SC (AJ&K) 102), (4) Altaf Parekh v. Delments Construction Company (1992 CLC 700), (5) Khayuaban-e-Iqbal (Pvt.). Ltd. and others v. Mustafa Haji Muhammad (1996 CLC 1758), (6) Rafique Ahmad Chaudhry v. Ahmad Nawaz Malik and others (1997 SCMR 170) (7) Messrs Mona Lisa Fruit Juice Industries Ltd. v. Government of Sindh and others (1998 MLD 9), and (8) Waseem Haroon v. Abdul Shakoor Tabbani and another (2006 MLD 605), Mr. Raja Sikandar Khan Yaser, Advocate for defendant/D.H.A was present on 24-1-2011 when arguments of learned counsel for intervenor were partly heard and at the request of learned counsel for plaintiff matter was posted to 8-2-2001. On 8-2-2001 learned counsel for defendant/D.H.A remained absent and arguments of parties present in Court were heard. I have heard the learned counsel for the parties and have perused the record with their assistance and have gone through the case law cited at the bar. From the perusal of the record, it appears that Plot No.C-129-C, Jami Commercial Street-14, Phase-VI, measuring 200 Sq. Yards was originally allowed to the applicant vide allotment order dated 15-9-1976. It further appears that D.H.A had issued transfer order transferring plot in question from the present applicant to the plaintiff vide transfer order dated 20-3-1978, copy whereof appears to have been forwarded to the applicant. Mutation was also effected in favour of the present plaintiff on 30-7-1980, but till 1980 no action, whatsoever, appears to have been taken by the applicant in respect of suit plot. The action for cancellation of plot was alleged to have been taken by D.H.A on 26-5-2005. Present suit was filed in Court on 3-9-2005 but applicant did not come forward nor placed anything on record to show that he has taken steps before the D.H.A in respect of plot in question between the period from 1976 till the passing of impugned order dated 26-5-2005. Perusal of the application under disposal shows that no specific date of knowledge of pendency of the suit has been mentioned nor any explanation by the applicant has been offered to file this application in the year, 2009. The examination of provisions of Order I, Rule 10, C.P.C. shows that necessary party is one who ought to have been joined and in whose absence no effective adjudication can take place or decree passed while proper party is the party whose presence is necessary before the Court in order to completely and effectually adjudicate upon and settle all questions involved in the suit. Only those persons are necessary or proper parties to the proceedings whose interests are challenged in the suit and without their presence the suit could not be decided on merits. If the dispute in a suit can effectually be adjudicated upon in absence of a person such person is not a necessary party to be impleaded in the suit. Mere fact that person may, by some chance, became interested, in claiming property adversely to plaintiff is no ground for his being so impleaded because that would necessitate importation of facts not formed in the suit. In the present case, it is claim of the plaintiff that she had purchased the plot in the year 1978 and the same was transferred on 20-3-1978 in her name. It is further case of the plaintiff that mutation was effected in the name of the plaintiff on 30-7-1980 and eversince then the plaintiff was holding the plot in question in her own right. Finally, on 26th May 2005 when defendant-authority issued letter whereby plots mentioned therein stood cancelled. Through this suit the plaintiff has prayed for a declaration that letter dated 26th May, 2005 has been issued by the defendant mala fide without any legal authority and same be declared to be of no legal effect. In addition to above declaration permanent injunction has prayed for as also a direction to the defendant to execute lease in respect of suit plot in favour of plaintiff. If this application is allowed and applicant/intervenor is joined to the proceedings no fruitful result can be achieved as the point involved in the suit can independently be adjudicated upon without the presence of the applicant. As mentioned above, necessary party is one who ought to have been joined and in whose absence no effective adjudication can take place or decree pass. While proper party is the party whose presence is necessary before the Court in order to do complete and effectively adjudicate upon the questions involved in the suit. I am of the view that applicant is neither a necessary party nor proper party to be joined on the proceedings. The judgments cited by learned counsel for the applicant are distinguishable on facts and do not support the case of present applicant whereas judgments cited by learned counsel for the plaintiff are attracted in the circumstances of the case. In the case of Altaf Parekh (supra) while dealing with the provisions of Order I Rule to C.P.C. a learned Single Judge of this Court (as he then was) has held as under:-- "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. It 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 point 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." In the case of Waseem Haroon v. Abdul Shakkor Tabbani (2006 MLD 605) 'a learned Judge of this Court (as he then was) while dealing with the provisions of section 22 of the Limitation Act with reference to an application under Order I Rule 10, C.P.C. and while relying upon a Judgment of Hon'ble Supreme Court of Pakistan has observed as under:- "22. (i) 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 (i) 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." In view of above settled legal position the application filed by the applicant/intervenor under Order Rule 10, C.P.C. has no merits as the f same was filed by the present applicant beyond the period of limitation hence the suit would be time barred, even if the applicant is impleaded as defendant in the suit. From the perusal of record it further appears that evidence of the parties has been recorded and matter is riped for final arguments and if applicant is allowed to be added at this stage of the proceedings serious prejudice shall be caused to the present plaintiff. In the circumstances the application filed by present applicant merits no consideration and the same is accordingly dismissed. S.A.K./I-13/K Application dismissed.