P (PLP)

Zaidi, for Inamullah, for Plaintiff. Azis, for Defendant. Mohammad Sadiq, for Applicant. ORDER.

‑This is application made by applicant under O. I, r. 10, Civil Procedure Code to be joined in the suit as party defendant. It arises out of the following circumstances. On 1st S9ptember 1949 the Rent Controller made an allotment order of fiat No. 1 on the first floor of Bungalow No. 60 on Kitchlu Road in Amil Colony No. 2 to the plaintiff and endorsed it as a provisional allotment for three months saying that Hotchand A. Mehtani who was the previous occupant would return after that period. The plaintiff went into occupation and remained there as the previous occupant did not return. The defendant was then in occupation of the ground floor of Bungalow No. 307, Udhew Cottage at the corner of Lawrence and Britto Roads, Karachi. On 17th November 1949, the Rent Controller issued an allotment order in favour of, the defendant for the premises which the plaintiff was occupying and issued one in favour of the applicant in respect of .the premises which the defendant was occupying. Upon that, the plaintiff, filed this suit for a declaration that the allotment order made in favour of the defendant in respect of the premises in possession of the plaintiff is illegal, and for an injunction restraining the defendant from obtaining possession upon it. The applicant claims that the defendant is in collusion with the plaintiff and the parties to the suit will defeat his rights under the allotment order in his favour; unless the applicant is made party defendant to the suit. The application is opposed by both the plaintiff and the defendant. The plaintiff takes the stand that he has no claim whatever to make against the applicant and that the applicant has no legal interest in and is not affected in law by the allotment order in favour of the defendant, the legality of which ‑be questions in this suit. The defendant takes the stand, that he is not interested in throwing the plaintiff out of his house and that he never sought any allotment order in his favour in respect of the premises occupied by the plaintiff: He wishes to remain in the premises where he is and as to which he says he has a valid allotment order. He joins the plaintiff in the contention that the applicant is not in law affected by the legality or otherwise of the allotment order made in favour of the defendant in respect of the premises occupied by the plaintiff, and adds, that in effect be wish ing to become a defendant in this suit, the applicant wants to compel the defendant to move out of the premises presently in his occupation even though he has the right to continue to live in it. The reply made by the applicant to these contentions is that the two allotment orders dated 17th November 1949 in favour of the defendant and the applicant are part of one and the same transaction effected by the Rent Controller and that if the allotment order in favour of the defendant were to be held illegal in this suit, then we would be prejudicially affected in relation to the allotment order in his favour. The question there is one of interpretation of O. I r. 10; sub rule (2), Civil Procedure Code. It has not been contended that the applicant is a necessary party to the suit. The question is whether, he is a proper party and that must depend upon whether the Court considers the presence of the applicant in the suit before it is necessary in order to enable it effectually and completely to adjudicate upon and settle all questions involved in the suit. Now the question involved in the suit is the legality of the allotment order in respect of the premises in occupation of the plaintiff issued in favour of the defendant, and this is matter very different from the legality of the allotment order in respect of the premises in occupation of the defendant issued in favour of the applicant for the legality of each of these allotment orders must depend upon the circumstances relating to each of the two separate premises. Here the plaintiff has chosen to come to Court to question the validity of only that allotment order which effects him, namely, that which relates to the premise4in his own occupation, and he is entitled to say that the decision as to the legality of that allotment order in this suit is a matter which does not effect the validity of the allotment order in‑favour of the applicant relating to the premises in occupation of the defendant. It may be that the applicant will find a decision in favour of the plaintiff in this suit inconvenient in the sense that it will leave no room for the effectuation or carrying out of the allotment order in his own favour ; but that is a different thing from saying that the decision will affect his rights in respect of the allotment order made in his own favour. The only right the applicant has is that which the allotment order made in his own favour gives to him, and I do not see that the question of any claim based upon that right is involved in this suit. I now come to the consideration of cases bearing on the point before me. In I. L. R. 50 Mad. 35 Srinivasa‑Ayyanger, J., held that the words " the questions involved in the suit " appearing in O. I; r. 10 in sub‑rule (2) refer only the questions as between the parties to the suit ; but the Jackson, J. points out in 53 Mad. L. J. 269 at p. 271, the case reported in 5 Mad. 52, is authority for guarding against reading the words " between the parties to the suit" into O. 1, r. 10 where they do not appear. Montgomery v. Foy, L. R. (1895) 2 Q. B. 321 and Vydianadayyan v. Sitaramayyan, I. L. R. 5 Mad. 22, are cases in which the third party was joined because this claim arose out of the subject‑matter in suit, in the former, out of a contract of affreightment, and in the latter out of a bond. The case before me does not fall within the princi ple of these two cases. Nor is it covered by Esquimalt and Nanaimo Railway Co. v. Wilson, L. R. (1920), Appeal Cases 358 where in the event of the plaintiff succeeding, the rights existing in the third party would have ceased. It seems to me that the plaintiff could not have joined the applicant as a defendant in this suit having regard to the provisions of O. I r. 3 Civil Procedure Code, since the plaintiff has no right tat relief against the applicant in respect of the allotment order in favour of the defendant, and none whatever in respect of the allotment in favour of the' applicant for premises in occupation to defendant, and it seems reasonably clear that no common question of law or‑fact would have arisen if, nevertheless separate suits had been brought by the plaintiff against the defendant and the applicant. Having regard to the cases in I . L. R. 18 All. 306 and 53 Mad. L. J. 269, it seems to me that if any joinder of the applicants had been made it would have been bad in law. I think, therefore, that the joinder of the applicant should be refused and I dismiss his application with costs. A. H. Petition dismissed.