2007 PLP 160 (CLC)

MIAN SAQIB NISAR, J.

Respondents Nos.1 to 8 brought a suit for the declaration, with the consequential relief of possession, regarding the suit-land against the appellant. It is the claim of the plaintiffs that they are the owners of the suit-land; have never appointed anyone as their attorney, thus, the sale of the land made in favour of the D.H.A. by such attorney, is based upon fraud, misrepresentation and the transaction is totally bogus and ingenuine. The appellant defended the matter; filed the written statement; issues were framed; parties were put to trial and the learned Civil Judge, vide judgment and decree, dated 14-5-1992, has passed the decree in favour of the respondents/plaintiffs and against the appellant. In the connected appeal, the appellants were also joined the defendants and thus, they have also felt aggrieved of the same judgment and decree of the learned Civil Judge, dated 14-5-1992.

2. Learned counsel for the appellants states that vide statement of the defendant/Society made before the Court on 7-2-1988, it was pointed out that the land in question in the shape of the plots, after its development, has been transferred in the name of various persons, the list of such persons was also provided in the Court and despite a request having been made in this behalf, that they should be joined as a party to the suit, and without them, the suit is not competently instituted, the respondents/plaintiffs took no step to implead them as the defendants. It is, therefore, submitted that in fact it/ is the rights of such transferees/ allottees of D.H.A., which shall be effected on account of the impugned declaratory decree though, under the provisions of section 43 of the Specific Relief Act, such shall not be binding upon them. But in any case, in the absence of the necessary party (the transferees) to the suit, the suit was incompetent and it was also the duty of the Court below, besides the plaintiff, to have joined such persons as the defendants.

3. Learned counsel for the respondents, on the contrary, has submitted that in the written statement, the appellant had never raised the objection that the suit is bad for non-joinder of any of the defendants. It is for such reason that the issue was not framed and resultantly, the plea now raised by the appellant is an afterthought. It is also submitted that the transferees Of the property are the successors of the appellant and therefore, the decree shall be binding upon them.

4. We have heard learned counsel for the parties. According to the law, all the parties necessary to the cause should be joined and in case, they are omitted, the suit is bad for non-joinder of the necessary parties and no effective decree in such circumstances, can be passed. Undoubtedly, the land in issue after its development in the shape of plots, have been transferred to various persons, even before the institution of the suit, which was brought on 18-11-1987 and thus, it is such persons, who shall mainly be affected on account of the decree; they were therefore, necessary party and should have been joined as defendants and in their absence, the suit was not competently instituted, therefore, the Court while exercising its duty under the provisions of Order I, rule 10, C.P.C. should have directed the respondents/plaintiffs to have joined them as a party, notwithstanding, any objection was raised by the appellant, or not, particularly, in the situation, when the appellant B had apprised the Court that part of the property, stands transferred in favour of the various persons/allottes of the D.H.A., even before the institution of the suit, therefore, such judgment and decree. In absence of necessary party, cannot sustain, we accordingly, set aside the same and remand the matter to the learned trial Court, with the direction that the persons, to whom the allotment has been made by the D.H.A., should be joined as defendants and after summoning them, the suit of the respondents/ plaintiffs, be decided afresh. As the matter is pending since long, we expect that the learned trial Court shall decide the same expeditiously. This appeal is accordingly allowed. F.B./L-19/L???????????????????????????????????????????????????????????????????????????????????????? Case remanded.