P L D 1969 Karachi 436 (PLP)

(a) Letters Patent (Lahore), Cl. 10 read with Sind Courts Act, 1926, S. 14

"Within Court" appellate jurisdiction provided by Cl. 10‑Applicable to judgment given by. Karachi Bench as well even if S. 14,‑Sind Courts Act, 1926, be held, to be still in force. A Letters Patent Appeal was resisted as being incompetent on the ground that clause 10 of the Letters Patent (Lahore) was not at all applicable to the judgment given by Karachi Bench of the West Pakistan High Court on the original side. It was urged that section 14 of the Sind Courts Act, 1926, which provided for appeal against the decrees and orders by Single Judge of the High Court was still in force and so it excluded the application of clause 10 in respect of judgment delivered by Karachi Bench of the High Court of West Pakistan: Held, although para. 5 of the High Court of West Pakistan (Establishment) Order (XIX of 1956), kept intact the jurisdiction of the Karachi Bench by reference to section 8 of the Sind Courts Act, 1926, neither this para. nor any other provision in the Parent Act nor in this Order, provided for the retention of the within Court appellate jurisdiction of the Karachi Bench under section 14 of the Sind Courts Act. Had it been so, the same could have been very easily provided in para.

5. The omission in this behalf is very significant. On the contrary, para. 9 read with para. 3 specifically provided for the conferment of the jurisdictions, powers and authority on the High Court of West Pakistan (which included all its Benches), as were available to the Lahore High Court under the Letters Patent. The, within Court, appellate jurisdiction, as provided by clause 10 of the Letters Patent would, therefore, by necessary implication and intendment, be held to have been conferred on the Karachi Bench also, in respect of all the territories, including Karachi, within its jurisdiction. Section 14 of the Sind Courts Act, even if in force, will have to be subordinated to clause 10 of the Letters Patent, which has been applied by the force of the powers granted by section 7 of a constitutional enactment i.e. Establish ment of West Pakistan Act, 1955. Firdom Trading Corporation and others v. Japan Cotton & General Trading Co. Ltd. P L D 1961 Kar. 565; Mumtaz Khan v. Chief Settlement and Rehabilitation Commissioner and another P L D 1966 S C 276 and Shakoor Hasam Patel v. Muhammad Hussain Shakoor and another P L D 1957 Kar. 435 ref. (b) Civil Procedure Code (V of 1908), O. I, r. 10 and Letters Patent (Lahore), Cl. 10‑Order of Court refusing permission to person to be impleaded as party to suit‑"Judgment" within meaning of Cl. 10 of Letters Patent (Lahore). Hoshang Dastur and others v. Eddie P. Bharucha and another P L D 1968 Kar. 761; Firm Shaw Hari Dial & Sons v. Messrs Sohna Mal Beli Ram A I R 1942 Lah. 95 and C. E. Dooply and others v. M. E. Moola and others A I R 1927 Rang. 180 ref. Ramswami Chettiar v. Roya Kanniappa Mudaliar and 2 others I L R 54 Mad. 491 held not relevant. (c) Interpretation of statutes‑ Repeal‑Does not, in absence of intention to contrary, revive anything not in force or existing at time of repeal. (d) Civil Procedure Code (V of 1908), O. I, r. 10‑Court empowered to add party to suit for effectually deciding "all points involved in suit"‑Suit for specific performance of contract‑Party to be impleaded may not be "party interested in contract". Where it was contended that in a suit for specific performance of a contract, only parties interested in contract are necessary parties Held, Order I, rule 10, C. P. C., specifically empowers a Court to add a party to the suit for the purpose of effectually deciding "all the points involved in the suit". The phrase "all the points involved in the suit" does not mean "all the points that are raised by parties". The phrase is not amenable to any such restricted meaning. All the points, though not raised as between the parties themselves, as are material to a proper decision of the suit, are necessarily points "involved" in the suit. It is obvious that, being a discretionary relief, a Court of law has full discretion to allow or refuse specific performance, if circum stances justify such refusal although the contract may be free of any legal defect. V. R. S. S. Chidambaram Chettiar v. P. L. N. K. Subrama niam and others A I R 1927 Mad. 834; Rangaya Reddi v. Subramaniya Ayyar 40 Mad. 365; Prem Sukh Gulgulia and another v. Habib Ullah and others A I R 1945 Cal. 355; Mst. Nag! and another v. Damodhar Jagobaji Tidke and others A I R 1948 Nag. 181; Jamilur Rehman v. Muhammad Asghar and others P L D 1968 Lah. 1076 and Mir Hasmat Ali v. Birendra Kumar Ghosh and others P L D 1965 Dacca 56 ref. JUDGMENT MUHAMMAD AFZAL ZULLAH, J.‑Syed Jalilur Rahman (respondent No. 1) filed a suit for specific performance of a contract of sale in respect of half of the property in dispute, basing his claim on an agreement, dated 24th February 1964; against his real brother Syed Saeedur Rahman (respondent No. 2), on 21st February 1967. The other half, it was averred in the plaint, belonged to the plaintiff as the whole of the property was jointly owned by both the parties in equal shares. Saeedur Rahman filed written statement on 16th May 1967, inter alia, pleading that he had gifted the property to his own daughter Mst. Saeeda Khatun, and also that, in reality, the entire property was purchased with the joint funds of all the heirs of Mst. Khatun Zamani Begum, the mother of both the parties in the suit; although it was purchased jointly only in the name of the plaintiff and the defendant. The defence further proceeded that "the plaintiff proposed that in order to avoid claims from other heirs of Mst. Khatun Zamani Begum the property in dispute be transferred to him and a regular deed executed between the parties in order to avoid claims of other heirs". Eight issues were framed on 9th September 1967, at the suggestion of the plaintiff which included two issues relating to the above‑mentioned gift to Mst. Saeeda Khatun and the share of the other heirs of Mst. Khatun Zamani Begum. They are issues Nos. 2 and 3 which are reproduced below: (2) Was the property gifted and possession thereof delivered to Mst. Saeeda Khatun by the defendant before 24‑2‑64 and was it expressly agreed between the parties that if Saeeda Khatun refused to transfer the property to the defendant, the agreement in question will be null, void and inoperative as alleged in paras. 1,0 and 11 of the Written Statement? (3) Was the agreement for sale dated 24‑2‑64 executed between the parties to avoid claims of other heirs of Khatun Zamani Begum under an oral agreement mentioned in para. 10 of the written statement?

2. On 16th October 1968, the above named Mst. Saeeda Khatun filed an intervener application under Order 1, rule 10 and section 151, C. P. C. for being impleaded as a defendant in the suit on the basis of the gift mentioned above. On 10th December 1968, Mst. Asghar Jehan Begum, claiming to be a sister of the plaintiff and the defendant, filed a similar applica tion for being impleaded as a defendant on the basis of the fact that she being an owner to the extent of 1/10th share in the property in dispute was interested in the suit as a necessary party. In the affidavit accompanying this application, various items of evidence of the ownership of the intervener were mentioned; one of them being that by a written agreement, dated 3rd April 1951, a family settlement took place in which it was acknowledged that the intervener had 1/10th share in the property in dispute. A copy of the agreement (described as corroboration of family settlement) was filed in the Court along with the affidavit. Both the intervener applications came up for consideration before a learned Single Judge of this Court who, by the order, dated 10th December 1968, allowed the application of Mst. Saeeda Khatun who was impleaded as defendant No. 2 and rejected the application of Mst. Asghar Jehan Begum. Aggrieved by that order, Mst. Asghar Jehan Begum has filed this letters patent appeal, impleading her brothers Jalilur Rahman and Saeedur Rahman (the plaintiff and the defendant respectively) as respondents Nos. 1 and 2 and Mst. Saeeda Khatun as respondent No. 3.

4. According to the affidavit filed by respondent No. 1 in reply to the averments made in the memo of appeal, the precise objection was that the impugned order was not a judgment within the meaning of clause 10 of the letters Patent. During the arguments however the learned counsel added another ground that clause 10 of the Letters Patent was not, at all, applicable to the judgment given by the Karachi Bench of the West Pakistan High Court on the original side (relating to the Federal Area as it existed in 1955); and that an appeal against the judgment of a learned Single Judge in such a case was competent only under section 14 of the Sind Courts Act, 1926; which, according to him, provided that only such decrees and orders were appealable, as .were appealable under the Civil Procedure Code. And because, a argument further proceeds, an order refusing to implead a party was not appealable under Order XLIII, rule 1, C. P. C., therefore section 14 is a statutory bar against the present appeal. "from any original decree or". "14. (1) Appeal from original civil jurisdiction of Chief Court. Except as otherwise provided by any enactment for the time being in force, an appeal (from any original decree: or) from any order against which an appeal. is permitted by any law for the time being in force made by a Single Judge of the Chief Court, shall lie to a Bench consisting of two, other judges of the Chief Court. (2) (The words omitted have been shown in brackets). The above amendments do not conclude the matter unless another enactment is referred to. That is the Karachi. Courts. Order (No. II of 1956) promulgated by the President on 20th April 1956, under Article 211 of the Constitution of 1956. Under that Article, Parliament was to make law for the determination of the area of the Federal Capital, but till then the area which immediately before the Constitution day (23rd March 1956) was comprised in the Capital of the Federation, was to continue as Federal Capital. The President was empowered, by Order, to make provisions for the Federal Capital in respect of many matters including "with respect to the jurisdiction, expenses or revenues of any Court exercising the jurisdiction of a High Court therein". Section 2 of this Order amended several provisions of the Sind Courts Act including section 8; did not amend section 14 as it then existed. Section 8, it may be noted, dealt with the exercise of the original jurisdiction, earlier, by the Sind Chief Court and, at the relevant time, by the Karachi Bench of the West Pakistan High Court. It may also be noted that section 8 did not deal with the question of appeals from original decrees or orders passed by the High Court. The learned counsel argued that President's Order No. II of 1956 by implication, repealed the Karachi Courts Ordinance, 1955, and the effect of this repeal was, according to him, the restoration of the words "from any original decree or" in section 14 of the Sind Courts Act. If that is so, the whole of section 14, by virtue of the President's Order, remained intact, and with that the within Court appellate jurisdiction for the West Pakistan High Court Karachi Bench, within the Federal Capital Area, remained to be governed and limited by that section only. In such a situation, according to the learned counsel, clause 10 of the Letters Patent will not apply and this appeal, which has been admittedly filed under clause 10, will be incompetent.

6. The learned counsel failed to bring to our notice the other provisions of several law relating to the question in issue which, in my view, are directly applicable and will determine this question. However, it will not be out of place to deal with the argument on the basis of the law relied upon by the learned counsel. The reason why .the learned counsel was constrained to build a lengthy argument for restoration of the omitted words from section 14, by the Karachi Courts Ordinance, 1955, is obvious. If those words remain omitted, the within Court appellate jurisdiction will be confined only to orders "against which an appeal is permitted by any law for the time being in force". Though appeal will be competent against orders passed by a Single Judge, but it will not be available against the decrees. This, undoubtedly, will create an anomalous position. Therefore, the learned counsel sought the restoration of the omitted words by an implied repeal of the Karachi Courts Ordinance, 1955. The position taken by the learned counsel is untenable. It is not possible to hold that the President's Order No. 11 of 1956 has impliedly repealed the Karachi Courts Ordinance, 1955, in so far as it deals with section 14 of the Sind Courts Act. Section 2 of the Order specifically deals with amendments of other laws which have been provided in Part A and Part B of the Schedule to the Order. The omission of section 14 of the Sind Courts Act from the Schedule of amendments is significant. This would show that section 14 was not intended to be amended. Moreover, the reading of the whole of the Order, which contains 28 sections, does not show that there was any intendment in so far as the restoration of the above mentioned words in section 14 is concerned. Even if the President's Order repealed the Karachi Courts Ordinance, 1955, it would not necessarily mean that the amendments made by the Ordinance stood annulled with the effect of restoring the original provisions of law. One of the very well known incidence of repeal is that unless a different intention appears, the repeal shall not revive anything not in force or existing at the time at which the repeal takes place. The result would be that the omitted words from section 14 of the Sind Courts Act by the Karachi Courts Ordinance, which were not in force at the time of the promulgation of the President's Order, shall not be revived unless a clear intention is shown in the Order itself; which, I have already mentioned, does not exist. Therefore on the basis of the arguments advanced by the learned counsel, it cannot be held that clause 10 of the Letters Patent was not applicable. The above discussion of the argument raised by the learned counsel in respect of the two statutes involved, in my view, is not complete. The amendment of section 8 of the Sind Courts Act, 1926, by the two laws, appears to be somewhat inconsistent. The Karachi Courts Ordinance, 1955, intended to bring same changes of the then existing original jurisdiction of the Sind Chief Court. This reversal appears not to have been noticed in the President's Order. May be that the Karachi Courts Ordinance, 1955, was not yet enforced, when the law relating to the establishment of the Province of West Pakistan came into force. There can be other possibilities also. The learned counsel did not assist in resolving this doubt, and I do not consider myself to be called upon to go into this controversy in any further depth. Additional reasons are: Firstly, the argument of the learned counsel based on the provisions of these laws, noted above, is misconceived and untenable; and secondly, the law governing the situation is contained in other enactments. Before dealing with those provisions, it is necessary to refer to Firdous Trading Corporation and others v. Japan Cotton & General Trading Co. Ltd. (P L D 1961 Kar. 565) which was cited in support of the contention that the President's Order No. II of 1956 did not amend section 14 of the Sind Courts Act, 1926, as it then stood applicable to Karachi. It is correct that the learned Chief Justice did mention that section 14 "as applicable to Karachi was not amended and was preserved in its original shape." This observation does not necessarily imply that the ‑original shape, mentioned therein, is the one before the promulga tion of the Karachi Courts Ordinance, 1955. May be, the learned Chief Justice was referring to the original shape as it was before the promulgation of the President's Order No. II of 1956. If that is so, the omission of certain words in section 14 brought about by the Karachi Courts Ordinance will, according to this observa tion, continue even under the President's Order. But in fairness to the learned counsel, I may observe that though the above inference can be drawn about the opinion expressed by the learned Chief Justice in the matter, yet that may not be the correct position as envisaged by him. I have made this comment because of the fact that the Karachi Courts Ordinance, 1955, has not been noticed in the cited judgment. The learned counsel also relied on another observation in that judgment in respect of the original jurisdiction of the Karachi Bench, namely, that no change in respect thereof has been effected by the establishment of West Pakistan High Court. I respectfully agree with this observation of the learned Chief Justice but the inference drawn by the learned counsel that this should also lead to an implied assumption by the learned Chief Justice that the appel late jurisdiction under clause 10 of the Letters Patent was also not available to the Karachi Bench for the district of Karachi, is neither deducible from the judgment nor I am ready to accept it.

7. The Establishment of West Pakistan Act, 1955, which is in the nature of a constitutional statute, in its section 7, provided for the establishment of a High Court for the whole of the Province of West Pakistan. By the Establishment of West Pakistan (Amendment) Act, 1955, the Special area were excluded from the ambit of section

7. The Province of West Pakistan, according to section 2 of the Original Act included, amongst other territories, the Capital of the Federation. It is provided therein that this territory shall be administered in accord ance with the provisions of section 290‑A of the Govern ment of India Act, 1935. The latter section empowered the Governor‑General to administer this area. The Provincial Legislature could not however, legislate for it, except in respect of matters relating to the High Court. By the same amendment, subsections (5) and (6) were added to section

7. Subsection (1) of section 7 of the Act specifically provided that the powers and authority exercisable by the then High Court of Lahore and the Judges thereof, shall be exercised by the High Court of West Pakistan and the Judges thereof, in the whole of West Pakistan. The Governor‑General promulgated the High Court of West Pakistan (Establishment) Order (XIX of 1955). The preamble shows that the sources of power for promulgating this Order were: section 7 of the Establishment of West Pakistan Act, 1955, which provided for the establishment of a High Court for West Pakistan; section 5(1) which, inter alia, provided for the adaptation of laws including the Letters Patent; and section 229‑A of the Government of India Act, 1935 which provided for the amendment of any Letters Patent establishing, or vesting jurisdiction, powers and authority in, a High Court. Under the Charter given by section 7 of the Act, this Order of the Governor -General is one of the basic laws concerning the establishment of the West Pakistan High Court. By para. 3 of this Order, the High Court of West Pakistan was formally constituted, and the High Court of Lahore, the Chief Court of Sind, the Judicial Commis sioners' Courts in the North‑West Frontier Province and Baluchistan, and any other Court functioning as High Court in relation to the territories or areas included in the Province of West Pakistan, ceased to exist. In the same para. it is provided that the High Court so established shall have such original, appellate and other jurisdiction and such powers and authority in respect of the territories included in the Province of West Pakistan as the High Court of Judicature at Lahore had, immediately before the commencement of the Order. "Application of Letters Patent" is dealt in para. 9 of the Order. It provided that the Letters Patent constituting the High Court of Lahore, dated 21st March 1919, shall apply to the High Court (of West Pakistan) and the jurisdiction, powers and authority conferred by the said Letters Patent shall be deemed to have been conferred on the High Court of West Pakistan, subject of course to such modifications and alterations as the provisions of the parent Act, or any Order made thereunder, or any other law for the time being in force, may warrant. Thus it is clear that paragraphs 3 and 9, referred to above, conferred the original, appel late and other jurisdiction and powers and authority of the High Court of Lahore as it exercised before the commencement of the Order, on the High Court of West Pakistan. In so far as this conferment is concerned, it is not subject to any other law. However, the latter part of para. 9 provided that the Letters Patent was to apply subject to modifications and alterations which may be necessitated by other laws. It may be mentioned that the modifications and alterations cannot be in the nature of nullifying the effect of the jurisdiction granted by the Letters Patent. The intended modifications and alterations must, therefore, in the context, mean procedural and consequential. This supposition is strengthened by para. 5 of the Order which provides for an exception to the substantive part of the law enacted in paras. 3 and 9 of the Order. It, inter alia, provides that notwithstanding anything in the Order or in any other law for the time being in force, the Bench of the High Court at Karachi shall have the same original civil jurisdiction for the civil district of Karachi, as was exercisable immediately before the commencement of the Order, by the Chief Court of Sind under section 8 of the Sind Courts Act, 1926. It was, however, provided that the Governor‑General may, by notifica tion, provide for the cessation of the exercise of that jurisdiction by the Karachi Bench. If para. 9 by virtue of the mention of the words "modifications and alterations which the other laws may warrant" would have been intended to subordinate the Letters Patent to other laws in respect of the substantive conferment of jurisdiction, there would not have been any need for enacting the special provision in para. 5 for protecting the original, civil and criminal jurisdiction of the Bench at Karachi. Therefore, I am of the view that though para. 5 of the order kept intact this jurisdiction of the Karachi Bench by reference to section 8 of the B Sind Courts Act, 1926, neither this para. nor any other provision in the parent Act nor in this Order, provided for the retention of the within Court appellate jurisdiction of the Karachi Bench under section 14 of the Sind Courts Act. Had it been so, the same could have been very easily provided in para.

5. The omission in this behalf is very significant. On the contrary, para. 9 read with para. 3 specifically provided for the conferment of the jurisdictions, powers and authority on the High Court of West Pakistan (which included all its Benches), as were available to the Lahore High Court under the Letters Patent. The, within Court, appellate jurisdiction, as provided by clause 10 of the Letters Patent would, therefore, by necessary implication and intendment, be held to have been conferred on the Karachi Bench also, in respect of all the territories, including Karachi, within its jurisdiction.

8. There is another aspect of the matter. Even if it is assumed that the President's Order No. 11 of 19:6 kept intact section 14 of the Sind Courts Act, 1926, it would not mean that the appellate jurisdiction under clause 10 of the Letters Patent is not available. Section 14 of the Sind Courts Act, in its original shape, before the promulgation of the Karachi Courts Ordinance, 1955, provided for the within Court appeal against decrees and orders "except as otherwise provided by any enactment" and as "permitted by any law" for the time being in force. When the High Court of West Pakistan (Establishment) Order (XIX of 1955), came into force and the High Court of West Pakistan came to be established, by virtue of paras. 3 and 9 of the Order the Letters Patent of the High Court became "a law for the time being in force" in respect of the jurisdiction of the High Court including within Court appeal. Clause 10 of the Letters Patent, which would be the relevant provision in this matter, provided that a judgment on the civil side by a Single Judge in certain circumstances and within certain limitations be appealable within the Court. Thus section 14 of the Sind Courts Act by its excepting clause, keeps intact the application of clause 10, to the question of the appellate jurisdiction. Furthermore, section 14 also adopts by reference, the other laws on the subject. One of such other laws being clause 10 of the Letters Patent; it will be deemed to have been included in section

14. The other such law, according to the learned counsel, is section 104 and Order XLIII, rule 1(r), C. P. C. Thus the three laws, i.e., section 14 of the Sind Courts Act, the provisions of C. P. C., and clause 10 of the Letters Patent will be available as source of the within Court appellate jurisdiction of the Karachi Bench. Without dilating on the incidence and connotation of the various words and phrases used in these provisions of law, so combined; it can be safely said that the within Court, appellate jurisdiction will be widened and; in no case, restricted as contended. Clause 10 of the Letters Patent will continue to apply to the cases coming before Karachi Bench relating to Karachi. The above conclusions are relevant and dependent upon the assumption of the argument that paras. 3 and 9 of the High Court of West Pakistan (Establishment) Order (XIX of 1955), did not make, clause 10 of the Letters Patent, applicable to Karachi. In my view, however, as held in the earlier paragraphs, it is applicable; and in that view of the matter, section 14 of the Sind Courts Act, even if in force, will have to be subordinated to Clause 10 of the Letters Patent; which has been applied by the C force of the powers granted by section 7 of a constitution enactment, i.e., Establishment of West Pakistan Act, 1965.

9. There is yet another aspect of the same matter. The West Pakistan Civil Courts Ordinance (II of 1962), promulgated on 8th January 1962, by section 28 thereof, repealed the whole of Sind Courts Act, 1926, as applicable to district of Karachi, except section

8. It also repealed the whole of the Karachi Courts Order, 1956 (President's Order No. II of 1956), except clause 4(2) thereof. The effect of this repeal is that the original civil jurisdiction of the Karachi Bench of the High Court relating to district of Karachi has been retained, and section 14 of the Sind Courts Act dealing with the, within Court, appellate jurisdiction of the Karachi Bench including that relating to district of Karachi, even if it remained in existence after the coming into force of the High Court of West Pakistan (Establish ment) Order (XIX of 1955), has been repealed. If Clause 10 of the Letters Patent be not held as applicable to Karachi Bench for the district of Karachi, then there were absolutely no provisions. left for the within Court, appeal. This result could never have been intended by the framers of the Establishment of West. Pakistan Act, 1955, or the High Court of West Pakistan (Establishment) Order, 1955, or the West Pakistan Civil Courts. Ordinance, 1962. Therefore, the only, conclusion, consistent with the intention of the Legislature is that Clause 10 of the Letters Patent, as. applied by para. 9 of Order No. XIX of 1955, governs the case. And section 14 of the Sind Courts Act stood repealed by the above referred laws. In fact, it had lost all its utility in the presence of the provisions of those laws, particularly paras. 3 and. 9 of the Order. It is an admitted fact that innumerable appeals, for a. considerable long time, have been entertained and disposed of under Clause 10 of the Letters Patent by the Karachi Bench in, respect of cases relating to the district of Karachi. But for my findings on the interpretation of legal provisions involved in the matter. I may have also examined the question of the effect of this practice; but, in the circumstances, it is not necessary. In the light of the above discussion, I hold that the present appeal is competent under Clause 10 of the Letters Patent.

10. The learned counsel for the respondent next contended that the Lahore High Court, as it was before 1955, had no original civil jurisdiction to try suits, therefore, clause 10 of the Letters Patent will, in terms not apply to the Karachi Bench of the High Court. I have already held that if clause 10 is not applicable, section 14 of the Sind Courts Act having been repealed there is no other provision for such an appeal which could not be the intention contained in the above analysed laws. Moreover, para. 9 of Order XIX of 1955 clearly envisages consequential modifications and alterations in the Letters Patent, while keeping in view the other laws relating to the jurisdiction. If section 8 of the Sind Courts Act is one of such other laws, then the consequential modification in clause 10 will be that the appellate jurisdiction provided therein (clause 10) will also apply to the matter dealt by the Karachi Bench of the High Court under section 8 of the Sind Courts Act. Moreover, almost similar argument was raised in the Supreme Court and was repelled by their Lordships, by reference to section 108 of the Government of India Act, 1915, in Mumtaz Khan v. Chief Settle ment and Rehabilitation Commissioner and another (P L D 1966 S C 276).

11. It was also contended that even if the appeal was competent under clause 10 of the Letters Patent, the order under appeal not being appealable under Order XLIII, rule l(r), C. P. C. could not be subject to a letters patent appeal. The precise argument of the learned counsel is that the only test, in so far as the letters patent appeals against the orders, which are passed under the Civil Procedure Code, is the maintainability of appeal under Order XLIII, rule 1(r), C. P. C. He cited Shakoor Hasam Patel v. Muhammad Hussain Shakoor and another (P L D 1957 Kar. 435) in support of his contention, wherein the following observation, no doubt, partly supports the learned counsel:‑ " ., and yet (we) find ourselves unable to hold that the order from which this appeal has been preferred is a `judgment' within the meaning of Clause 10 of Letters Patent for the High Court of Lahore. The order merely directs that notice be given to the opposite‑party, and we are satisfied that it is not appealable under clause 10 of Letters Patent unless it is appealable, as contended by the appellant's counsel, under Order XLIII, rule (1) (r) of the Civil P. C." But in an earlier part of the judgment, it was specifically observed:‑ " .. We accept for the purposes of this appeal a wide meaning of the word (judgment) so as to include in it even an order which determined pro tanto the right of a party as held in Mansata Film Distributors, Calcutta v. Sorab Merwanji Modie 8 B L R 433." It appears that the learned Judges accepted the wider connotation of the word "judgment"; but, in the circumstances of that case, agreed with the learned counsel that unless the order would have been appealable under Order XLIII, rule 1 (r), C. P. C., it could not be appealable under clause 10 of the Letters Patent. Therefore, that judgment does not help the learned counsel. The learned counsel for the appellant, in reply, cited Hoshang Dastur and others v. Eddie P. Bharucha and another (P L D 1968 Kar. 761) the judgment in which case was written by the same learned Judge who wrote the judgment in the earlier Karachi case. In the latter case, it was held that an order of a Single Judge refusing to correct an error being an accidental slip, was a judgment within the meaning of clause 10 of the Letters Patent. Such an order admittedly is not appealable under Order XLIII, rule 1(r), C. P. C. Despite that, it was held that it was a judgment within the meaning of clause 10 of the Letters Patent. I have noticed that the maintainability of appeal, as provided in section 104 read with Order XLIII, rule 1, C. P. C. was not considered in the above cited cases as the only test in the matter. Even if it would have been so, with respect I observe, I could not have followed such a rule if assumed to have been laid down in those cases. This very question has been dealt with by their Lordships of the Full Bench in Firm Shaw Hari Dial & Sons v. Messrs Sohna Mal Beli Ram (A I R 1942 Lah. 95). At page 97 of the report, the question has been resolved in the following observation:‑ "I next come to the Allababad High Court. The Allahabad High Court as pointed out in the Commentary of Mulla on the Civil Procedure Code in Edn. 10 at p. 1351 at first held that the Letters Patent were controlled by section 101 and Order XLIII, rule 1, C. P. C. Corresponding to section 588 of the Old Civil Procedure Code. It has subsequently been pointed out that this view having regard to the change of the wording of section 104 could not possibly now be considered correct." This ruling was cited, with approval, in the Supreme Court Judgment in Mumtaz Khan's case. In addition, it may be pointed out that their Lordships of the Supreme Court were pleased to consider the whole subject of the connotation of word "judgment" as used in clause 10 of the Letters Patent, and referred to all the important decisions of various High Courts. Their Lordships do not appear to have approved the argument that the provisions of section 104 read with Order XLIII, rule 1, C. P. C. are the only guide in this matter.

12. The learned counsel for the respondent then argued that, in the circumstances of this case, the order under appeal is not a judgment. When we asked the learned counsel that in view of the fact that the case of the appellant has been altogether shut out and her claim and assertion of right to be impleaded as a necessary party, has been finally concluded by the order appealed against, whether still he thought that it was not a judgment; be could not give a satisfactory answer. Instead he placed reliance on Ramswami Chattier v. Roya Kanniappa Mudaliar and two others (I L R 54 Mad. 491) to contend that refusal to implead as party was not judgment. The question involved in that case was the competency of an appeal against the addition of a party and not against refusal to implead a party. Therefore, it has no relevancy. The latter question was considered in C. E. Dooply and others v. M. E. Moola and others (A I R 1927 Rang. 180). It was held that Letters Patent Appeal was competent against refusal to implead as defendant. I am conscious that some decisions, particularly from post partition Indian jurisdiction, favour a narrow connotation of the word "judgment" in corresponding clauses of Letters Patent of various Indian High Courts. Our Supreme Court has, in the case of Mumtaz Khan, however, not accepted such a view and has held that the word "Judgment" has to be given wider connotation and the circumstances of each case will have to be seen. Respectfully following our Supreme Court in this matter, I am of the view that, in the circumstances of this case narrated earlier, the order under appeal, i.e., refusal of permission to the appellant to be impleaded as a party so as to defend her alleged right in the property in dispute, is a judgment within the meaning) of clause 10 of Letters Patent.

13. The learned counsel for the respondent also argued but vaguely, that the order under appeal is not a final order and that the learned Single Judge has left it open for the appellant to file another application for the same purpose. I do not agree with this interpretation of the order. It is true that the learned Judge has observed that his order shall not come in the way of the intervener in filing afresh application in this behalf, according to law, if so advised. The contention of the learned counsel for the appellant is that due to some misunderstanding, the learned Judge did not notice the document filed with the intervener application, i.e., the agreement, dated 3rd April 1951, and that is why the observation in the order under Appeal that "the intervener has not shown by way of any document how she has acquired the alleged right in the property and what is her share, nor has she shown the names of the other alleged co‑owners and their shares". The agreement, which was filed with the intervener application, admittedly, gives all this information. Even if afresh application is filed, the material that was placed before the learned Judge earlier, would remain the same. Therefore, under the law it might not be possible to file a fresh application. In the circumstances, it may be that the power of review is not available and the provisions of res judicata might also be applicable. Therefore, I consider that the observation of the learned Judge in respect of the filing of another application does not, in any way, militate against the finality of the order passed against the appellant on the material assumed to have been placed before him. In the light of the above discussion, I hold that the appeal has been competently filed and the order under appeal is appealable under Clause 10 of the Letters Patent and T proceed to dispose it of on merits.

14. On merits, the learned counsel for the appellant has relied on; the agreement mentioned above the copy of list of property said to be belonging to the heirs of Mst. Khatun Zamani Begum (which includes the property in dispute) signed by Jalilur Rehman respondent on 10th January 1953 (marked X1 arid X2); the statement made by him before the Civil Judge 1st Class, Karachi on 19th May 1957; the other items of evidence mentioned in the affidavit filed with the intervener application on 10th December 1968: and the statements made in this Court by the two brothers, i.e. Syed Jalilur Rehman and Syed Saeedur Rehman. It may be noted that the documents relied on by the appellant do mention her as a part owner of the property in dispute. Saeedur Rehman respondent has admitted this position in his statement made in this Court and has also mentioned this fact in his written statement. So much so that an issue has been framed on this question. The denial of the right of the appellant by Jalilur Rehman respondent is not in the nature that she had no right in the property at any time. What he has explained is that she has no more right in the property, because she has been paid the full value thereof by Saeedur Rehman. Saeedur Rehman has denied that he has made the payment to the appellant. All the circumstance, i.e. the assertions made by the Appellant, the prima facie support that those assertions gain from the documents and statements relied upon before us and the position taken by Jalilur Rehman and Saeedur Rehman, do make out a case for the need for adjudication in respect of the rights of the appellant in the property in dispute. I have deliberately refrained from comment ing in detail on the positions taken by the parties before us, because I feel that any more observations may prejudice the rights of the parties in view of the final order that I propose to pass in this appeal. To be precise, I may make it clear that any observations made in respect of the relevant respective rights of the present parties before us or any other person, are only prima facie and tentative and should not be treated as determina tive in the nature of an adjudication.

15. Lastly, it was contended on behalf of respondent No. 1 that by impleading the appellant as a party in this suit for specific performance of contract of sale, the nature of the suit will get converted into one of title; therefore, the appellant should not be impleaded as a party. A short answer to this question is that it is a suit for specific performance of contract, the decree in which largely depends upon the discretion of the Court. Any factor or circumstance which militates against the exercise of discretion in favour of a plaintiff in this type of suits, may result in the dismissal of the suit. Therefore, it is not a correct appreciation of the legal position in a suit like the present one that by impleading an intervener, in the position of the plaintiff the suit will get converted into one of title. On the contrary, there is ample justification to consider the question whether or not the impleading of a party will help the Court in the exercise of its discretion for allowing specific performance. There might be a very thin margin between the two facets but it is not impossible to decide which of the two approaches is to be adopted in a particular case. In doing so, the first and foremost consideration will be the facts and circumstances of each case. In this case, it is admitted that one, so called, outsider, i.e. Mst. Saeeda Khatun, who claimed to be the owner of the property and further claimed that any decree passed in favour of the plaintiff in this suit will affect her rights, has been impleaded as a party. No appeal has been filed against that order; nor has it been even indirectly challenged before us. This serves as a precedent in the same case and a justification is made out for impleading the appellant as well, because she also claims the right of ownership in the property in dispute. Moreover, the question that the appellant has raised in her application in respect of her and others' share in the property, has already been raised by Saeedur Rehman in his written statement and is the subject‑matter of a definite issue i.e., issue No. 3 quoted in opening paragraph of this judgment. The framing of that issue has not been challenged. That, in any case, has to be tried and adjudicated upon. In that adjudication, the rights of the appellant will have to be decided. This question can be looked at from another angle as well. Fraud has been pleaded against the respondent No. 1 by the respondent No. 2 in paragraph No. 9 of written statement. If the contention of the appellant, as to her ownership and of others is accepted, a possible conclusion could be drawn that the two brothers who would in that case be in the position of trustees of the shares of other co‑owners, by entering into an agreement of sale amongst themselves, not only tried to defraud them (the co‑owners) but also committed breach of trust. Therefore, an intervenor who is capable of assisting the Court, particularly in case the parties collude, should be impleaded as a party. In connection with the above aspect of the case, the learned counsel for the respondent cited V. R. S. S. Chidambaram Chattier v. P. L. N. K. Subramaniam and others (A I R 1927 Mad. 834), Rangaya Reddi v. Subramaniya Ayyar (40 Mad. 365), Prem Sukh Gulgulia and another v. Habib Ullah and others (A I R 1945 Cal. 355) and Mt. Nagi and another v. Damodhar Jago baji Tidke and others (A I R 1948 Nag. 181). It is true that in the circumstances of each individual case cited above, it was considered that an outsider claiming a title adverse to the parties in the suit, particularly in a suit for specific performance cannot be allowed to be joined as a party. Be that as it may, it is not the contention of the learned counsel that for the purpose of applying the provisions of Order I, rule 10 (2), C. P. C., the Court cannot look into the question whether or not in a particular case it is necessary, in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, to implead an intervenor. The provision referred to above has to be interpreted and applied, with reference to the other provisions contained in Orders I and II, C. P. C. Order I, rule 3, C. P. C. provides that all persons may be joined as defendants against whom any right to relief in respect of or arising out of the same act or transaction or series of acts or transactions is alleged to exist, whether jointly, severally or in the alternative, where, if separate suits were brought against such persons, any common question of law or fact would arise. It is true that Order I: rule 9 provides that no suit shall be defeated by reason of the misjoinder or non‑joinder of parties; but at the same time sub‑rule (2) of rule 10 thereof provides that the Court may at any stage of the proceedings, order that the name of any person who ought to have been joined, or whose presence before the Court for the purposes already indicated above, is necessary, be added. Order II rule 1, C. P. C. is to the effect that every suit shall as far as practicable be framed so as to afford ground for final decision upon the subjects in dispute and to prevent further litigation concerning them. Rule 3 of Order 11 which deals with the joinder of causes of action is in the affirmative form and provides that the plaintiff may unite in the same suit several causes of action against the same defendant or defendants jointly. Two Exceptions in respect of joinder are mentioned in rules 4 and 5 of Order Il and a discretion is allowed under rule 6 thereof to the Court to order separate trial, if the joinder of certain causes of action cannot be conveniently tried or disposed of together. The pith and substance of all these provisions is the avoidance of any inconvenience to the parties, in matter of litigation so far as it is possible; and on overriding factor which runs as an implied intention throughout these provisions is, that multiplicity of litigation is to be avoided. The cases cited by the learned counsel also recognise this principle. There are two recent judgments on this question and they need to be examined. One is Jamilur Rehman v. Muhammad Asghar and others (P L D 1968 Lah. 1076). It was a case for pre‑emption, in which a Division Bench of this Court, the judgment for which was written by the learned Chief Justice, held that the paramount consideration in interpreting Order I, rule 10(2), C. P. C. is the avoidance of multiplicity of suits. However, in the peculiar circumstances of that case, their Lordships held that the appellant therein could not be impleaded as a party. The relevant observations at pages 1083 and 1084 are reproduced below:‑‑ "Thus, in these circumstances, by impleading the appellant as a defendant, the suit will not only be converted into one of title between him and respondent No. 1 but will also raise complicated questions of law and fact. Admittedly, in the sale alleged to have taken place in 1952, the appellant represented himself to be a major and even if it is found that he was a minor, the question whether he is estopped to challenge it in a collateral proceedings, after a lapse of considerable time, under the statute of limitation or under section 115 of the Evidence Act, or without restoring the benefits received by him, cannot be lightly treated. 1n fact, for the decision of these questions the presence in the suit of Mst. Razia Begum would also be necessary as in her absence no effective adjudication of the disputed points would be possible. Obviously, such important questions can effectively be adjudicated upon in separate appropriate proceedings and in this suit which is one simply for pre‑emption. The paramount consideration in impleading proper parties is to avoid multiplicity of suits. There is no doubt that this object cannot be achieved by impleading the appellant in the suit under appeal. Whatever may be the result, either party shall have to resort to further litigation. Moreover, addition of the appellant as a defendant will result in altering the nature of the suit which, certainly, is not the object of the provisions of Order I, rule 10 of the Code." The above observations show that the case before their Lordships was of a different type and nature; and the fact that the intervener was not allowed to be made as a party in that case, will not affect the merits of the case before us. 'The second case is Mir Hasmat Ali v. Birendra Kumar Ghosh and others (P L D 1965 Dacca 56). It was cited by the learned Counsel for the appellant. It is almost on all fours with the case before us. The petitioner before the High Court in that case, instituted a suit for specific performance of a contract, on the basis of an agreement between him and opposite‑party No.

1. The property involved belonged to five co‑sharers, including the opposite‑party No. 1 and four others, i.e., opposite‑party Nos. 2 to

5. The last mentioned four persons left Pakistan and became Indian citizens. When the suit was still pending before a learned subordinate Judge, the Province of East Pakistan as defendant, in the High Court on the revisional side. The main contention raised on behalf of the plaintiff‑petitioner before their Lordships in that case was the same as has been raised before us; namely, that in a suit for specific performance of contract, only parties interested in the contract are necessary parties. It was further contended that the language of rule 10 of Order 1, C. P. C. supported this contention. After examining the case‑law on the point, their Lordships were pleased to hold that order 1, rule 10, C. P. C., specifically empowers a Court to add a party to the suit for the purpose of effectually deciding "all the points involved in the suit". The phrase "all the points involved in the suit "does not mean" all the points that are raised by parties". The phrase is not amenable to any such restricted meaning. All the point though not raised as between the parties themselves, as are material to a proper decision of the suit, are necessarily points "involved" in the suit. It was held that "it is obvious that, being a discretionally relief, a Court of the has full discretion to allow or refuse specific performance, if circumstances justify such refusal although the contract may be free of any legal defect". Some of the circumstances which would justify the refusal to enforce specific performance were considered by their Lordships; for example, if the contract is of a collusive nature and there is likelihood of the parties before the Court colluding in such a, way as to deprive the Court of the material facts; or, when the enforcement of the contract might lead to a breach of trust even when such breach of trust was not proved; or, when the facts and circumstances of the case prove that the transaction is unconscionable. I am in respectful agreement with the observations of their Lordships in the cited case; and applying the same principles to the present case, I am of the view that the appellant be impleaded as a party (defendant) in the suit pending in this Court.

16. Both the learned counsel brought to our notice that there were other persons who could claim an interest like that of the present appellant, on the basis of the agreement dated 3rd April 1951. The learned Single Judge has not passed any order in respect of the need for impleading those persons as parties in the case. It will not be proper in these proceedings to pass an original order in this behalf. The learned Single Judge may pass an order as he deems fit. The result, therefore, is that this appeal is accepted and the appellant is allowed to be impleaded as a party. There shall be no order as to costs. NOORUL ARFIN, J.‑

I agree. K. B. A. Appeal accepted.