1999 PLP 1291 (CLC)

This judgment proposes to decide Civil Revision No.1952 of 1998, which brings under challenge order, dated 16‑9‑1998 of the learned Civil Judge, Lahore.

2. Petitioner filed a suit for specific performance to enforce agreement of sale, dated 7‑8‑1997, in regard to House No.ll, Humza Block, maintaining that respondent No. l had agreed to sell the house in his favour for Rs.76,50,000 and received Rs.45,00,000 as earnest money but failed to execute and register the sale‑deed in terms of the agreement. Respondent No. l did not deny execution of sale agreement but maintained that Rs.20,00,000 were paid as earnest money.

3. Respondent No.3 moved an application under Order I, Rule 10 of C.P.C. for his impleadment in the suit on the plea that the petitioner had agreed to sell the same house, in his favour, on 11‑8‑1997, in consideration of Rs.88.00,000 and received Rs.35,00;000 as earnest money at the time of execution of the agreement and thereafter, received Rs.25,00,000 on 16‑9‑1997. It was claimed that he had also filed a suit to enforce the agreement of sale against the petitioner.

4. The learned Civil Judge allowed the application by his impugned order, on assumption that respondent No.3 had acquired some interest in the land and would be interested in result of the suit.

5. Learned counsel for petitioner argued the respondent No.3 was neither necessary nor proper party, his impleadment was not permissible as a different cause of action would be brought in the suit, if he is impleaded and also that there was no such agreement with respondent No. 3 as claimed by him.

6. The order was supported on behalf of respondent No.3. Interestingly, learned counsel for respondent No‑1 also supported the order and tried to maintain that respondent No.3 would be necessary party in the suit, notwithstanding the fact that in the Court below, respondent No. l had contested the application in her reply.

7. The facts in this case are absolutely clear. Dispute raised in the plaint, precisely, is based on an agreement of sale, claimed by the petitioner in her favour from respondent No .l, owner of the property. Enforcement of the agreement has been claimed and petitioner No. l is yet not owner of the property. Mere execution of agreement of sale in favour of the petitioner, filing of suit by him and even passing of the decree in his favour would not make him? owner of the property, till such time a registered sale‑deed is executed in his favour, to convey title. Reference can be made to Muhammad Ishaq v. Muhamthad Siddique PLD 1975 Lah.

909. In this backdrop, when plea of respondent No.3 is considered, then possibly no relief could be extended to him in the present suit. Respondent No.3 claims that the petitioner agreed to sell in his favour same house on 11‑8‑1997. Admittedly, petitioner himself is not owner of the property and, therefore, possibly he could not convey any .interest in the property in favour of respondent No.3. It is not claimed that assignment of interest was permissible under agreement of sale, in favour of the petitioner or that in terms of such assignment, an agreement was made. Even if, the plea of assignment is claimed, it will be a question to be considered if the assignment was permissible without registered document. I would not like to make any final observation in this regard, lest the suit of respondent No.3 may be prejudiced. Of course, these questions will be attended to by the Court, in the suit of respondent No.3, which is being independently tried.

8. For the purposes of decision of this revision, only question requiring consideration is, if respondent No.3 was necessary or proper party to the suit. Under Order I, Rule 10 of C.P.C., the Court can implead any person as a party, whose presence is necessary, to settle or adjudicate upon the questions involved in the suit. The questions involved in the suit mean the questions arising between the plaintiffs and the defendants in the suit. Those questions, which are 8 not between the plaintiffs and defendants, would not be deemed to be questions involved in the suit. If a person claims his impleadment, on the ground that his presence would be necessary to determine the questions between him and the plaintiffs or between him and the defendants, his presence is not necessary in the suit, as he can independently settle the issue through a separate suit. In other words, the questions involved in the suit would not mean the questions between the co‑plaintiffs or between the co‑defendants but should be the questions between plaintiffs and the defendants. Reference can be made to Mst. Hamida Vida Hussian Khoja and another v. Mst. Anees Iqbal 1986 MLD 443 and Mukhi Jeramdas Jethanand and others v. Tikamal Mulchend and another AIR 1935 9.???????? Looking deep into the plea raised in the application for impleadment it appears that the applicant/respondent No.3 did not claim any agreement of sale with respondent No. 1, owner of the property and instead claimed agreement of sale with the petitioner who was simply holder of agreement of sale. This being so, the basis of his cause is the right to enforce an agreement allegedly executed a by the petitioner/plaintiff. If it is so, the respondent No.3 is raising questions between him and the petitioner/plaintiff and not the questions between him and respondent, No.3 and, therefore, he has an independent cause of action for which he has already filed a civil suit. In the present case? the questions to be determined are if there is an agreement of sale between petitioner and respondent No.l, whether earnest money of Rs.45,00,000 was paid, what were terms and conditions of the agreement, whether petitioner remained ready and willing to perform his part under the agreement, whether the petitioner in the given circumstances is entitled to an equitable relief in discretionary jurisdiction and for adjudication of these questions, the presence of respondent No.3 will neither be necessary nor proper. His impleadment is bound to result in multifariousness for which there is no warrant under Order I, Rule 10 of C.P.C. Consequently, the order directing impleadment of respondent No.3 in the suit for specific performance of the petitioner, being violative of law and without jurisdiction, ?cannot sustain.

10. This petition, therefore, succeeds. The impugned order is set aside, with the result that application under Order 1, Rule 10 of C.P.C. stands dismissed. Q.M.H./M.A.K./M‑983/L?????? Revision allowed.