1989 PLP 4543 (MLD)

TANZIL-UR-REHMAN, J.--Exemption granted subject to all just exceptions.

2. This is a High Court Appeal against the order dated 22-2-1989 passed by a learned Single Judge of this Court on an application moved by respondent No.7, as intervenor, whereby, holding the intervenor to be a proper party, it was directed that the said intervenor be impleaded as co-defendant. Mr. J.H. Rahimtoola, learned counsel for the appellant submits that the basic requirement under Order I Rule 10(2) is that the person who is ordered to be impleaded as party to the suit must be found to be necessary party in order to enable the Court to adjudicate upon and settle all the questions involved in the suit. The question raised by the said respondent No.7 is not involved at all. He further submits that if the respondent has any interest in the land in question he may file a separate suit as it will delay the present suit which was filed as long back as in 1979. It is further submitted by him that the land claimed by the said respondent according to the own showing, was leased out to it in 1977, whereas grant in favour of the appellant/plaintiff had been made as far back as in 1965 and, therefore, even if it is ultimately proved that the respondent has got an interest in the land the question of prior allotment and its affect would come up. Learned counsel has placed his reliance on two cases reported as Jamil-ur -Rehman v. Muhammad Asghar and others PLD 1968 Lah.1076 and Pakistan Banking Council and another v. Ali Mohtaram Naqvi and others 1985 SCMR

714. We are afraid the submission of the learned counsel that the question raised in the application of the intervenor is not involved in the suit is misconceived. The intervenor Society claims 56 acres of land leased out to them by the Government of Sind, out of which 30 acres of land falls within the area of 250 acres claimed by the appellant on the basis of the alleged grant. It has further been alleged by the intervenor that an injunction has been obtained by the appellant which is affecting adversely the society in respect of 30 acres out of 56 acres of land. By virtue of documents produced by the said respondent No.7, it has been shown prima facie, that it is a lessee in respect of certain land, part of i which is alleged to have fallen within the area of the land granted to the appellant. It has also been shown that the appellant has paid Rs.72,60,000 to the Government towards costs of external development and has incurred a huge amount on its internal development. Therefore, prima facie, the question of the entitlement of the respondent No.7 in respect of 30 acres of land is involved in the suit. The submission of the learned counsel that respondent should file a separate suit also appears to be misconceived. The provision of Order 1 rule 10(2) has been made for a number of reasons including the avoidance of multiplicity of suits. As far as delay is concerned, it will rather curtail the delay. As the suit is of 1979 it will be decided earlier than a fresh suit to be instituted. The next submission of the learned counsel regarding grant of the land in question to the appellant being prior in time, to say the least, is hardly relevant for the purpose of considering an application under Order I rule 10(2) C.P.C. Now, adverting to the case law cited by the learned counsel, the first case PLD 1968 Lah. 1076 has already been noticed by the learned Single Judge in his order and we have no reason to take a different view, regarding its applicability to the present case. Suffice it to say that in the said case a person was sought to be joined under Order 1, rule 10(2) against his wishes and, moreover, it was held in that case that even if he is impleaded as a party it will change the nature of the suit, which is not the case here. As regards the second case 1985 SCMR 714 the following passage appearing at page 479 is relied on by the counsel, which is reproduced as under:- "It is needless to reiterate the true scope of powers vested in the Court for adding parties to a pending suit under Order I rule 10(2) of the Code of Civil Procedure. It is now well settled that under this provision two classes of persons, namely, necessary parties and proper parties can be joined. The former consists of persons who ought to have been joined as parties and the latter of persons without whose presence the questions in the suit cannot be completely and effectually adjudicated upon. If a person does no fall in either of these two classes, that is to say, he is neither a necessary nor a proper party, then the Court has no jurisdiction to add him as a party under this sub-rule. This is why the Court is caller upon not to drag any parties in the array of the suit to suffer the rigours of a trial unnecessarily, It must be further pointed out that the question of addition of parties tinder this rule is generally not one of initial jurisdiction of the Court, but of judicial discretion which has to be exercised in view of the facts and circumstances of a particular case. No party can be allowed to argue that as the Court has a wide discretion in the matter of the joinder of parties, any person who is neither a necessary nor a proper party may be joined at the convenience of the appellant. It is in this context that the Courts have held that in exercising their powers under this rule, Courts ought to see that they do not load the record with the parties wholly shown to have no interest in the suit and that the trial of the suit is not embarrassed by the simultaneous investigation of totally unconnected controversies. There can be no cavil that for deciding the application under Order 1, rule 10(2) a person seeking to be joined as party must fall in either of the two rule classes viz. either it be shown that the person is a necessary party or (2) a proper circumstances of the case, the learned Single Judge has party. In he facts and ct held him to be a proper party of the suit. For the above reasons, we find no merits in the appeal, which is dismissed in limine.

3. In view of the order passed in the appeal, it has become infructuous and is, thus, dismissed. M.Y.H./A-611/K Appeal dismissed.