2020 PLP 58 (YLR)

SHAKEEL AHMAD, J.

This Constitutional petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, calls in question order dated 06.10.2018, passed by the learned Civil Judge-IV, D.I. Khan, whereby application filed by the respondent No.1 for impleadment was allowed.

2. Facts, as they appeared from the plaint, are that petitioner filed a suit for specific performance of contract against Syed Zaffar Abbas/defendant alleged that defendant No.1 entered into an agreement with petitioner/plaintiff for sale of a plot on 10.06.2017 in presence of witnesses Rehan Ahmad and Muhammad Hamza Imrani. The sale was oral, the defendant was called upon to execute the sale-deed and transfer property in dispute in the name of the petitioner, after receiving the remaining sale consideration but he used to put of the matter either in one or other pretext and finally turned a deaf ear to the petitioner, which necessitated to file the suit. After service of summons, the defendant Syed Zafar Abbas contested the suit by filing written statement raising therein many factual and legal objections. During pendency of the suit respondent No.1 Muhammad Illyas submitted an application for impleadment claiming himself to be owner in possession of the property in dispute vide mutation No.9746 attested on 06.11.2017 and claimed that he has constructed a house on the suit plot which is in his use and occupation. Learned trial Court after receipt of reply of the application accepted the same and respondent No.1 was impleaded as defendant, hence this constitutional petition.

3. It was mainly argued by the learned counsel for the petitioner, that the respondent No.1 is not a necessary party and the learned trial Court committed a legal error by accepting his application for impleadment, therefore, the impugned order is liable to be set aside.

4. Arguments heard and record perused.

5. Perusal of the record reveals that respondent No.1 claims to be owner of the property in dispute on the basis of mutation No.9746 attested on 06.11.2017, stating that he has raised construction over the suit property and is residing in the said house. On the other hand, the petitioner alleged an oral agreement to sell the suit property with respondent No.2 Syed Zafar Abbas which has specifically denied by him in his written statement. In my view, impleadment of respondent No.1 Muhammad Ilyas as defendant was justified for the resons that unless and until he is impleaded the question of title of the plaintiff cannot be effectively adjudicated upon, and that possession of the property in dispute now with respondent No.1 (as alleged), the petitioner will not be able to get possession unless he impleads him.

6. There is no doubt, generally in suits for specific performance only the parties to the contract or those against whom the contract can to any extent be enforced should be impleaded as defendants. But, that rule is subject to the exceptions and does not debar the impleading of a person claiming an interest adversely to the vendor and the vendee when the circumstances of a case so require. If, in the present case there be no adjudication with respect to the ownership of the property in dispute as between the parties, the petitioner/ plaintiff, though he gets a decree in the present suit, may be deprived of it in litigation with respondent No.2 and thus may be forced to file another suit for compensation against the respondent No.2. In the instant case, petitioner is a necessary party to the suit and without being impleaded no effective decree can be passed in the suit at all and the matter in dispute between the parties to this litigation cannot be effectively and completely adjudicated upon. To exclude respondent No.1 from the suit may result in causing loss to the petitioner and may also lead to multiplicity of suits.

7. I have gone through the impugned order of the learned trial Court, the same is fully covered by Order I, Rule 3, C.P.C. The object of the impleading a person who is to be bound down is only to secure full and effective relief. So, it can very well be said that the plaintiff has a right to relief not only against a person against whom a relief is directly prayed for but even against a person whose presence will make a relief complete. In my view, a person who claims adversely to the vendor and vendee can be impleaded in a suit for specific performance. In this respect, I am fortified by the judgments reported as Shivashankareppa Mahadevappa Parakanhatti v. Shivappa Parappa Kutpati and others (AIR 1943 Bombay 27), A.V.K. Mayappa Chettiar v. N.K.L. Kalandaivelu Chettiar and another (AIR 1926 Madras 597) and Ramkarishna Sardar v. Sree Kanta Mondal and another (AIR 1929 Cal. 667). I, therefore, hold that the impleadment of respondent No.1 in order to bind him is quite proper.

9. For what has been discussed above, I find no illegality or irregularity or jurisdictional defect in the impugned judgment passed by the learned trial Court. Therefore, the writ petition being bereft of merits is hereby dismissed in limine. ZC/174/P Petition dismissed.