1991 PLP 1957 (MLD)

O.I, R.10

Constitution of Pakistan (1973), Art. 199

Impleading of party-- Mere presence of respondent before Court as a defendant was by no means debarring plaintiff from raising plea of lis pendens which could be more effectually and completely answered in his presence than at his back

Issue that so-called lease rights in the name of heirs of defendant had been cancelled before alleged transfer of such rights in the name of impleaded defendant would also be more properly adjudicated upon and settled in his presence

Order of impleadment of defendant as party was, held proper. Haji Ghulam Basit for Petitioner. Nemo for Respondents. Date of hearing: 19th March, 1991. MAHBOOB ALI KHAN, J: --Muhammad Hamayun Khan involved in this writ petition instituted a suit on 22-12-1982 (No.27/1 of 1982) in the Court of Civil Judge, Abbottabad against the Government of N: W.F.P., the District Council, Abbottabad and few others, that he is an owner of certain landed property comprised in Khasra No.705 (old 46 measuring 9 kanals 5 marlas detailed in the heading of the plaint) and the entries made in the revenue papers showing defendant No.1, i.e., the Provincial Government as owner of the property and defendants 3 to 8 lease-holders being against law and facts are not binding on his rights and so are the entries made in Mutation No.86 dated 31-8-1943 recorded in the name of Sain Kalu, i.e., the predecessor-in-interest of respondents 4 to 9 on behalf of the District Board (now District Council), Abbottabad. The petitioner by way of consequential relief asked for the grant of a decree for permanent injunction and possession of the landed property.

2. District Council, Abbottabad and others resisted the suit on many pleas both legal and factual including those of limitation, adverse possession and res judicata. During pendency of litigation Ali Asghar Khan (now respondent No.1 in this petition) moved an application under Order 1, Rule 10(2), C.P.C. for his impleadment in the suit as a defendant on the plea, that he had purchased certain `Pata-Dari' rights in the case land from Sain Haider Ali son of Sain Kalu in the years 1983-84. This application did not find favour with the trial Judge and was rejected on 7-9-1988. Respondent No.1 having felt aggrieved went in revision under section 115, C.P.C. to the Court of Additional District Judge, who vide his judgment and order dated 2-12-1990 allowed the petition and asked for the impleadment of respondent No.1 as a defendant in the suit. This order has now been impugned before us in the instant writ petition moved under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 as without jurisdiction, lawful authority, void and of no legal effects on the rights of the petitioner, i.e., the plaintiff of the initial suit.

3. The suit land is entered in the name of Provincial Government. One Sain Kalu had been granted certain lease rights in the suit property as back as in the year 1943 when Mutation No.86 was sanctioned in his name on 31-8-1943 on behalf of the erstwhile District Board. The said rights had devolved on his successors on the death of Sain Kalu who are Sain Haider etc. Ali Asghar Khan respondent somewhere in the year 1983-84 purchased some `Pats-Dari' rights in the suit land from Sain Haider Ali respondent No.5. He in this background asked the Court for his impleadment in the suit under Order 1, rule 10(2), C.P.C. to which the learned Civil Judge did not agree and the matter was subsequently resolved through the intervention of the Additional District Judge in revisional jurisdiction.

4. Under Order I, rule 10(2), C.P.C. the Court may strike out or add party in a suit at any stage of the proceedings, either upon or without the application of either party and on such terms and conditions as may appear to be just. The name of any person can be added as a party to a suit whether as plaintiff or defendant whose presence before the Court is deemed necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit. This rule applied to both plaintiffs and defendants and the object is to avoid the necessity of separate actions. The rule vests a discretion in Court to add parties in a suit at any stage after the presentation of the plaint or strike out their names. The parties can be classified either as necessary or proper. A person who ought to have been joined, in a suit is a necessary party and a person whose presence before the Court is necessary in order to effectually and completely adjudicate upon and settle all points involved in the suit is a proper party. In the instant case respondent Ali Asghar Khan may not be a necessary party to the suit but he is certainly a proper party. It is true that his claim of purchase of the `Pata-Dari' rights from respondent Sain Haidar Ali dates back to the years 1983-84, i.e., after the institution of the suit by Muhammad Hamayun Khan but his mere presence before the Court as a defendant would by no way debar the plaintiff from raising the plea of lis pendens which can be more effectually and completely answered in the presence of this respondent than on his back. Similarly, the issue that the so-called lease rights in the names of the heirs of Sain Kalu had been cancelled before the alleged Transfer of such rights in the name of respondent No.1 by respondent No. 5 would be more properly adjudicated upon and settled in the presence of defendant Ali Asghar Khan.

5. In this view of the matter, we do not find any substance in the allegations that the learned Additional District Judge had acted without jurisdiction and lawful authority, in recording the impugned judgment and order on the impleadment of respondent No.1 in the aforesaid suit and dismiss this petition in limine. M.A.K./1220/P Petition dismissed.