1980 PLP 1065 (CLC)

Ch. Qadir Bakhsh for Appellant. The petitioner in this case is aggrieved by the order dated 24th May 1979 dismissing the revision petition filed by the petitioner against the order dated 14th January 1978 whereby an application filed by the peti tioner under Order 1, rule 10 of the C. P. C. was dismissed.

2. The brief facts of the case are that the petitioner filed a suit for declaration and permanent injunction against respondent No. 3 which was decreed by the learned trial Court on 22nd June 1974. Another suit was filed by Khan Mohammad respondent No. 6 against respondents Nos. 4 and 5 on the basis of an agreement to sell the suit land allegedly executed on 25th May 1973. It appears that on 15th July 1974 respondents Nos. 4 and 5 admitted the suit of Khan Mohammad respondent No. 6 and the suit was decreed as prayed on 12th June 1974.

3. Both the petitioners and Khan Mohammad respondent No. 6 filed cross appeals and the cases were remanded by the learned Additional District .Judge, Kasur by his order dated 25th November 1974 with the direction that the petitioner should implead the rival suitors. This order was complied with by the petitioner by impleading Khan Mohammad as a defendant in the suit. It appears that the suit filed by Khan Muhammad respondent No. 6 was dismissed by the trial Court on 13th December 1976 whereas the suit filed by the present petitioner remained pending. The petitioner moved an application under Order 1, rule 10 of the C. P. C. before the trial Court praying that since the suit filed by Khan Mohammad respondent No. 6 has been dismissed, therefore, the names of respondents Nos. 4 to 6 be deleted as they have ceased to be necessary or proper parties. By his order dated 14th January 1978 the learned trial Court dismissed the application holding that both the petitioner and respondents Nos. 4 to 6 are interested in the suit land while petitioner claims to have purchased it from Jumma respondent No. 3, respondent Nos. 4 and 5 claim to have obtained the suit land from Jumma under hiba which has been challenged by the petitioner in another suit pending between the petitioner and respondents Nos. 3, 4 and

5. Khan Mohammad respondent No. 6 claims to have acquired the right to take possession of the suit land on the basis of an agreement of sale dated 25th May 197Y~allegedly executed by respondents Nos. 4 and 5 in his favour. From these facts the learned trial Judge came to the conclusion that respondents Nos. 4, 5 and 6 were interested in the result of the suit and rejection of the plaint of the suit filed by Khan Mohammad respondent No. 6 for possession of the suit land does not make respondents Nos. 4, 5 aid 6 unnecessary parties. In the result he dismissed the application filed by the petitioner under Order 1, rule 10 of the C.P.C. The petitioner challenged the order dated 14th January 1978 by a revi sion petition before the learned Additional District Judge, Kasur who by his order dated 24th May 1979 held that Khan Mohammad respondent No. 6 was impleaded as a defendant on the direction of the learned Additional District Judge. He took note of the fact that Khan Mohammad respon dent No. 6 claims to be in possession of the disputed land. His version was supported by Jumma who submitted an application through Mr. Asghar Bashir Gora, Advocate admitting the claim of Khan Mohammad respondent No. 6 and thus recorded the finding that Khan Mohammad is an interested party.

6. Before me the learned counsel for the petitioner attempted to argue that under sub-rule (2) of rule 10 of Order I of the C.P.C. the trial Court enjoys an absolute power to add or delete any party. The learned counsel relied on the case reported as Mrs. S. M. Hanif v. Mst. Khurshid Begum and others (P L D 1961 Lah. 659) where the following observations appear at page 663 :- "Reference to rule 10 of Order I of the Civil Procedure Code would show that the Court has the power at any stage of the suit to substitute or add a plaintiff or to join any party, who is neces sary or proper, or to strike off any party, who has been impro perly joined. The Court can exercise this power irrespective of the fact whether any party applies to it or not in this behalf. It appears to me that the intention of the rule is that the power may be exercised at any stage and, therefore, it would not be in accordance with the spirit of the rule to impose an artificial restriction in this matter by invoking the provisions of Order IX, rule 9, read with section 141 of the Code. An application under Order I, rule 10 of the Civil Pro cedure Code, must, therefore, be regarded as a miscellaneous application, which is not an original matter in the nature of a suit and, therefore, not covered by section 141 of the Civil Pro cedure Code." In that case the petitioner applied under Order 1, rule 10 of the C.P.C. to be impleaded as a party in proceedings initiated by the respondent fox