1990 PLP 1205 (CLC)

In a suit for partition of a house brought by Mst. Kausar Bibi petitioner against respondents 1 and 2, Mst. Allah Wasai and others, respondents 3 to 7, moved an application under Order I, Rule 10 C.P.C. to the trial Court for being joined as necessary parties on the ground that they were co‑sharers therein. The application was resisted with vehemence by the petitioner. The learned trial Judge, however, while accepting the application, ordered the impleadment of the respondents aforesaid as defendants vide her order dated 23‑11‑‑1988. Aggrieved by this .order, Mst. Kausar Bibi, plaintiff, preferred an appeal to the learned District Judge, D.I. Khan, who too dismissed it on 7‑9‑1989. Hence this petition in revision by Mst. Kausar Bibi petitioner.

2. S. Zafar Abbas Zaidi, the learned counsel for the petitioner, has questioned the impleadment of respondents 3 to 7 on the ground that the petitioner's suit does not relate to any inter se controvery between the heirs of Maula Dad deceased, particularly when she was living in the suit house as owner since 1981 and her title as such had never been questioned by any of the legal heirs of deceased Maula Dad. It was further submitted that the application for impleadment was mala fide with a view to prolong the proceedings.

3. None of these contentions of the learned counsel has any force. It is now a settled law that any person claiming a share in a suit for partition of immovable I A property based on the claim of co‑sharership is entitled to be joined as necessary party, Reliance can be placed on Noor Muhammad v. Zain‑ul‑Abideen (A.I.R. 1940 Allahabad 399 and Firdousi Begum v. Next of Kin (P L D 1977 Karachi 439).

4. The learned counsel for the petitioner, however, argued that having relinquished their share, respondents 3 to 7 were neither necessary nor proper parties to the suit. This argument is not legally sound. In the first case of Noor Muhammad from Allahabad High Court cited above, the learned Single Judge has enunciated the following principle of joinder of parties in a partition suit:‑ "There is accordingly in 0.20, R.18 (C.P.C) precise machinery provided for the Court to do what is to be necessarily done. The Court has therefore first to ascertain judicially who all the persons are who are interested in the land to be partitioned and then in its decree it has to declare who they are and also what their rights are In the case of Firdousi Begum cited above the application for impleading the daughter of the deceased was opposed on the ground that she was not the daughter of the deceased. Qadeeruddin J. (as his Lordship then was) left over the consideration of objection for the trial and ordered her impleadment as a party.

5. The ratio decidendi of these cases is that in a suit for partition all heirs and other persons including of course the intervenors claiming a right or interest B in the joint property are necessarily and properly to be joined as party. The mere fact that respondents 3 to 7 have allegedly alienated their share in the house in favour of the husband of the petitioner is of no consequence, because, they have controverted these allegations in their application.

6. The contention that the application was mala fide has also no force. Even if the answering respondents had not made an application for their joinder as a party to the partition suit, the trial Court after looking to the recital in dower deed qua the relinquishment of their share could have justifiably ordered their impleadment under Order XX rule 18 ibid.

7. Before proceeding further, it may be pointed out that neither the learned counsel for the appellant has brought to the notice of the learned District Judge nor the learned Judge has himself realised that an order under rule 10 ibid is not appealable. I must, therefore, hold that appeal lodged before the learned District Judge being incompetent was also liable to dismissal on this score.

8. Even the revision petition filed under section 115 C.P.C. on the authoritative pronouncement of the Supreme Court in Khurshid Begum. v. Malku(1983 S C M R 534), is also not competent because the decision on the application for impleadment as parties by respondents 3 to 7 does not amount to "case decided". The august Supreme Court in almost the same situation has held as under: "Suffice it to say that an order directing the impleading of a party in a pending suit would not ordinarily amount to a case decided unless it has directly the effect of injuring the rights claimed or liabilities of the parties to the litigation. If it has any prejudicial effect then in so far as the decision causes the prejudice would be a case decided and would attract the revisional jurisdiction of the High Court. Where, however, no such sinister effect is created on the rights and obligations of the parties and in fact advances the ‑cause of justice, shortens the litigation and eliminates its multiplicity, it would not amount to a case decided, for, it will be only a procedural step directed to achieve the end of the litigation without impairing any of the rights or obligations stricto senso:' 9 In the instant case the impleadment of the respondents 3 to 7 in fact advances the cause of justice, shortens the litigation and eliminates its multiplicity and, therefore, it does not fall within the purview of "case decided". Consequently, this revision petition is also incompetent on this ground.

10. In view of what has been discussed above, the impugned orders of the Courts below are unexceptionable. This petition has no force and is, therefore, dismissed in limine. H.B.T./988/P Petition dismissed.