P L D 2004 Peshawar 155 (PLP)

(3) Whether the suit is incompetent in its present form? (4) Whether the suit. is bad due to non‑joinder of necessary ;parties? (5) Whether the suit is time barred? (6) Whether the suit is properly valued for the purpose of Court‑fee and jurisdiction'? (7) Whether the suit is based on mala fide and the plaintiff has not come to the Court with clean hands, which is liable to be dismissed" (8) Whether the suit has been instituted to tease and harass the defendant and, in case of its dismissal, the defendant is entitled for special costs? (9) Whether the plaintiff is entitled to the decree for recovery of Rs.30,38,500 as prayed for? (10) Relief. The parties adduced their evidence as they willed. However, on the evaluation of the evidence the learned trial Court dismissed the suit of the appellant on merits as well as for non‑joinder of necessary parties.

4. The learned counsel appearing on behalf of the appellant has argued that in view of the warranty executed by the Company the respondent was legally obliged to replace the said machine but since he failed to do so, therefore, the appellant was entitled to receive the price of the machine as well as the damages for the loss that he incurred due to stoppage of his business. He contended that sufficient evidence was produced by the appellant establishing, his claim against the respondent but the learned trial Court has failed to appreciate the evidence of the appellant in its true perspective.

5. In view of the contention of the learned counsel for the appellant and the evidence led by him it becomes clear that the pivotal document in the instant case was the warranty which was made the basis of the claim of the appellant. A bare perusal of this warranty indicates that the same has been issued by the company, i.e., EMMS (Pvt) Ltd. and is not executed by the respondent. Interestingly, the appellant has not sued the company which issued the warranty in favour of the appellant. The respondent Munim S. Mir has been sued individually by name. Obviously the liability for the repair of the machine or replacement of the defective parts has been incurred by the company and not by the respondent. Alive to this feature of the case of the respondent on 22‑5‑1996 made an application in the trial Court wherein the respondent was asked to clarify whether the appellant wants to proceed with the matter on the basis of the same plaint or it is fraught with some legal infirmity as the appellant did not suffer any loss due to any act or omission of the respondent. Then in the written statement vide para. 4 thereof a clear cut objection was raised that the respondent had not executed any warranty in favour of the appellant and as the transaction took place between the appellant and the EMMS (Pvt) Ltd., therefore, the warranty is a matter between the appellant and the EMMS Company. It was further averred in para. 6 of the written statement that the respondent has no concern with the dispute in his private capacity. Resultantly, an issue on this point was also framed on which the findings were cast against the appellant.

6. It may be mentioned that despite such vivid objection by the respondent the plaintiff did not bother to make any request to the trial Court for amendment of the plaint so as to implead the EMMS Company as a defendant.

7. When the learned counsel for the appellant was confronted with this dimension of the matter he felt difficult to offer any answer rather it was admitted that the EMMS Company was the necessary party and, it should have been impleaded. He, however, made an endeavour to cover up such infirmity by arguing that since one of the witness namely Sahib Zada Muhammad Umar being a Secretary of the company EMMS (Pvt) Ltd., appeared as D.W.1, therefore, it should be presumed that EMMS had participated in the proceedings as a defendant. We are afraid the contention of the learned counsel has got no force. Admittedly, the sole basis of the appellant for his claim was the warranty and the same was issued by the EMMS (Pvt.) Ltd., which is an Agent of Korean Company and as such not only that EMMS was a necessary party but the cause of action if any had accrued in favour of the appellant was against the said company. Un controvertedly the transaction was in between the appellant, and EMMS (Pvt.) Ltd., which admittedly was the issuer of the warranty. At least when the objection with regard to the non‑joinder/misjoinder of the parties was raised and it came to the knowledge of the appellant, the appellant was legally obliged to have asked for the impleadment of EMMS (Pvt) Ltd., which he failed. D.W.1 has categorically stated in his statement that the respondent had not entered into a transaction with the appellant in his private capacity nor the respondent had sold the machine to the appellant in his private capacity. This segment of the statement was not questioned by the appellant. The proposition of non‑joinder of the necessary party has been elaborately dealt with in a number of judgments. In Thakar Hari Ram v. Central Government through Secretary Commerce Department, Delhi, A.I.R. 1941 Lah, 120, a necessary party to an action, appeal or other proceedings was defined as the one whose presence on the record is enjoined by law or in whose absence no effective decision can at all be given. It was also laid down therein: "It is the duty of the person bringing the action, appeal or proceeding to implead all necessary parties to it and his omission to do so a fatal defect which if not remedied with the permission of the Court within the period prescribed by law results in its dismissal. The above definition of a necessary party was approved in Gul Muhammad and another v. Mir Zaman and another PLD 1954 Lah.

406. To the same effect is also the case of National Bank of Pakistan v. Syed Muzammal Hussain PLD 1965, (W.P) Karachi

633. The same view was followed in PLD 1987 Lah.

387. In case of Muhammad Din v. Sher Muhammad 1999 CLC 1526 it was observed that the non‑impleading of a necessary party would render an appeal incompetent and where a necessary party is not impleaded a revision petition becomes competent because a suit cannot proceed in the absence of necessary party.

8. In the light of the above discussion we also hold that .a suit cannot proceed in absence of a necessary party and the necessary party is that without which no effective decree, can be passed. In the instant case the executant of the warranty, i.e., EMMS (Pvt) Ltd., has not been impleaded as a defendant, therefore, the very suit of the petitioner was incompetent. Thus on this score alone we feel that the suit of the appellant was incompetent and we feel no justification in making interference in the judgment and decree of the trial Court. Resultantly, this appeal is dismissed. H.B.T./106/P Appeal dismissed.