1986 PLP 443 (MLD)

Briefly stated, the admitted facts giving rise to this civil revision are that petitioner No.

1. Mat. Hamida Fida Hussain Khoja, acting through petitioner No.2, namely, Fida Hussain Khoja and one Ch. Iqbal Hussain Khoja sold a piece of land in favour of the respondent, Mst. Anees Iqbal, for Rs.80,

000. The said land is situated in Model Town, Lahore. It was alleged by the respondent that after the sale, she came to know that Mat. Hamida Fida Hussain Khoja could not sell the land. The respondent, therefore, filed a suit against Mst. Hamida Fida Hussain Khola, Fida Hussain Khoja and Ch. Iqbal Hussain for recovery of Rs.1,20,000 Rupees 80,000 on account of sale price paid by her ands Rs.40,000 as damages.

2. Paragraphs 3 and 4 of the plaint of the suit brought by the respondent made the following reading:‑‑ "

3. That at the time when the negotiation for purchasing the suit land were in progress, the defendant No.1 as well as the defendants No.2 and 3, represented that the suit land had been purchased by the defendant No.1 from Malik Ahmad Hussain son of Malik Muhammad Hussain, through a registered sale‑deed, which was also shown to the plaintiff. It was also represented that the said vendor had purchased the land in question from one Syed Mahfooz Ali Rizvi son of Sayed Mahmood Ali Rizvi who in turn purchased the same from one Akhtar Ali Wasti. The plaintiff was also shown the documents of membership with Model Town Society. It is pertinent to point out that after examining those documents, and enquiring from the office of Sub‑Registrar, the plaintiff in good faith believed the representations made gay the defendants in relation to the title of the defendant No.1. Accordingly, the plaintiff purchased property, in the manner hereinbefore mentioned.

4. That after the purchase of the suit property, the plaintiff applied for the membership of Model Town Co‑operative Housing Society. To the great surprise of the plaintiff, she was informed by the functionaries of the Society that on enquiry, it had been found that the vendor was not legally competent to sell the property in favour of the plaintiff. The plaintiff also came to know that Akhtar Alam Wasti had no title to transfer the land, in favour of Sayed Mahfooz Ali Rizvi, who accordingly could not sell the land in favour of Malik Ahmad Hussain, as alleged P. T. D. was a bogus document and the land in question is still an evacuee, having never been transferred to the said person. Consequently no title was ever passed in favour of the defendant No.

1. On further probe, it was found that the defendants were fully aware about the factum of having no title in favour of defendant No.1, but despite that fraudulent representatives were made to the plaintiff in order to obtain unlawful gain. It is pertinent to point out that the defendants in conspiracy with each other, made all these fallacious representations and, on such basis received a sum of Rs.80,000 from the plaintiff as sale price of the suit property, which property never legally vested in defendant No. l . " In their written statement, it was inter alia pleaded by the petitioners that the suit suffered from the defect of misjoinder of parties. It was explained by them that the predecessors‑in‑interest of Mat. Hamida Fida Hussain Khoja, finding mention in paragraph 3 of the plaint, were necessary parties to the suit but they had' not been impleaded as such.

3. In view of the pleadings of the parties, a civil Judge of Lahore, who was seized of the suit framed the following issues:‑‑ (1) Whether plaintiff is entitled to the recovery of Rs.1,20,000 with interest as prayed for? O.P.P. (2) Whether the suit is barred by limitation? O.P.D. (3) Whether the suit is bad for non‑joinder of necessary parties? O.P.D. (4) Whether the principle of "Caveat emptor" applicable, if so, to what extent? O. P. D. (5) Relief.

4. The case was at the stage off evidence when the petitioners made an application for impleading Malik Ahmed Hussain Syed Mahfooz Ali Rizvi and Mr. Akhtar Alam Wasti as parties to the suit. These are the same persons who were referred to by the respondent, in paragraph 3 of the plaint, as predecessor‑in‑interest of Mst. Hamida Fida Hussain Khoja. The application, which was opposed by the respondent, was dismissed by the learned Civil Judge, vide his order, dated the 22nd September, 1981. That order as been challenged by the petitioners in the instant revision.

5. It was contented y learned counsel for the 'petitioners that since evidence on issue relating to non‑joinder of parties. is yet to be recorded by the learned trial Court, it could not make the order under challenge without recording that evidence. It was also urged by him that there was no defect in the title of the petitioner No.1, Mst. Hamida Fida Hussain Khoja and since her title had been verified by the respondent herself before purchasing the land in question by going through the title deeds possessed by her (Mat. Hamida Fida Hussain Khoja's), predecessors‑in‑interest, they (her predecessors‑in‑interest) were necessary parties to the suit.

6. In reply, it was submitted y learned counsel for the respondent that the predecessors‑in‑interest of Mst. Hamida Fida Hussain Khoja were not necessary or proper parties to the suit. It was maintained by him that if some persons are required to be added as defendants in order to decide any question between them and the existing defendants in a suit, such persons would not be necessary or proper parties to the suit. According to learned counsel for the respondent, the question whether Mst. Hamida Fida Hussain Khoja had derived title from her predecessors‑in‑interest was a question concerning her and her predecessors‑in‑interest, and it was not necessary to implead her predecessors‑in‑interest as parties to the suit. Another point raised by learned counsel for the respondent was that the suit brought by the respondent was based on a covenant in the contract entered into by the respondent and the defendants in suit and since there was no privity of contract between her (respondent) and the predecessors‑in- interest of Mat. Hamida Fida Hussain Khoja, it was not necessary or proper to implead the said predecessors‑in‑interest as parties to the suit. In regard to paragraph 3 of her plaint, it was urged by learned counsel for the respondent that reference to the predecessors‑in‑interest of Mat. Hamida Fida Hussain Khoja in the said paragraph was by way of narration of facts and not for the purpose of claiming any relief against them. One additional point canvassed by learned counsel for the respondent was that if persons mentioned in paragraph 3 of the plaint are added as defendants to the suit, it will give rise to multifariousness which could not be justified on the score of the provisions of Order I, rule 10, of the Code of Civil Procedure. As regards the' decision of the application of the petitioners by the learned Civil Judge before recording any evidence on issue No.3, relating to non‑joinder of parties, it was contended by learned counsel for the respondent that the petitioners are themselves responsible for getting that decision by making application which was disposed of by the order under challenge and, therefore, they cannot object to its legality on the ground that it has been given without recording evidence on the said issue. It was added by learned counsel for the respondent that the application made by the petitioners could be decided without recording any evidence.

7. As for the objection of learned counsel for the petitioners relating to passing of the impugned order before recording any evidence on issue No.3, it is note worthy that the said order has been passed by the learned trial Court in consequence of the application made by the petitioners themselves. They are themselves to blame for the passing of the said order which has, in fact, disposed of issue No.3 as well. As submitted by learned counsel for the respondent, the said issue could be decided without recording evidence. The mere order under revision cannot, therefore, be struck down on the ground that it was passed before recording evidence on the above issue.

8. In the application giving rise to this civil revision, the only reason given by the petitioners in support of their plea for impleading the predecessors‑in‑interest of Mst. Hamida Fida Hussain Khoja as parties to the suit was that since their names were mentioned in paragraph 3 of the plaint, it was necessary that they should be made parties to the suit, in the interest of justice, and to avoid further litigation. There is no privity of contract between them and the respondent. They had not played any role in regard to the transaction of sale involved in this case. No cause of action as arisen in favour of the respondent qua the predecessors‑in‑interest of Mst. Hamida Fide Hussain Khoja. No relief is being claimed against them. If the petitioners want to establish that they had derived a good title to the disputed land before its sale in favour of the respondent, they can examine their predecessors‑in‑interest as witnesses and also place on the record the relevant documents. The fact that the respondent had verified title deeds of the predecessors‑in‑interest of Mat. Hamida Fida Hussain Khoja before purchasing the land in question from her does not furnish justification for arraying them as defendants in the suit brought by the respondent. As submitted by the learned counsel for the respondent, if the petitioners want to settle the question of title with her predecessors‑in‑interest this cannot be done by impleading them as defendants to this suit. This view finds support from the cases reported as Messrs Jana Caterers v. The Islamic Republic of Pakistan through The Chairman, Pakistan Western Railway, Lahore and 2 others P L D 1972 Lah. 169 and Ansar Ahmed v. Bank of America, Kar. P L D 1975 Kar.

252. In the case Messrs Jana Caterers, reliance was placed on Mukhi Jaramdas Jethanand and others v. Tikamal Mulchand and another A I R 1935 Sind 194 in which it was held that "question involved in the suit" refers only to questions between plaintiffs and defendants, and not to questions which may arise between co‑plaintiffs or between co‑defendants inter se. I also agree with learned counsel for the respondent that the predecessors‑in‑interest of Mat. Hamida Fida Hussain Khoja are made parties to the suit, it will give rise to multifariousness for which there is no warrant in Order I, rule 10, of the Code of Civil Procedure. It was observed in Jamilur Rehman v. Muhammad Asghar and others P L D 1968 Lah. 1076 that the plaintiff has dominus litis and no person should, a far as possible, be joined as party to suit against her, interest. As ruled in Begum Mehrunnisa v. National Building Industries Ltd., Karachi and 2 others 1972 S C M R 102, the trial Court had discretion in the matter of joinder of parties and there, appears to be nothing wrong with the exercise of discretion by it.' Keeping all these factors in view, I hold that the predecessors‑in‑interest of Mst. Hamida Fida Hussain Khoja are not necessary or proper parties to the suit brought by the respondent and thus the order under challenge does not call for any interference by this Court.

9. Resultantly, this civil revision fails. It is dismissed, with costs. A.A. Revision dismissed.