1999 PLP 2077 (CLC)

Mansoorul Arfin for Defendant No‑2 Farooq Hashim for the Intervenors (in C.M.A. No.5575 of 19961 C.M.As. Nos.5575 of 1996 6318 and 6319 of 1995 0622 of 1996 Orders on Nazir's Ref, dated 26‑10‑1995 0621 of 1996 and Orders on statement, dated 23‑9‑1997. C.M.A. No. 5575 of 1996 is an application filed by some five persons under Order I, Rule 10, C.P.C. with the prayers that they may be joined as co defendants. C.M.A. 6318 of 1995 is an application under Order VI, Rule 17, C.P.C. while C.M.A. 6319 of 1995 is an application under Order I, Rule

10. C.P.C. filed by the plaintiff seeking impleadment of K.D.A. as co‑defendant, but Mr. Munib Akhtar, learned counsel for the plaintiff does not press both these applications which are accordingly dismissed as not pressed. C.M.A. No.622 of 1996 is again an application under Order VI, Rule 17 and C.M.A. 621 of 1996 is under Order I, Rule 10, C.P.C. filed by the plaintiff seeking Karachi Metropolitan Corporation (hereinafter referred as K.M.C.) to be impleaded as one of the defendants. Mr. Mansoorul Arfin has opposed this application on the grounds that the dispute is between the plaintiffs and the defendant and, therefore, neither K.M.C. nor Karachi Building Control Authority (K.B.C.A.) is either necessary or proper party. In the instant suit, the plaintiff has challenged the construction being raised on Plot No.45/A/1, situated in Muhammad Ali Memorial Cooperative Housing Society Ltd. and are also seeking mandatory injunction in the shape of direction that the illegal and unauthorised construction raised thereon be removed by demolition. Therefore, in my view, unless K.B.C.A. and K.M.C. are before this Court, no effective relief could be granted. Accordingly, C.M.A. 621 of 1996 is granted and K. M. C. as well as K.B.C.A. are impleaded as defendants Nos.3 and 4 respectively. In so far as C.M.A. No.622 of 1996 is concerned which the p plaintiff has filed under Order VI, Rule 17, C.P.C., in my view after impleading K.M.C. and K.B.C.A., it would be necessary that para 12 of the plaint be suitably amended. In so far as substitution of prayer clause (b) and (b)(1) are concerned, it would not be necessary as now the K.M.C. and K.B.C.A. are co defendants and the relief sought by the plaintiff against defendants would equally bind these defendants in case the suit is decreed. However, to the extent of proposed para. 12, C.M.A. 622 of 1996 is granted. Plaintiff is required to file amended plaint within a period of one week and to supply copies of the same to the present defendants. After filing of amended plaint, office is directed to issue notice and summons to the newly added defendants Nos.3 and

4. Reverting to C.M.A. 5575 of 1996 which is filed by Mr. Farooq Hashim, Advocate for intervenors, it was argued by him that for all legal intent and purposes, the five persons shown in this application are necessary and proper party. In support, he has filed receipts showing that certain amounts were paid by these persons to Sana Heaven which is the project being raised on the suit property. However, the defendant No.2 has also filed his counter‑affidavit to the application under Order XXXIX and Rules 1 and 2, C.P.C. filed by the plaintiff wherein he has annexed a list of some 27 persons who have booked either flats or apartment in the project. According to this list, names of intervenors Qasim A. Satar, Hameeda Arif and Abid Arif do not transpire. Mr. Farooq Hashim has contended that there are the names of Amina Khatoon who is wife of Qasim A. Sattar and Arif Mukati who is husband of Hameeda Arif and father of Abid Arif shown in Annexure "D‑2/30". But the receipts enclosed with this application show different names. It was argued by Mr. Munib Akhtar that all these documents were manipulated and manufactured after filing of the suit in order to deprive the plaintiff of his lawful rights. Be that as it may, since there appears to be dispute pertaining to ownership by these three persons, I am not inclined to grant this application to the extent of these three intervenors. However, Mr. Farooq Hashim has shown me receipts which indicate that intervenors Nos.4 and 5 have booked Flat Nos.201 in Block "A" and 202 in Block "B". In support of the case of these two intervenors. Mr. Farooq Hashim has relied upon the case of Allah Rakhio v. Khushmir Khan and 4 others 1986 CLC 1828 where a learned Single Judge of this Court after reference to the case Islamic Republic of Pakistan v. Abdul Wali Khan PLD 1975 SC 463, held that the trial Court has rightly impleaded intervenors as defendant in the suit. Mr. Munib Akhtar, Advocate has opposed grant of this application on the ground, firstly, that these intervenors have not approached this Court with clean hands and, secondly, that they want to introduce a fresh cause of action in this suit which would make it multifarious. Reliance was placed on the case Altaf Parekh v. Deiments Construction Company 1992 CLC 700 and Pakistan Banking Council and another v. Ali Mohtaram Naqvi and others 1985 SCMR

714. On the question of the intervenors' approaching the Court with unclean hands, he has taken me through plaint which indicates that the building was being raised in clear violation of the approved building plan inasmuch as the punt approved was for a bungalow but the construction raised was upto 4th flour and reflects a compact apartment scheme. He has further argued that no N.O.C. was issued by the K.B.C.A. as provided under section 12 of the Sindh Building Control Ordinance, 1979 (hereinafter referred to as the Ordinance, 1979). This legal position has been disputed by Mr. Mansoorul Arfin who states that section 12 of the Ordinance, 1979 will come into play when a builder is disposing of a building through advertisement or by any other means and since the present flats were not sold as a result of advertisement, the provisions of section 12(1) would not come into play. In order to understand the rule laid down in the above section it would be necessary to reproduce the same:‑‑

"(12) Sale of buildings .‑‑ (1) No builder shall sell or, advertise for sale any building through any audiovisual aids or any other means before he has obtained approval in writing of the Authority, and he shall mention such fact in the advertisement which will further specify all such details about the building as may be prescribed. (2) The approval granted by the Authority under subsection (1) shall be displayed at a conspicuous place in the office of the builder, if any, and at the site of the building. (3) The builder shall not entertain and register any application made in response to the advertisement under subsection (1), if it is in excess of the number of housing unit; provided in the building .. In my view; section 12 prohibits a builder from selling any building or a portion of building either through advertisement made by means of audiovisual aids or by any other means without first obtaining approval in writing of the Authority which he is required to mention in such advertisement. If the contention of Mr. Arfin is correct, then there was no need to mention word 'sell' in subsection (1) to section 12 because the purpose could have been served by mentioning, "no builder shall advertise..." but the legislature by including word 'sell' have clearly expressed their intention that all sorts of selling ant disposal of building was prohibited without first obtaining approval in writing of the Authority. In the case of Altaf Parekh (supra) this Court has considered all such questions which arise out of a dispute pertaining to a construction. It was held, inter alia, that only such parties would be entitled which are necessary and proper in respect of the questions involved in the suit and that such intervenors should not be permitted to raise such question which is alien to the subject matter of the suit or to introduce an unconnected or a new cause of action. In such circumstances, the intervenors in that case were held to be neither necessary nor proper party. Reference was made to the case Sh. Muhammad Matin v. Mrs. Kharshedi Dosu. Marker 1983 CLC 1630 where it was held by a Division Bench of this Court that the agreement for sale did not confer any right on the intervenors except the right to file a suit for specific performance. (For further reference, see Sh. Manzoor Ahmad and others v. Iqbal Begum and others 1989 SCMR 949 and Khayaban‑e‑Iqbal (Pvt.) Ltd. and others v. Mustafa Haji Muhammad 1996 CLC 1758. In Pakistan Banking Council 1985 SCMR 714, a Full Bench of the Honourable Supreme Court held, inter alia, that a person sought to be impleaded as defendant was not shown in any manner to be concerned in his personal capacity with the subject‑matter of the suit and was held neither necessary nor proper party. It was further held that the Courts in exercising their power under Order I, Rule 10, C.P.C. should not load the record with impleading such parties who have no interest in the suit and that the trial of the suit is not embarrassed by the simultaneous investigation of totally unconnected I controversies. I am also conscious of the file laid down in the case of Multiline Associates v. Ardeshir Cowasjee and 2 others PLD 1995 SC 423 wherein at the stage of Supreme Court several persons were joined as respondents on the grounds, inter alia, that these transferees of the flats have paid huge amounts in instalments for purchase of the flats which fact was fully documented a$ receipt and other documents were annexed with their petition. However, the facts of the instant suit are quite distinguishable from that of Multiline Associates (supra). In that case, the building plan was approved by the K.B.C.A., N.O.C. was also issued by the said Authority and subsequently the deviation made in the construction was approved by the then Chief Minister. In the instant case, there is neither an approved plan nor N.O.C. As a result of the aforesaid discussion, I am quite clear 'that even the remaining two persons are neither necessary nor C proper parties as they want to introduce a fresh cause of action in this suit. Therefore this application (C.M.A. 5575 of 1996) is rejected. However, it would be open to these intervenors to file a separate suit provided they have any cause of action. Mr. Mansoorul Arfin has filed as statement, dated 23‑9‑1997 through which he wants to place on record certain documents. This request is opposed b" Mr. Munib Akhtar on the ground that these are totally unwarranted documents. Be that as it may, let these documents be kept on record subject to all just exceptions. (8) Subject to all just exceptions, Nazir's reference, dated 26‑10‑1995 is brought on record. (2 & 3) for want of time and for further arguments,' adjourned to 14‑1‑1998 at 8‑30 a.m. to be fixed at serial No.

1. H.B.T./A‑246/K Order accordingly.