1998 PLP 9 (MLD)

(3) Hussain Mills Ltd. v. Abdul Rasheed Khan and another (1984 CLC 2452); (4) Altaf Parekh v. Deiments Construction Company (1992 CLC 700); (5) Mst. Huma Ghauri v. Zahiruddin and 4 others (1985 CLC 762); and (6) Ahmed Din v. Muhammad Bashir and 6 others (NLR 1992 Civil 250). Mr. Suleman Kassim, Advocate for the intervenors has taken me through several documents in support of these applications, indicating that the present intervenors are allottees of several industrial plots carved out of suit property. It has not been denied by any of the intervenors that the plots allotted to them by the K.D.A. are not the property in suit. According to the learned counsel, since these intervenors are lawful and bona fide allottees of the properties, they would be adversely affected, in case the suit of the plaintiff is decreed and, therefore, they being necessary parties are entitled to be joined as defendants. In alternate, it was argued that in case of any violation of this Court's order the alleged contemners are liable to be punished, but the transaction is protected and, therefore, according to the learned counsel, the intervenors who were not aware of this Court's order and they being lawful allottees are necessary parties and entitled to be joined as defendants. In support of his contentions he has referred to the following cases:-- (1) Mst. Saeeda Akhtar and others v. Laldin and others (PLD 1981 Lahore 623); (2) Shadi Muhammad and others v. Abdur Rasheed and others (1994 MLD 1856); (3) Suleman Zulfiqar Mehdi v. Habibur Rehman and others (1986 MLD 195); (4) Mst. Jannat and others v. Arab and others (1987 MLD 2266); (5) Muhammad Humayun Khan and others v. Ali Asghar and others (1991 MLD 1957); (6) Muhammad Siddique v. Yahya Khan (1994 CLC 1374); and (7) Muhammad Arshad and another v. Mst. Firduasia Begum and 4 others (1994 CLC 1967). I have gone through the pleadings of the parties as well as through the documents filed by the proposed defendants/intervenors. There are certain facts in this case which have not been specifically denied by the present defendants which may be summerised as follows: -- (i) That a piece of land about 134 x 380 sq. ft. measuring 5600 sq. yards was lying vacant in front of the factory premises of the plaintiff, for which the plaintiff approached the then Chief Minister, who passed the orders for allotment of the said piece of land without 'summary'. These facts were alleged by the plaintiff vide paras. 9, 11 and 14 of the plaint. Although, the defendant No. l has denied in its counter-affidavit about the allegations made in these paras but have admitted contents of para. 14 of the plaint to the 'extent that the Chief Minister of Sindh, who is the competent Authority, has passed the orders as claimed by the plaintiff. The defendant No.2 has taken two mutually destructive pleas. In reply to paras. 9 and 10 of the plaint, it is claimed by the defendant No.2 that the area, as pointed out by the plaintiff, was kept for railway reservation as per approved plan. However, it was admitted by the Defendant No.2 that the Chief Minister has passed orders for allotment of this land to the plaintiff without summary. In the same para., this defendant has also admitted that vide drawing No .K-768 dated 15-7-1990 the said defendant has created an industrial plot of about 1000 sq. yards. Nowhere in both these written statements or even in the counter-affidavits to the' injunction application, these defendants have stated how and in what manner these five industrial plots carved out of the suit land, which was earlier marked allocated for railway reservation, were allotted to the present intervenors. (ii) That all the intervenors were allotted these industrial plots after 3- 11-1991 when Civil Miscellaneous Application No.4038 of 1991 was granted, as prayed by this Court. It is an admitted position that intervenor Nawaz son of Late Haji Muhammad Safdar was allotted Industrial Plot No. 119 on 7-1-1992, intervenor Muhammad Ibrahim was allotted Plot No. 121 on 29-8-1992, intervenor Mst. Farida Khanum was allotted Industrial Plot No. 116 on 7-3-1992 and intervenor M/s Pak Leather Crafts Limited acquired rights of Industrial Plot Nos. 118 and 117 on 17-3-1992 as both these plots were transferred to this intervenor which were initially allotted to M/s Noor Traders and M.K. Traders in the month of January, 1992. In view of the above noted facts, the question which arises for consideration is that whether these intervenors, who were allotted the plots after passing of interim injunction are entitled to join in the suit as defendants? With this view, I would like to examine the case-law cited at Bar by both the learned counsel. In Abdul Rasul and 6 others (PLD 1973 Karachi 606), a learned Single Judge of this Court allowed the civil revision application and set aside the order of the appellate Court, through which certain persons who were not parties to the suit in the trial Court were joined as respondents at the appeal stage. It was held that by impleading said persons at the appellate stage would enlarge the controversy in appeal and would set up an independent claim against the plaintiff. In Muhammad Ramzan (1979 CLC 95), a learned Single Judge of Lahore High Court held that impleading or joining any person as defendant under Order I, Rule 10, C.P.C. is for the purpose of settling all the questions involved in the suit and not to introduce new controversy in the suit or to change its character altogether "even though controversy may be relatable to the property in dispute." (Underlining is mine.) In this case the learned Single Judge of Lahore High Court followed the case of H. Sitaramaya v. Ramappay and others (AIR 1980 Madras 1137). In Hussain Mills Limited (1984 CLC 2452), a learned Single Judge allowed the Civil Revision Petition and set aside the order of the Civil Judge, through which application under Order 1, Rule 10, C.P.C. was dismissed. It was also observed that the application of such nature must not be granted if its grant impleads a person through which the nature of suit is altered. In Huma Ghauri (1985 CLC 762), it was held by a learned Single Judge of Lahore High Court that striking out or adding of necessary parties must not be allowed to change the character of suit and that while considering such application, contents of plaint could only be noticed. In Ahmed Din (NLR 1992 Civil 250), a writ petition was dismissed by the Lahore High Court. It was held that where a person has become interested in the quit property by some chance was not treated good ground for joining such person in the suit. In the last cited case by the plaintiff Altaf Parekh (1992 CLC 700), a learned Single Judge of this Court, Mr. G.H. Malik, J. (as he then was) after considering nearly all the cases as discussed hereinbefore, dismissed an application under Order I, Rule 10, C.P.C. filed in a suit for declaration, permanent injunction, possession and damages. In this last reported case one lady Mst. Shamim Fatima prayed to the Court that she be joined as defendant on the ground that she has purchased this property from the plaintiff and further claimed that the defendant K.D.A. has allotted the suit plot to her. Her application was dismissed on the consideration, inter alia, that it amounts to introducing new cause of action and that such person cannot be permitted to become a party to the suit; that plaintiff is a dominus lids and that no party should be added as party to a suit against the wishes of the plaintiff. Following is the relevant para in the case of Altaf Parekh:-- "It appears from the above cases that the expression 'questions involved in the suit' in Order 1, Rule 10(2), C.P.C. has reference to only those questions which arise between the parties to the suit. It may, however, be necessary in order to effectually and completely determine all such questions to consider points or material which have not been raised or brought before the Court by the parties to the suit but by third parties; and in that case the person who raises such points or brings such material before the Court as is relevant for determining the question involved in the suit is a proper party and may be impleaded as such. Such points or material, however, should not be such as will extend the scope of the controversy between the parties or add a new cause of action unconnected with the original cause of action. The question involved in the present case is whether the plaintiff is the owner of the property and whether he is entitled to the possession thereof; and, as stated above, it is not clear what question arises on the allegations contained in the application of the intervenor/applicant. The only possible question, if any, that may arise is whether the applicant has derived any interest in the property from the plaintiff or the defendant. That, however, is an entirely separate matter and is not a question involved in the suit. Further, the question raised by the applicant is not relevant for determining the controversy between the parties to the suit. The applicant is, therefore, neither, necessary nor proper party to the suit." (Underlining is mine.) Now, I proceed to examine the case-law cited by Mr. Suleman Kassim. In Mst. Saeeda Akhtar (PLD 1981 Lahore 623), it was held by a Division Bench of Lahore High Court that a sale effected in violation of Court's prohibitory orders merely entail penal consequences for the purchaser of such property but the orders do not detract from validity of the sale. In this case a learned Division Bench of Lahore High Court made reference to the case of Beli Ram and Brothers v. Ram Lal and others (AIR 1925 Lahore 644). In the case of Suleman Zulfiqar (1986 MLD 195) it was held by a learned Division Bench of this Court comprising of Mr. K.A. Ghani and Mr. Naeemuddin, J.J., (as their Lordships then were) that where a party is in possession of the property in lieu of an agreement to sell and is having a vital interest in the property such party is entitled to be impleaded in the suit for fair and just adjudication; for the purpose of avoiding multiplicity of proceedings; to advance cause of justice; to shorten litigation and to eliminate chances of fraud and collusion. The rule laid down by the Hon'ble Supreme Court in the case of Mst. Khursheed v. Malika and others (1983 SCMR 534) was followed by the said Division Bench. In Mst. Jannat and others (1987 MLD 2266), a learned Single Judge of this Court defined the expression "proper party" as a party whose presence before the Court is necessary to enable the Court to effectually and completely adjudicate and settle all questions involved in the suit. It was further held that the term "question involved" includes all matters material to a proper decision of the case with the purpose to prevent multiplicity of proceedings. The learned Single Judge followed the dictum laid down by the Hon'ble Supreme Court in the case of Pakistan v. Abdul Wali Khan (PLD 1975 SC 463). In Muhammad Humayun (1991 MLD 1957) the Lahore High Court dismissed a writ petition and upheld the order of Additional District Judge impleading respondent No. 1 as one of the defendant in the suit. In this case, it was held by a Division Bench of Lahore High Court that one Ali Asghar Khan's presence before the Court was necessary to effectually and completely adjudicate upon and settle all points involved in the suit as the said person was a proper party. In Muhammad Siddiq (1994 CLC 1374) it was held by a Single Judge of Lahore High Court that in a matter of University, Provincial Government was necessary party and, therefore, the Court was obliged to implead the Government as necessary party in the case and was not justified to decree the suit without first impleading the Provincial Government as one of the parties and that no party should be saddled with liability without affording an opportunity to defend itself. It was further held that the adjudication of the dispute is to be done in one forum to avoid any conflicting or contradictory decisions. In Muhammad Arshad (1994 CLC 1967) it was held by a Single Judge of Lahore High Court that a defendant who was a party to a previous litigation was necessary and proper party and impleadment of such party was necessary even to decide the plea of res judicata raised by the other defendants. In this reported case, the party seeking to be joined as one of the defendants was also a joint owner/co-sharer of the property in suit. It is a settled law that a party, even if not a necessary party, is to be impleaded, if it appears that such party is a proper party and in his absence all the issues and questions involved in a suit cannot be effectually and completely adjudicated. It is not necessary that the plaintiff must seek relief against such proposed defendant. In my view, if a suit is to be decreed and by such decree any party is going to be adversely affected then such party is necessary party and it is essential that it should be present before the Court. It is also a settled principle of law that the Court should avoid multiplicity of proceedings and shorten the litigation. In the case of Mst. Amina Begum and others v. Mehar Ghulam Dastgir (PLD 1978 SC 220), it was held that a discretion is vested in this behalf in the Courts to be judicially exercised in proper cases in order to avoid multiplicity of proceedings, to shorten litigation, and tot do complete justice between the parties and mould the relief according to the altered circumstances in the larger interest of justice. In the instant case, if the intervenors are not impleaded as defendants there exists every likelihood that E they may file separate suits to protect their rights which would amount to promoting litigation and may also result in conflicting judgments. As far as Mr. Muhammad Sharif's objection that a contemner is not entitled to any relief, including the relief to be impleaded as defendant is concerned, it would suffice to observe that this would be an issue before the Court during the trial as to what should be the consequence of all such allotments/transfer of the properties in violation of an order of injunction granted by this Court. Even this issue cannot be decided in. absence of these intervenors. Therefore, I am of the considered view that it -would be in the interest of justice, equity, and good conscious that these applications be granted. I am also of the view that for the purpose of full and fair adjudication of all issues and questions involved in the suit; in order to avoid multiplicity of proceedings; to shorten litigation and to avoid conflicting judgments, the intervenors appear to be necessary parties and are entitled to be joined as defendants. As a result of this finding, I grant both the applications (CMA-1626/92 & CMA 3139/93) subject to all just exceptions. Four weeks' time is granted to the plaintiff to file amended plaint. The plaintiff is further directed to supply copies of the amended plaint to the respective defendants, who, if choose so, may file their amended written statements. A.A./M-208/K Application accepted.