2003 PLP 930 (CLC)

(ii) A declaration that the put termination of the contract vide Annex, "L-2" dated December 19, 1994, is void ab initio and without lawful authority. (iii) ............................................................................................ (iv) A permanent injunction restraining the defendant from awarding the contract dredging work to any person other than the plaintiff. (v) ............................................................................................ (vi) A permanent injunction restraining the defendant from acting on its unlawful letter of termination marked "L-3" and from directly or indirectly or in any, manner whatsoever interfering with the dredging work awarded to the plaintiff under the contract. (vii) ............................................................................................ (viii) In the alternative damages in the cum of US $ 5.00,000.00, (ix) ............................................................................................" Alongwith the suit the plaintiff tiled an interlocutory application being C.M.A. No.34 of 1995 under Order 39, rules 1 and 2 read with section

151. C.P.C. praying inter alia for grant of temporary injunction restraining KPT from awarding the contract of dredging to any person other than the plaintiff and from directly or indirectly or in any manner whatsoever interfering with the dredging work awarded to the plaintiff under the Contract. A notice of the application was issued to KPT for 10-1-1995 when Mr. Zaheeruddin Khan filed power on behalf of KPT and requested for time to file a counter-affidavit. The hearing was adjourned by consent and the Court ordered that the defendants will not, till further orders, give dredging contract in question to any other party. The interlocutory application came up for hearing several times before this Court but did not proceed, inter alia on the ground either that the counsel of one of the parties was not available or was on general adjournment. On 28-1-1999 when the matter was fixed for hearing of' C.M.A. No.34 of 1995 and for issues, the Court passed the following order:-- "Mr. Anjum Ghani submits that matter be fixed for settlement of issues and thereafter to proceed further. C.M.A. No.34 of 1995 may be taken up at the time of final disposal of the suit. Order accordingly." On 2-2-2002 defendant filed C.M.A. No.734 of 2002 requesting the Court to fix C.M.A. No.34 of 1995 for urgent hearing as it wanted to utilize the budget allocation before June. 2002 and on 31-5-2002, counsel for KPT filed C.M.A. No.4268 of 2002 requesting the Court to hear C.M.A. 734 of 2002 during vacation. The plaintiff filed counter-affidavit to C.M.As. Nos.734 of 2002 and 4812 of 2002 taking various legal and technical objections and also opposing the application on merits. It transpires that KPT published an advertisement in the Daily Dawn of 20-4-2002 giving a notice for shortly inviting tenders from Pre- qualified Contractors for Deepening of Channel to 13.5 metres below Karachi Port Chart Datum stating that the present sanctioned depth ranges from 9.1 metres to 12.2 metres, the total length of the channel is approximately 11.5 K.m. And that the proposed Dredging Depth shall be ranging from 10.5 to 13.5 m. in specified areas. It appears that on 29-5-2002 plaintiff filed an application for contempt of Court under Order 39, rule 2(3), C.P.C. read with Article 204 of the Constitution (C.M.A. No.4215 of 2002) on which the Court on 30-5-2000 ordered notice to contemnor. It further appears that on 31-5-2002 defendant filed an application under section

151. C.P.C. (C.M.A. No.4269 of 2002) for early hearing of C.M.A. No.734 of 2002. On 4-6-2002 the Court ordered notice of the application for 10-6-2002 when the two applications (C.M.As., Nos. 734 of 2002 and 4268 of 2002) were adjourned to 13-6-2002 and then to 18-6-2002 when Mr. Abdul Ghaffar. Advocate for the plaintiff' objected to hearing of C.M.A. No.734 of 2002 on the ground that the said application was not fixed for hearing on that day which objection was overruled because it was not the correct position as reflected from the Court file, The hearing was then adjourned to 19-6-2002 when Mr. Anwar Mansoor Khan and Mr. Yawar Farooqui, Advocates filed power and requested tier time on the ground that they had been engaged on the previous evening and with the consent of defendant's Advocate the hearing was adjourned to 24-6-2002 to enable Mr. Khan to prepare the case. On 24-6-2002 Mr. Atizaz Ahsan concluded his arguments and the matter was adjourned to 28-6-2002 as Mr. Khan had an appointment with his cardiologist at 1-00 p.m. On 27-6-2002 Euro Maritime (Pvt.) Ltd. filed an application under Order 1, rule 10 read with section

151. C.P.C. (C.M.A. No.4797 of 2002) to join the proceedings as a defendant in order to enable the Court effectually and completely adjudicate and settle all the questions involved in the suit on the ground that it was a necessary party in the proceedings. On 28-6-2002 when the matter came up for hearing in Court. Mr. Farrukh Zia Shaikh learned counsel fir the applicant/intervenor in support of his application oft the basis of the affidavit submitted that the intervenor at all material times and before filing of the suit had been acting as a supplier of the dredger "Abu Adil" in connection with the contract entered into between the plaintiff and the defendant. He added that the Performance Bond of US $ 230.000 had been encashed by the defendant and in case the interim order of the Court dated 10-1-1995 that the defendant will not until further order give the dredging contract in question to any other party is modified without hearing the intervenor, the latter shall suffer financially as an amount of US $ 115,000 was owed by the plaintiff to the intervenor towards the cost of mobilizing of the dredger "Abu Adil" and as such the intervenor was a necessary party in the suit. Order 1, rule 10(2), C.P.C, relating to addition of parties reads as follows;-- Court may strike out or add parties.

(2) The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined whether as plaintiff or defendant he struck out and that the name of any person who ought to have been joined whether as plaintiff or defendant or whose presence before the Court may he necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit he added.- A bare reading of the above provision clearly states that any person who ought to have been joined or whose presence before Court is essential- to enable the Court to effectually and completely adjudicate upon and settle all the questions involved in the suit may he added by Court at any stage of the proceedings. The requirement for the addition of it party is that his presence should he necessary to completely and effectually determine judicially all the questions involved in the suit, meaning thereby that if such person is not joined in the proceedings, the Court would not he able to completely and effectually determine the rights of the parties and settle all the issues involved in the legal proceedings. The provision does not mean that any person who has any distant or indirect relationship or connection with either the plaintiff or the defendant ought to he joined as a party to the proceedings. It means that the person must he directly and substantially connected with the issues which have to he adjudicated by the Court. A remote connection with the issue or the party would not make that person a necessary party without whose presence the issue cannot he adjudicated and settled. According to the prayer clause, the plaintiff' in the present suit is basically seeking a declaration that the encashment of the Bank Guarantee by the defendant is without lawful authority the purported termination of the contract is void and a permanent injunction restraining the defendant from awarding the dredging contract to any other person and in the alternative damages in the sum of US $ five million. The claim of the Euro Maritime, the Intervenor, as asserted in the application and urged by the counsel is for recovery of US $ 115,000 from the plaintiff towards the cost of the mobilization charges of the dredger "Abu Adil" at Karachi Port. The claim of the intervenor of which no detail has been given, appears to he for breach of some contract entered into by Euro Maritime with the plaintiff which is an independent dispute between him and the plaintiff. The dispute of the intervenor is allegedly with the plaintiff and has no bearing with the dispute of the plaintiff with the defendant. The claim is far-fetched and is remoter than the one alluded to in the famous Urdu couplet. The presence of the intervenor is not in any way necessary for deciding the dispute between the plaintiff and the defendant. From the bare reading of the plaint and the prayer clause, it is apparent that the question of the validity of the alleged termination of contract by the defendant and the consequential compensation/damages claimed therefore by the plaintiff from the defendant does not even remotely require the presence of Euro Maritime in any way. The Court can fully and completely adjudicate upon and settle all the questions arising from the alleged termination or the contract by the defendant without joining any third party. The presence of intervenor is neither proper nor necessary for deciding the questions involved in the present suit. The application filed by the intervenor is prima facie, contrary to the principles of Order 1, rule

10. C.P.C. and misconceived and is accordingly dismissed. The above are the reasons for the short order dated 28-6-2002 whereby the application under Order 1, rule 10, C.P.C. filed by Euro Maritime (Pvt.) Limited to join the proceedings as a party defendant was dismissed in liming. S.A.K./P-62/K Application dismissed.