P L D 1988 Karachi 61 (PLP)

By the impugned order dated 24‑10‑1985, passed by the IIIrd Senior Civil Judge, Karachi South, Mst. Mani Bai, being vendor has been joined to the pre‑emption suit brought by the applicants plaintiffs against the respondents defendants, as a proper party. Mr. M.G. Dastgir submits that she is not even a proper party and if any issue was raised on which her evidence was required she could have been examined as witness. By the application under Order 1, rule 10, CPC read with section 151, CPC the respondents /defendants had applied for joining Mst. Mani Bai as a party to the suit being vendor of the property on the ground that her presence was necessary in order to enable the Court to effectually and completely adjudicate upon and settle all questions involved in the suit. In the affidavit filed by Mr. Muhammad lqbal on behalf of the respondent/ defendant in support of the application he stated that he was advised to say that the vendor was necessary and proper party for the same reason as mentioned in the application. Now, it is well‑settled that the vendor of a property is not a necessary party to pre‑emption suit brought by pre‑emptor against the vendee. If any authority is needed reference may be had to (1) Nasir Muhammad Khan v. Fazal and others (PLD 1965 Lah. 443), (2) Hira Lal v. Ramjas (1883) 1 L R 6 ALL. 57), (3) Lok Sing v. Balwant Singh (Weekly Notes 1903, P. 239), (4) Ram Srup v. Sital Parsad and another (1904) 1 L R 26 All. 549) and (5) Harbans Tiwari v. Tota Sahu and others (1903) 3 I.S. 735) (1910) 1 L R (32) All 14). Now, the question for consideration is whether vendor is a proper party as held by the trial Court in view of the provision of sub‑rule (2) of rule 10 of Order 1, C.P.C. The following test has been Laid down by the Supreme Court of Pakistan in the case of Islamic republic of Pakistan v. Abdul wall Khan (PLD 1975 S.C. 463). 1 quote". Now a proper party is a party whose presence before the Court is necessary to enable the Court to effectually and completely adjudicate upon and settle all questions involved in the proceedings. The terms question involved' include all matters material to proper decision of the case but the object of making such persons parties is to prevent multiplicity of proceedings. The person must, therefore, be a person whose interest is likely to be affected even though no relief is Claimed against him. This does not, therefore, extend to persons who have no interest which is likely to be affected by the proceedings nor does it embrace person only generally interested in common with others nor can persons be added as parties so as to set up a new cause of action which does not concern. the original parties." Examined in the light of the above observation the attorney of the applicants in the present case has stated that the presence of the vendor is necessary as it could enable the Court to effectually and completely adjudicate upon and settle all questions involved in the suit but he has not stated in the application or in the affidavit filed in support thereof any fact which could give rise to any such question or issue concerning the vendor. Although issues have been framed but the same have not been produced nor are the same available with the learned Counsel which could show how the presence of the vendor is porper. However, Mr. Beg at the Bar submitted that the question is whether the vendor belonged to Sunni Sect or Shia Sect because, as submitted by the learned Counsel there is a difference between Sunni Law of Pre‑emption and Shia Law of Pre‑emption as contained in Section 249 of the Muhmmadan Law by NMULLA which reads as follows:‑

249. Points of difference between Sunni and Shia law of pre‑emption.‑‑ (1)According to the Shia Law, no right of pre‑emption exists in the case property owned by more than two co‑sharers. (2) The Shia law does not recognize the right of pre‑emption on the ground of vicinage, or the ground of 'participation in the appendages'. He has submitted that in the written statement he has taken the plea that the vendor was Ismaili Khoja and according to him she is governed by Shia Law of Pre‑emption. He further states that she has already filed her written statement wherein she has admitted that she is Shia Khoja. He further submits that applicant has already been examined and that no prejudice would e cause to the applicants if the vendor remains joined a party to the suit and that she has not even questioned the order by filing any revision application. Mr. Beg further submits that no case has been decided by the order impugned in this revision application and, in any case, he submits that the discretion may not be exercised in favour of the applicant V in the circumstances of the case and in support he relies on the following observation of Shafiur Rahman, J. in the Supreme 'Court decision in the case of Mst. Khurshid Begum v. MaIku and others (1983 S C M R 534) which are as follows:‑ "The large question whether the decision on such an application as was made by the appellant amounts to a "case decided' or nor be in view of the opinion that we have formed recorded at great length. Suffice it to say that an order directing the impleading party in a pending suit would not ordinarily amount to a case decided unless it has directly the effect of injuring the rights claimed or liabilities of the parties to the litigation. If it has any prejudicial effect then in so far as decisions causes the, prejudice would be a case decided and would attract the revisional jurisdiction of the High Court. Where, however, no such sinister effect is created on the rights and obligation of the parties and in fact advances the case of justice, shortens the litigation and eliminates its ,multiplicity, it would not amount to a case decided, for it will be only a procedural step directed to achieve the end of the litigation without impairing any of the rights or obligations stricto senso. In the circumstances of the case I am of the view that the joinder of the vendor is proper and not bad. In any case, following the above‑quoted observations of the Supreme Court and in view of the fact that no prejudice is shown to have been caused to the applicant, and also in view of the further facts that the vendor persuant to the impugned order has already engaged a counsel filed her written statement and the applicant has been examined as stated at the Bar I would not like to interfere in the exercise of revisional jurisdiction which is discretionary. Accordingly, I dismiss the revision application leaving the parties to bear their own costs. A. A./B-49/K Revision dismissed.