Necessary and proper party

2024 PLD 43 KARACHI-HIGH-COURT-SINDH Judicial Precedent

Ss. 39, 42 & 54Civil Procedure Code (V of 1908), O.I, R.10Suit for cancellation, declaration and injunctionNecessary and proper partyDeterminationNew cause of action, adding ofTerm 'Dominus Litis'Scope

Applicant sought impleading of his name as defendant on the plea that he was a necessary party, as he purchased suit property from one defendant through another

Validity

Applicant did not claim any grievance against plaintiff nor the plaintiff had any concern with the applicant

If applicant had any cause of action against two defendants he could file a separate suit against them, rather he would be impleaded as a party in such suit

No person could be permitted to become a party to a suit, who has his own cause of action against the party/parties of the suit, wherein he wants to be impleaded as a party, and in case if he is allowed to become a party that would amount to adding a new cause of action in the suit

Plaintiff was a 'Dominus Litis' and ordinarily no person should be added as party against his wishes

High Court declined to allow impleading of applicant as the suit was at advanced stage and joining of proceedings by applicant would amount to unnecessary prejudice and would embarrass the plaintiff

Application was dismissed, in circumstances.

2024 MLD 1337 KARACHI-HIGH-COURT-SINDH Judicial Precedent

O.I, R.10Necessary and proper partyScope

Appellant filed an application under O. I, R. 10 of the Civil Procedure Code, 1908, in a suit instituted by the private respondents against the official respondents

Said application was dismissed and meanwhile the suit was decreed

Appellants pleaded that the subject land was acquired by them on requisite payments and they were necessary and proper party

Validity

Record reflected that the private respondents, who had filed instant suit had also filed a constitutional petition against some of the respondents including appellant No.1 and his predecessor, which was coming up and/or being fixed with present appeals

In said petition they (private respondents / plaintiffs of suit) had sought a declaration that the exchange of land was illegal and unlawful

While they impleaded the appellant No.1 and his predecessors in the petition, they (private respondents) mischievously had not arrayed appellants and/or appellant No.1 at least and/or his predecessor in interest in the civil suit and in this manner had attempted to obtain a judgment and decree in collusion with the official respondents and in fact succeeded

On acquiring knowledge before decree could be passed, the appellants moved application under O. I, R. 10, C.P.C. on which the impugned order was passed whereby summarily not only was it dismissed but the suit was also decreed on the same date despite the fact that two written statements of official respondents, out of four, were yet to be served

Incidentally one of the written statements had opposed the claim of the private respondents/plaintiff of the suit O. 1, R. 10(2), C.P.C. demands that name of the person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all questions involved in the suit, be added, but in the present case, such aspect was not given due consideration

Party has to only present a reasonable case for the indulgence of the Court, which could disclose interest in the property, which could be sufficient for the Court to add him/ them as party, which was done by the appellants in the present case

High Court set aside the impugned orders and the judgments and remanded the matter to Single Judge

Resultantly, the application under O. I, R. 10, C.P.C. was deemed to be pending before the Single Judge who shall then pass orders on it in accordance with law after providing opportunity of hearing to all the parties after notice

Appeals were allowed accordingly.

2023 CLD 253 KARACHI-HIGH-COURT-SINDH Judicial Precedent

S. 9Civil Procedure Code (V of 1908), O. I, R. 10Suit for recovery of Bank loanNecessary and proper partyScope

Suit filed by plaintiff/Bank was pending and applicant/intervener was another Bank who filed application to be impleaded as plaintiff as necessary and proper party having pari passu charge over the properties

Validity

Presence of applicant intervener was neither beneficial, nor necessary, as it was the parties to suit which could assist the Court in reaching to a conclusion for an effective decree, considering claim of plaintiff and defendant, likely to be passed in proceedings

Provision of O. I, R. 10, C.P.C. essentially sought to adjudged claim of an individual or entity as to be one whose presence before Court was necessary in order to enable the Court to effectually and competently achieve upon and settle all questions involved in the suit

Plaintiff/Bank and applicant/intervener could have been sailing in the same boat in the sense that they had respective claims for the recovery against defendants based on their respective share/bite/pari passu charge, over the properties but those independent claims could not become a claim in the suit in question

High Court declined to implead applicant/intervener as party to proceedings

Application was dismissed in circumstances.

2020 PCrLJ 742 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

O. I, R. 10Necessary and proper partyScope

Necessary or proper party to suit is that party whose presence is necessary before court to effectively adjudicate upon suit

Such party can be ordered to be impleaded in suit at any stage of proceedings.

2019 PLD 43 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

O. I, R. 10Constitution of Pakistan, Art. 199Constitutional petitionNecessary and proper partyApplicants sought their inclusion in applications as they were necessary and proper partiesValidity

Necessary parties consisted of persons who 'ought to have been joined' that was persons necessary to constitution of suit/petition without whom, no decree/order could be passed at all

Proper party was a party whose presence before court was necessary to enable the court to effectually and completely adjudicate upon and settle all questions involved in proceedings

Applicants intended to appear in main case so as to assist the court for proper adjudication of questions of law raised by petitioner who filed Constitutional petition

High Court declined to allow applicants to join proceedings as respondents on basis of such averments

Application was dismissed in circumstances.

2019 CLC 292 KARACHI-HIGH-COURT-SINDH Judicial Precedent

O.I., R.10(2)Specific Relief Act (I of 1877), S. 54Suit for permanent injunction and rendition of accountsNecessary and proper partyNo cause of actionRemoving name from plaint

Defendant company claimed that it was neither necessary nor proper party to the suit and even there was no cause of action available to plaintiff against it, therefore, its name was to be removed from the list of defendants

Validity

Provision of O. I, R. 10, C.P.C. did not mean that person who had distinct or indirect relationship or connection with either plaintiff or defendant ought to be joined but must be directly and substantially connected with the issue which had to be adjudicated by Court

Neither cartage agreement between two defendants could be classified or categorized the relationship of master and servant, employer and employee or principal and agent nor plaintiffs had any privity of contract with defendant company, which could be specifically enforced in the suit

High Court struck off name of defendant company from the array of defendants as the same was neither necessary nor proper party

Application was allowed in circumstances.

2018 MLD 866 KARACHI-HIGH-COURT-SINDH Judicial Precedent

O.I., R.10 & S.107Suit for declarationImpleadment of interveners necessary partyScopeTrans-provincial organization/ establishmentDispute with regard to applicability of provincial legislationLabour Union seeking impleadment as a party in the suitNecessary and proper partyScopeIntervener Labour Union was one of the stakeholders in the matter

If any judgment/decree was passed to the effect that provincial legislation did not apply to the trans-provincial establishment, it would affect the interest of employees as well as their union

Labour Union must be given right of audience to advance the cause of justice

Union members were engaged in Dairy Farm or manufacturing process but they were employees of one and the same establishment and group of establishments

Court had powers to add any person as plaintiff or defendant in the suit at any stage and even in appeal

Joining of party at any stag was binding in all subsequent proceedings until set aside in legal manner

Even appellate court had discretion to substitute or add any person as appellant or respondent provided they were proper and necessary party to the proceedings

Plaintiffs, in the present case, were dominus litis having real and direct interest in the decision of the case

Plaintiff in a suit might choose the persons against whom he intended to litigate and could not be compelled to sue a person against whom he did not seek any relief

Presence of intervener was necessary to enable the court of completely, effectively and adequately adjudicate upon the question in dispute

Application for impleament as party was allowed and intervener was impleaded as defendant

Plaintiff was directed to file amended title so that newly added defendant might file written statement.

2017 YLR 1579 KARACHI-HIGH-COURT-SINDH Judicial Precedent

O. I, R. 10Impleading of partiesNecessary and proper partyScope

Plaintiff in a suit is dominus litis who may choose persons against whom he wishes to litigate and he cannot be compelled to sue a person against whom he does not seek any relief

Necessary party is a person who must be joined as a party and in whose absence no effective decree can be passed at all by court

If a necessary party is not impleaded the suit itself is liable to be dismissed

Proper party is a party who though not a necessary party but is a person whose presence enables court to completely, effectively and adequately adjudicate upon all matters in dispute in suit, though he is not a person in favour of or against whom decree is to be made.

2017 MLD 1616 KARACHI-HIGH-COURT-SINDH Judicial Precedent

O. I, R. 10Necessary and proper partyScope

Only those persons are necessary and proper parties to proceedings, whose interests are challenged in suit and without their presence suit cannot be decided on merits

If a dispute in suit can be effectually adjudicated in absence of a person, such person is not necessary party to be impleaded in suit

Any person who has any distant or indirect relationship or connection with either plaintiff or defendant, such person should be joined as party to proceedings.

2014 SCMR 531 SUPREME-COURT Judicial Precedent

O. I, R. 10(2)Constitution of Pakistan, Art. 199Public interest litigationImpleadment of a party to such litigationPrinciplesNecessary and proper partyScopeParty whose "interest was likely to be prejudiced"

Constitutional petition was filed before the High Court in the nature of public interest litigation questioning the manufacturing and marketing of Woven Poly-Propylene ("WPP") bags and in such context direction was sought to stop any further procurement of such bags or any plans to store any essential daily use item like wheat in such bags

Applicant -company, which claimed to be manufacturer and supplier of WPP bags moved an application before the High Court under O.I, R. 10(2), C.P.C. to be joined as a respondent in the constitutional petition since decision of the petition was likely to affect their interest, and since it could render proper technical assistance to the court about the technical aspects of process of manufacturing of WPP bags

High Court refused said application

Validity

Held, in case constitutional petition was granted in terms of the prayer made therein, the interest of applicant-company was likely to be prejudiced considering the fact that it manufactured WPP bags

Joining of applicant-company as a respondent to the constitutional petition was not only proper but also necessary in such circumstances

Even otherwise in cases involving issues of public interest litigation, more liberal stance was needed to be taken by the courts for impleadment of parties to such litigation, to enable it to hear all the parties concerned, who were likely to be affected by any judgment in such proceedings

Order of High Court was set aside and applicant-company was allowed to be joined as a respondent to the constitutional petition

Appeal was allowed accordingly.

2014 PLD 320 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

O. I, R.10(2)Constitution of Pakistan, Art. 199Import Policy Order, 2009, R. 20Constitutional petitionPublic interest litigationNecessary and proper partyScopeImpleadment of a party to such litigationPrinciples

Petitioner filed a constitutional petition impugning the import of Carbon Dioxide (CO2) from India through Wahga Border under R.20 of Import Policy Order, 2009 and contended that there were concerns with respect to storage facilities, testing laboratory and transportation facilities at Wahga Border; that Carbon Dioxide being imported from India was of substandard quality and would affect the public health and lives of citizens

Applicants contended that they should be impleaded as respondents to the constitutional petition on account of being necessary and proper party since all of them were users of Carbon Dioxide either as direct importers or purchasers or as consumers; that since their right with respect to permits given for import would be adjudicated upon in the constitutional petition, and that their rights could be seriously prejudiced

Validity

Constitutional petition in question was on a matter of public importance

For cases involving issues of public interest litigation, more liberal stance was needed to be taken by the courts for impleadment of parties to such litigation, to enable it to hear all the parties concerned, who were likely to be affected by any judgment in such proceedings

When matters were of public importance then it was not only proper but necessary to make a person a party, whose interest was at stake in the constitutional petition and who could render proper assistance to the court about technical aspects of the issue involved

Application was accepted and applicants were allowed to join proceeding in the constitutional petition.

2013 SCMR 602 SUPREME-COURT-OF-INDIA Judicial Precedent

O. I, R. 10(2) & O. XXXIX, Rr. 1 & 2Specific Relief Act (I of 1877), S. 24Impleadment of vendee/purchaser of property to a suit for specific performance relating to the propertyNecessary and proper partyScope

Vendee/purchaser seeking its impleadment in suit for specific performance on basis of a transaction made by it in defiance of an injunction order passed by court

Application for impleadment filed belatedly

Effect

Plaintiff filed suit for specific performance of its agreement to sell to the defendant/vendor

High Court passed injunction order restraining defendant from transferring, alienating or parting with possession of suit property in any manner or from creating any third party rights therein

Defendant in contravention of the injunction order executed agreements to sell disputed property in favour of the vendees/purchasers (appellants), who in turn executed agreements to sell the same in favour of the transferee

Vendees filed application under O.1, R. 10(2), C.P.C. to be impleaded as defendants in the suit for specific performance filed by the plaintiff

Plaintiff resisted the said application by contending that the transactions entered into between the defendant, the vendees and transferee were ex facie illegal and on the basis of such transactions the vendees did not acquire any right or interest in the suit property; that vendees were not a party to the agreement to sell entered into between the plaintiff and defendant, thus, they had no locus to contest the suit, and that vendees had sought impleadment after a lapse of many years of having entered into a clandestine transaction with the defendant

High Court dismissed application of vendees by observing that it lacked bona fides because they purchased the suit property from the defendant despite injunction order of court; that even otherwise after executing the agreement to sell in favour of transferee vendees did not have any subsisting interest in the property, and that there was no tangible explanation for filing the application for impleadment after a long gap of about 8 years

Validity

In a suit for specific performance, the court could order impleadment of a vendee/purchaser whose conduct was above board, and who filed application for being joined as party within reasonable time of his acquiring knowledge about the pending litigation

If the applicant/vendee was guilty of contumacious conduct or was beneficiary of a clandestine transaction or a transaction made by the owner of the suit property in violation of a restraint order passed by the court or the application was unduly delayed then the court would be fully justified in declining the prayer for impleadment

Plaintiff had filed suit for specific performance of agreement executed by the defendant

Vendees and transferee were total strangers to said agreement and they came into the picture only when the defendant entered into a clandestine transaction with the vendees for sale of the suit property and executed the agreements for sale, which were followed by registered sale deeds and the vendees further executed agreement for sale in favour of transferee

Said transactions were in clear violation of the order of injunction passed by the High Court which had restrained defendant from alienating the suit property or creating third party interest therein

Agreements for sale and the sale deeds executed by the defendant in favour of vendees and by vendees in favour of transferee did not have any legal sanctity

Said transactions did not confer any right upon the vendees or transferee, therefore, their presence was not at all necessary for adjudication of the question whether plaintiff and defendant had entered into a binding agreement and whether plaintiff was entitled to a decree of specific performance of the said agreement

Even otherwise, after executing agreement for sale in favour of transferee, the vendees could not claim to have any subsisting legal or commercial interest in the suit property

Application for impleadment was also filed belatedly and vendees did not offer any tangible explanation as to why the same was filed after 7 years of the passing of injunction order

Vendees did not fall within the category of bona fide purchaser, therefore, their presence was not required to decide the controversy involved in the suit filed by plaintiff or for passing an effective decree

Appeal filed by vendees was dismissed accordingly.