2010 M L D 1363
[Quetta]
Before Mrs. Syeda Tahira Safdar, J
ABDUL HALEEM ---Petitioner
Versus
Syed AHMED ALI GILANI and 7 others ---Respondents
Civil Revision No.311 of 2008, decided on 7th June, 2010.
Specific Relief Act (I of 1877) ---
----S. 42 ---Civil Procedure Code (V of 1908), O.I, R.10 & O.XXXIX, R.2 ---Suit for
declaration and permanent injunction ---Trial Court dismissed plaintiff's application
to implead six persons to whom suit pr operty was sold by defendants on the ground that
nature of the suit would be changed by impleading the said persons ---Plaintiff contended
that proposed defendants being owners of disputed property were necessary party,
therefore, no effective decree could be passed without impleading them ---Validity ---Title of
suit property was still a matter in issue between plaintiff and defendants/previous owners ---
Disputed property had, admittedly, been transferred in favour of six persons requested to be
impleaded ---Buyers of suit property having stepped into the shoes of previous owners had
become necessary party resultantly, no effective decree could be passed without impleading
them ---Trial Court had failed to appreciate provisions of relevant law---Petition was
acc e pted by allowing plaintiff's application to implead said six persons by filing
amended plaint.
Khushnood Ahmed for Petitioner.
Muhammad Riaz Ahmed for Respondents.
Date of hearing: 5th March, 2010.
JUDGMENT
MRS. SYEDA TAHIRA SAFDAR, J. ---The petitioner is aggrieved of order dated 30 -
9-2008 of Senior Civil Judge -II, Quetta, whereby the application filed by him under
Order 1 Rule 10, C.P.C. for impleading six persons, to whom the property in question
has been sold by respondents Nos.16 and 17 is rejected. He preferred present petition
with contention that trial Court wrongly observed that application has been filed with
delay. Further, failed to observe that propose defendants being owners if not impleaded
no effective decree can be passed. It h as also been wrongly observed by the trial Court
that by impleading these persons the nature of the suit will be changed. He prayed for
setting aside of impugned order and proposed defendants be impleaded.
Learned counsel for the parties are heard. The l earned counsel for petitioner contended
that there was no delay on his part in filing of the application, as the sale is admitted by
the respondents, therefore, in the circumstances no effective decree can be passed
without impleading the persons to whom t he property is sold/transferred. While in
rebuttal the learned counsel for the respondents contended that as property has been
transferred therefore, in presence of new owners new cause of action has accrued,
therefore, a new suit is required to be filed b y the petitioner. Further, contended that in
case new owners/purchasers are made party to the suit the present respondents be
deleted from the suit.
The perusal of record reveals that the petitioner filed a suit seeking declaration,
permanent injunction, possession and damages against the respondents thereby claimed
himself to be lawful owner of the property in dispute with contention that he has been
dispossessed while superstructure was demolished by the defendants in garb of
execution of decree obtaine d by them with misrepresentation. The suit was strongly
contested by the defendants thereby denying title of the petitioner in respect of property
in question. It is further apparent from papers attached with instant petition that
respondents Nos. 16 and 1 7 filed an application under Order 1 Rule 10, C.P.C. for
deletion of their names. In said application it is their contention that they have got no
concern with the property in question rather they were simple attorney of respondents
Nos. 1 to 15, afterward s on basis of this power of attorney property in question was sold
in favour of six persons named therein. Nothing has been placed on file from which it
can be apparent that what decision was taken by the trial Court while disposing of this
application. Th ereafter, the petitioner filed application under Order 1 Rule 10, C.P.C.
thereby prayed for impleading said six persons as defendants to the suit. The
respondents strongly contested the application. The learned trial Court rejected the
application on groun d that delay has been made in filing of this application, while
impleading them as party would change nature of suit.
It is apparent from pleadings of the parties that in previous round of litigation the
petitioner though tried to establish his title, bu t he was also put out of possession during
course of execution of decree made in favour of respondents. As the matter has not yet
been finally decided between the petitioner and respondents/previous owners. The title
of property in question is matter in is sue between them. As now admittedly the property
has been transferred in favour of persons namely Jameela Yousaf, Shaheen Wali, Abdul
Siddique, Allah Noor, Khudai Noor and Abdul Qadeer, while the petitioner is still
fighting to establish his title. Thus in the circumstances the persons step into shoes of
previous owners are necessary party, as in absence of them no effective decree can be
passed. Further, it is also necessary for securing the rights of new owners. In order to
avoid multiplicity of litigatio n the mentioned persons were required to be impleaded as
party. The trial Court failed to observe the relevant provision while giving findings on
no basis, which is liable to be set aside.
In view of above discussion the instant petition is accepted. The order dated 30 -9-2008
is hereby set aside. The application under Order 1 Rule 10, C.P.C. filed by the petitioner
before trial Court is allowed. He is directed to file amended plaint thereby impleading
the mentioned six persons as defendants to the suit.
Parties are left to bear their own costs.
A.R.K./70/Q Petition accepted.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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