2018 M L D 65
[Balochistan]
Before Muhammad Ejaz Swati, J
KHURSHID ASHRAF through Attorney and 3 others ---Petitioners
Versus
AFTAB ASHRAF and another ---Respondents
Civil Revision No.264 of 2016, decided on 6th April, 2017. (a) Civil Procedure Code (V of 1908) ---
---O. I, R. 10 (2) ---Partition Act (IV of 1893), S. 4---Suit for possession through partition---
Impleadment of a party ---Discretion of Court ---Exercise of ---Scope ---Petition for impleadment
of party was moved which was accepted by the Trial Court ---Validity ---Plaintiff in a suit being
dominus litis might choose the persons against whom he wished to litigate and could not be
compelled to sue a person against his wishes ---Discretion under O. I, R. 10(2), C.P.C. could be
exercised either suo motu or on the application of plaintiff or defendant or application of a person who was not a party to the suit ---Court could add any one as a plaintiff or as a defendant
if it found that he was necessary or proper party ---Trial Court without having any supporting
document had passed the impugned order at premature stage ---Impugned order was not
sustainable in circumstances ---Applicant after filing relevant documents might file fresh
application for impleadment as a party ---Impugned order was set aside and applicati on for
impleadment of party was dismissed ---Revision was allowed in circumstances.
PLD 2009 Kar. 227 and 1999 YLR 2559 ref.
(b) Civil Procedure Code (V of 1908) ---
---O. I, R. 10(2) ---'Necessary party' ---Meaning.
A "necessary party" is a person who oug ht to have been joined as a party and in whose
absence no effective decree could be passed at all by the court. If a "necessary party" is not impleaded, then an effective decree cannot be passed by the court.
1994 SCMR 2268; 1983 SCMR 849; PLD 1997 SC (A J&K) 28; Muhammad Shahban
and others v. The Flak Sher and others 2007 SCMR 882 rel.
(c) Civil Procedure Code (V of 1908) ---
---O. I, R. 10(2) ---'Proper party'---Meaning and object.
A "proper party" is a party, who, though not a necessary party, but whose presence would
enable the court to completely, effectively and adequately adjudicate upon all matters in dispute
in the suit, though he needs not be a person in favour of or against whom the decree is to be made. The object of making such persons parties is to prevent needless multiplicity of suits. Another object is to allow a full and final adjudication of the dispute between the parties.
2013 SCMR 602 rel.
Syed Mumtaz H. Baqri and Ms. Sabira Islam for Petitioners.
Mujeeb Hashmi for Respondents.
Date of hearing: 10th March, 2017.
JUDGMENT
MUHAMMAD EJAZ SWATI, J. ---The petitioners Nos.2, 3 and 4 had previously filed
a suit for partition, possession and mesne profit against the respondent No.1 and petitioner No.1 in respect of property bearing Khewat No.33, Khatooni No.55 measuring 13917 sq.ft. situated in Ward No.31 Tappa urban Tehsil and District Quetta. The previous suit was decreed vide judgment and decree dated 30th May 1996. On appeal i.e. R.F.A. No.15/1996 this court vide judgment dated 29th Aug ust 1997 dismissed the appeal and maintained the judgment and decree
passed by the trial Court.
2. The judgment of the High Court was assailed in appeal by the respondents before Hon'ble
Supreme Court. The appeal was also dismissed by the Hon'ble Supreme C ourt vide order dated
25th September 1998.
3. The aforesaid decree was not executed by the parties within stipulated period, therefore,
the petitioners (plaintiffs) filed fresh suit for partition in respect of same property.
4. The respondent No.1 while fi ling written statement contested the suit, however, after
filing written statement an application under Order VII, Rule 11, C.P.C. for dismissal of the suit
in view of section 11, C.P.C. was filed on the ground that the judgment and decree had already been passed between the parties in respect of same subject matter and the instant suit is not
maintainable. The suit for partition, possession and permanent injunctions was dismissed on the basis of application filed by the respondent No.1. The petitioner assa iled the same by way of
filing R.F.A. No.65 of 2013 and Civil Miscellaneous Appeal No.05 of 2013. This Court vide judgment dated 29th June 2015 while accepting R.F.A. No.65/2013 and Civil Miscellaneous Appeal No.05/2013 set aside order dated 27th February, 2013 passed by the trial Court and suit
was remanded to the trial Court for deciding the same on merits in accordance with law.
5. During the pendency of the suit an application under Order I, Rule 10, C.P.C. was filed
by the respondent No.1 for impleading Imran and Irfan as both son of Rais Allah Bakhsh Magsi and Moulana Muhammad Ali Johar Memorial Cooperative Azim Housing limited Karachi through its Hon'ory Secretary 735 Elphnistone Street, Karachi as necessary party on the ground
that the petitioners (p laintiffs) have sold out the house situated at Karachi to Imran and Irfan who
are necessary parties to be impleaded in the suit.
6. The Judicial Magistrate -IX/ Civil Judge, Quetta (hereinafter the "trial Court") vide dated
22nd April 2016 (impugned order) allowed the application and directed the plaintiffs to file
amended plaint by impleading the aforesaid party.
7. Through the instant petition, impugned order has been assailed by the petitioners
(plaintiffs).
8. The learned counsel for the petitioners contended that the respondents filed an application
under Order I Rule 10, C.P.C. in respect of property situated at Karachi which has already been adjudicated upon in the previous round of litigation and issue in respect of said property was
decided in negative and that judgment was upheld up to the Hon'ble Supreme Court. The
petitioners filed second suit in respect of properties regarding which, decree in a previous suit
was passed in favour of the parties and parties did not resort implement ation of the same through
execution, therefore, after bar of execution due to limitation second suit was filed; that in previous suit no decree in respect of the house/ property situated at Karachi, was passed, therefore, the issue in this regard had taken finality and cannot be agitated afresh, but the trial
court has failed to consider this aspect of the matter; that the respondent sought impleadment of the parties on the ground that property situated at Karachi had been sold to them, but not a single document in this respect was filed along with application, therefore, application under Order I,
Rule 10, C.P.C. was based on presumption, which is not maintainable. He placed reliance on the judgment reported in PLD 2009 Karachi 227, 1999 YLR 2559.
9. The learned counsel for the respondents contended that the previous decree was not
executed by the parties, therefore, second suit was filed by the petitioners. The property situated at Karachi was subject matter of the previous suit and that property was sold t o the persons
names mentioned in the application under Order I Rule 10, C.P.C. who are necessary party and in absence thereof the partition suit cannot be conclusively decided; that in all properties where the predecessor of the parities was owner/ shareho lder after his death devolved upon the parties
of the suit, therefore, the trial Court has rightly passed the impugned order to settle the question involved in the suit.
10. Heard the learned counsel for the parties and perused the record of the case. The
respondents filed application for impleading the parties mentioned in the application, on the ground that they had purchased the property situated at Karachi from the petitioners, which also falls in the shares of the parties, therefore, the aforesaid part ies were necessary party.
The general rule regarding impleadement of parties is that plaintiff in a suit, being
dominus litis may choose the persons against whom he wishes to litigate and cannot be compelled to sue a person against the wishes of plaintiff , but this general rule is subject to Order
I Rule 10(2) of the Code of Civil Procedure (C.P.C.), which provides for impleadmet of proper and necessary parties. The sub -rule reads as under: --
"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, be 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 be necessary in order to enable the Court effectually and completely, to adjudicate upon and settle all the questions involved in the suit, be added."
From the above, it is clear that a court may, at any stage of the proceedings either upon or
even without any application and on such terms as may appear to it to be just, direct that any of the following persons may be added as a party: --
"(a) Any person who ought to have been joined as plaintiff or defendant, but not impleaded or
(b) Any person whose presence before the court may be necessary in order to enable the court to effectively and completely adjudicate upon and settle the questi ons involved in
the suit."
A "necessary party" is a person who ought to have been joined as a party and in whose absence no effective decree could be passed at all by the court. If a "necessary party" is not impleaded, then an effective decree cannot be passed by the court. Reference is placed to cases titled 1994 SCMR 2268, 1983 SCMR 849, PLD 1997 SC (AJ&K) 28. In the case titled Muhammad Shahban and others v. The Flak Sher and others 2007 SCMR 882 the Hon'ble Supreme Court observed as under: --
"It is pertinent to mention here that respondents had not alleged that petitioners had purchased the property in question by fraud or by misrepresentation or collusion with the
petitioner No.3 or Ahmed Nawaz, therefore, learned High Court was not justified to set aside the orders of the Courts below while exercising power under section 115, C.P.C.
The impugned judgment is not in consonance with the law laid down by this Court in M. Zafar -uz-Zaman's case PLD 2001 SC 449. The petitioners have purchased the property in
question during the pendency of the suit, therefore, petitioners are proper party as law laid down by this Court in various pronouncements. See Haji Abdullah's case 1987 SCMR 1825 and Abdul Wali Khan's case PLD 1975 SC 463. It is a settled law that wide discretion is vested in the Court to add parties at any stage of the suit to avoid multiplicity
of proceedings as law laid down by this Court in Ghulam Ahmed Chaudhry's case PLD 2002 SC 615."
A "proper party" is a party, who, though not a necessary party, but whose presence would enable
the court to completely, effectively and adequately adjudicate upon all matters in dispute in the suit, though he needs not be a person in favour of or against whom the decree is to be made. The object of making such persons pa rties is to prevent needless multiplicity of suits. Another object
is to allow a full and final adjudication of the dispute between the parties. In the case reported in 2013 SCMR 602 following principles for disposal of an application for impleadment are g iven as
under:
"(1) The Court can, at any stage of the proceedings, either on an application made by
the parties or otherwise, direct impleadment of any person as party, who ought to have
been joined as plaintiff or defendant or whose presence before the C ourt is necessary for
effective and complete adjudication of the issues involved in the suit.
(2) A necessary party is the person who ought to be joined as party to the suit and in
whose absence an effective decree cannot be passed by the Court.
(3) A proper party is a person whose presence would enable the Court to completely,
effectively and properly adjudicate upon all matters and issues, though he may not be a
person in favour of or against whom a decree is to be made.
(4) If a person is not found to be a proper or necessary party, the Court does not have
the jurisdiction to order his impleadment against the wishes of the plaintiff.
(5) In a suit for specific performance, the Court can order impleadment of the
purchaser whose conduct is above board, and who files application for being joined as party within reasonable time of his acquiring knowledge about the pending litigation.
(6) However, if the applicant is guilty of contumacious conduct or is beneficiary of a
clandestine transaction or a transaction made by the owner of the suit property in
violation of the restraint order passed by the Court or the application is unduly delayed then the Court will be fully justified in declining the prayer for impleadment".
The discretion under the sub- Rule (2) of R ule 10 of Order I, C.P.C. can be exercised,
either is suo motu or on the application of the plaintiff or the defendant, or on the application of a person who is not a party to the suit. The court can add any one as a plaintiff or as a defendant if it finds that he is necessary party or proper party. In exercising its judicial discretion under Order
I Rule 10(2) of the Code (CPC) the Court must act according to the reason and fair play.
In the instant case, the parties had litigated previously on the same s ubject matter
regarding which decree dated 30th May 1996 was passed by the Civil judge -I, Quetta, which was
upheld up to the Hon'ble Supreme Court of Pakistan, the relevant is reproduced herein below: --
"Keeping in view the above results of material issues the suit is allowed and a decree for
partition and possession is passed and this is declared that the plaintiffs are entitled for 96 shares out of 224 shares. The each plaintiff is entitled for 32 shares. If the property is not partitionable then the defe ndants are directed to mutually and with consent of plaintiffs
assess that total value of the whole property and pay the amount in cash equallent to 96/224 the plaintiffs so that plaintiffs be able to get their due right/ share as per Islamic Law. The executing court can also appoint a Local Commissioner to examine the property for partition to the extent of 96/224 and put the plaintiffs in their respective charges or assess the value of the shares of the plaintiffs. Decree sheet be drawn. File be consigned to record after completion. "
Admittedly, the previous partition final decree never became effective and partition was
not actually brought to completion through the process of execution within prescribed period of limitation, therefore, the petitioners (plaintiffs) Nos.2 to 4 alongwith petitioner No.1 (plaintiff) who was defendant in the previous suit No.11/1994 have brought instant suit (second Suit
No.72/2012) for possession through partition in respect of property bearing Khewat No.33
Khatooni No.55 m easuring 13917 sq. ft situated in Ward No.31 Tappa Urban Tehsil and District,
Quetta, the respondent contested the suit and in Para No.7 of the written statement pleaded that beside house/bungalow in Quetta another house worth of Rs.15 Crores situated in M uhammad
Ali Society Karachi, which had been sold by the plaintiff, is also liable to be partitioned between
the parties. The relevant is reproduced herein below: --
"That the plaintiffs have concealed the very material facts from this Honourable court. It
is worthwhile to mention that there were 2 houses, one is Quetta which is being discussed
and the other worth 15 crores situated in Mohammad Ali Society at Karachi." ...... ............ ..... "But the plaintiffs ' malafide is evident from the fact that they illegally sold
the Karachi house and divided the proceeds against themselves."
Pursuant to above controversy between the parties, the respondent (defendant No.1) filed an application under Order I Rule 10, C.P.C. for impleadment of the parties mentioned therein on the ground that prior to filing of the instant suit, the property/ house situated at Karachi owned by their predecessor, was sold out to vendees by the plaintiffs, therefore, said vendees are necessary party. The trial Court without ha ving any supporting documents in this regard has passed the
impugned order at premature stage, as such the impugned order is not sustainable. However, the
respondent after filing relevant documents regarding shares/sale of the bungalow at Karachi to
the ve ndees may file fresh application for the purpose.
In view of the above, Civil Revision No.264 of 2016 is allowed impugned order is set
aside and application under Order I Rule 10 C.P.C. is dismissed.
ZC/57/Bal Revision allowed.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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