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Letters Patent Appeal No. 17 of 1965, decided on 9th February 1968.

O. I, r. 10(2), O. XLVII, r. 2 and S. 151‑Review‑Parties to suit‑Question of impleading or not impleading a party‑Matter of procedure pure and simple Such question can be reviewed bout under S. 151 in exercise of inherent powers of Court and under provisions of O. I, r. 10 (2)‑‑ Provisions of O. XLVII, r. 2 not applicable in such cases and cannot operate as bar for striking out name of party found to be improperly impleaded.

V. R. S. S. Chidambaram Chettiar v. P. L. N. K. Subramanian Chettiar and others A I R 1927 Mad. 834; .4mbadas v. Pandu and anothers 57 I C 784; Muhammad Ishaq v. Mst. Jamila Begum and others P L D 1955 Lah. 644 aced Am in v. Rapheal Tuck & Sons Ltd. (1956) 1 All. E R 273 ref.

Harlal and others v. Subhkaran and others A I R 1952 Raj, 134 distinguished.

Mst. Allah Rakhi v. Mst. Raj Bibi and others P L D 1957 Lab. 70 ; Razia Begum v. Iqbal Begum and others P L D 1957 Lah. 1040 and Raja and others v. Hussain and others P L D 1957 Lah. 52 rel.

O. I, r. 10 (2)‑Parties to suit‑Paramount consideration in impleading proper parties‑ Avoidance of multiplicity of suits‑Plaintiff has dominus litis‑No person should, as far as possible, be joined as party to suit against his wishes.

Doraiswami Gondan v. Subramania Mudaliar A I R 1950 Mad. 659; Hari Ram v. The Central Government through the secretary, Commerce Department, Delhi I L R 21 Lah. 745; Haji Abdul Wahab v. Karachi Municipal Corporation P L D 1956 Kar. 391; Muhammad Ishaq v. Mst. Jamila Begum P L D 1955 Lab. 644; Razia Bagum v. Sahibzadi Anwar Begum A I R 1958 And. Prad. 195; Motiram Motharam Patel v. Lalchand Gulabchand Marwadi A I R 1937 Nag. 121; Anjaneya Sastri v. Kothandapani Chettiar and others A I R 1936 Mad. 449 and B. Brij Narain v. B. H. K. Dhoan A I R 1942 Oudh 366 ref.

Tajammal Hussain for Appellant.

Kh. Wali Muhammad for Respondent No. 1.

Sh. Bashir Ahmad for Respondent No. 2.

Nemo for Respondent No. 3.

Dates of hearing :31st January and 1^st February 1968.

This Letters Patent Appeal is directed against the order dated the 8th of February 1965, of a learned Single Judge of this Court in Civil Miscellaneous No. 518 (in Civil Original Nos. 18/19 of 1964). By this order the learned Single Judge held that the appellant Jamilur Rahman is neither a necessary nor a proper party to the suit and, as a consequence, struck out his name from the array of defendants.

2. Briefly, the facts leading to this appeal are that Muhammad Asghar, respondent No. 1, on 4th of March 1963, brought a suit for possession by pre‑emption of land comprised in Khasra Nos. 2762, 2765, 2764, 2758, 2759, 2760, 2761 and 2763, situated in the revenue estate of Serad Saleh, Tahsil Haripur, District Abbottabad, against respondent No. 2, allegedly on the ground that he is a co‑sharer in the Khata in which the land in dispute is comprised and has a preferential right to acquire the land sold to the defendant (respondent No. 2). The suit was pending in the Court of Civil Judge, Haripur. Jamilur Raliman, the appellant, on 9th of April 1963, moved an application that he was a necessary party to the suit and asserted that the allegation of respondent No. 1 that he had purchased from the appellant a share in tire Khata in dispute was not maintainable in law because the transaction of the alleged sale took place during his minority, that he intended to file a suit for the cancellation of that sale and that either lie should be impleaded as a party to the suit or, in the alternative, the suit should be stayed till the final decision of the suit which he was contemplating to file. This application was dismissed for default on the 20th of April 1963. The learned Civil Judge, Haripur, by order dated the 26th of April 1963, dismissed the application for restoration on the observation that the land against which Jamilur Rahman wished to proceed was not in dispute in the suit and, therefore, he was not a necessary party to it, pointing out at the same time that he could file a separate suit in order to establish his claim.

3. On the 11th of May 1963, respondent No. 2 (defendant vendee) applied under Order 1, rule 10, of the Code of Civil Procedure (hereinafter referred to as the Code), to the Court of Civil Judge, Haripur, for impleading Jamilur Rahman, the appellant, as a party to the suit. He alleged that the sale on the basis of which respondent No. 1 was claiming to be a co‑sharer in the land in dispute took place during the minority of appellant Jamilur Rahman and, as such, was void and legally inoperative. He further alleged that by deed of exchange dated the 13th of April 1963, appellant Jamilur Rahman had transferred one Marla of land in the Khata in question, along with a share in the Shamilat land, to respondent No. 2 and thereby the latter had improved upon his status to successfully defeat the claim of respondent No. 1. He, therefore, claimed that in order to finally and completely determine all the disputes arising, or likely to arise, between the parties, Jamilur Rahman is a necessary and proper party to the suit and should be impleaded as such, This application was granted by the learned Civil Judge, Haripur, on the 6th of June 1963, with the following observations :‑‑‑

"The learned counsel for the defendant agreed that Jamilur Rahman is not a necessary party as for the present case is concerned, but he contended that Jamilur Rahman is a proper party, because the defence embodied in issue No. 7 was open to the defendant to be raised by hire and, hence, in accordance with it, issue No. 7 was framed. He further contended that this issue which has properly been framed cannot by decided in the absence of Jamilur Rahman.

It is evident that the defendant could deny the superior pre‑emption right of the plaintiff. It is also clear that he could allege that the plaintiff has acquired rights to the property, on which he based his pre‑emption right, during the minority of his vendor and thus the plaintiff acquired no rights at all. All these allegations were consolidated in issue No. 7. No objection has been taken to the framing of the issues.

It is clear that issue No. 7 cannot be decided in tire absence of Jamilur Rahman and hence he is a proper party. Whether he is impleaded or not, this issue has got to be decided one way or the other and, hence, it will be most appropriate to join him as a proper party, otherwise the parties might be thrown in multiple litigation with dangers of contradictory results, e g., it may be held in the present suit that Jamilur Rahman was major at the time of sale and in a suit instituted by him it may b: held that he was minor at that time. Thus, though not a necessary party, it is patent that Jamilur Rahman is a proper party and he shall be impleaded as such."

Accordingly, appellant Jamilur Rahman was impleaded as defendant No. 2 to the original suit, and shown as such in the plaint.

4. Respondent No. 1, thereafter moved an application for the transfer of the case, from the Court of the Civil Judge, Haripur, to the High Court, on its original side, on the ground that Mr. Muhammad Daud Khan, respondent No. 2, then being the Senior Judge of the High Court of West Pakistan, Peshawar Bench, to the administrative jurisdiction of which the Court of the Civil Judge, Haripur, fell, the learned Civil Judge was not likely to take a detached view of the dispute between the parties. Tile learned Chief Justice transferred the case to the High Court and entrusted it to Muhammad Akram, J. for disposal on merits.

5. After the transfer of the case to the High Court, respondent No. 1 moved an application under Order I, rule 10 (2) of the Code for striking out the name of Jamilur Rahman as defendant in the suit and also for the deletion of issue No. 7, framed by the learned Civil Judge, Haripur. The learned Single Judge in the order impugned before us has only dealt with the question whether Jamilur Rahman appellant is a necessary or proper party to the suit. In fact, it is conceded before him that he was not a necessary party, but after hearing the arguments cps the learned counsel for the parties, the learned Single judge has held that appellant Jamilur Rahman was neither a necessary nor a proper party to the suit. In this connection, he has observed as under :‑

"relying on the provisions of Order 1, rule 10 (2) of the Code, it is contended for the defendants that it is open to the Court at any stage of the proceedings to implead any person who ought to have joined as a defendant or whose presence before the Court may be necessary in order to enable the Court to effectually and completely adjudicate upon and settle all the questions involved in the case. There is no doubt that this provision in the Code gives a wide discretion to the Court to Direct every case of defect of the parties. In my opinion, however, his discretion is subject to the limitation that the Court has no power to join a person as a defendant in a suit if he could not have been originally impleaded by the plaintiff under Order I, rule 3 of the Code of Civil Procedure. In V. R. S. S. Chidambaram Chettiar v, P. L. N. K. Subramanian Chettlar and others A I R 1927 Mad. 834 it was held that Order I, rule 10, C. P. C. is subject to rule 1 of that order and if the joinder of plaintiffs is impossible under Order I, rule 1, it does not become possible under Order I, rule 10. Similarly in Ambadas v. Panda and another 57 I C 784. it was held that Order J, rule 10 of the Code does not empower a Court to add any person as plaintiff who could not have joined originally as such. I am aware of certain decisions under Order 1, rule 10 to the effect that it is not necessary that the relief in the suit may be claimed against toe person who is impleaded for an effective adjudication of the case; the prayer for the relief may be directed a against one party brat in order to ensure that the relief is effective It may be necessary to bind another person Muhammad Ishaq v. Mst. Jamila Begum arid others P L D 1955 Lah. 644 is a case belonging to that category. But in all those cases the party was impleaded to grant full and effective relief in the suit. In the present suit no such consideration arises at all. The plaintiff, if he were to succeed, can obtain the full and effective relief for possession of the land in suit against the vendee even in the absence of Jamilur Rahman. Under Order I, rule 10, C. P. C., a person would be a necessary party if lie ought to have been joked, that is to say, in whose absence no effective decree can be passed at all. He would be a proper party to be impleaded if his presence is necessary for an effectual and complete adjudication. In Amon v. Rapheal Tuck & Sons Ltd. (1956) 1 All. E R 273 A' brought an action against B' for breach of confidence to A'. It was held that it may be convenient for B' to have C', whose evidence he requires on his behalf on that issue but it cannot be said that 'C's presence as a party is necessary to the case. In the present suit as well Jamilur Rahman may or may not be a competent witness but that does not mean that his presence as a party before this Court is necessary. He has no interest in the suit property.

For the fore going reasons I hold that Jamilur Rahman defendant No. 2, is neither nor a proper party to the suit and his name must be struck off, especially as in this suit the plaintiff has objection to his presence."

It is this order of the learned Single Judge which is being challenged in the present Letters Patent Appeal before us.

6. It may, perhaps, be pertinent to mention at this stage that respondent No. 2, Mr. Muhammad Daud Khan, moved an application to this Court to be transposed as a co‑appellant in this appeal, but that application was not pressed, because we allowed Sheikh Bashir Ahmad, his learned counsel, to support the case of the appellant before us.

7. In support of the appeal, Messrs Bashir Abroad and Tajammul Husain, learned counsel for respondent No. 2 and the appellant, have urged two points‑

Firstly, that the learned Single Judge had no jurisdiction to review the order of his predecessor, in view of the provisions of Order XLVII, rule 2, C. P. Code, and

Secondly, that the appellant is a proper party to the suit and was rightly impleaded as a defendant to it,

We propose to take up these questions separately.

8. The first objection that the learned Single Judge had no jurisdiction to review the order of his learned predecessor in view of the provisions of Order XLVII, rule 2, of the Code has not impressed us. The contention of the learned counsel that under Order XLVII, rule 2, the learned Single Judge, being the successor of the Civil Judge, Haripur, was not entitled to review the latter's order dated the 6th of June 1963, would have had much force had it been a case of reviewing the previous order simpliciter. Mr. Bashir Ahmad has referred us to a decision of the foreign jurisdiction reported as Harlal and others v. Subhkaran and others (A I R 1952 Raj. 134). In that case a review application was made to the Ijlas‑i‑Khas (His Highness the Maharaja) of the former State of Jodhpur, to which Order XLVII, rule 2, C. P. Code applied, but no notice was issued by His Highness the Maharaja. It was issued by the new High Court of Rajasthan which was the successor to the Ijlas‑i‑Khas. On these facts it was held that as no notice was issued by His Highness the Maharaja (the Ijlas‑i‑Khas), who passed the decree, the High Court, which was the successor to the Ijlas‑i‑Khas could not dispose of the application for review in view of Order XLVII, rule 2. This case is distinguishable for a number of reasons. It will be noticed that the order of the Civil Judge, Haripur, was of an interlocutory nature, relating merely to a procedural matter, namely, the impleading of the appellant as a party to the suit. We are of the view that in respect of such orders the Court has inherent power to review 4 them under section 151 of the Code. This view was taken) by Kaikaus, J., as he then was, in Mst. Allah Rakhi v. Mst. Raj Bibi and others (P L D 1957 Lah. 70). It was held by his Lordship that with respect to procedural matters there exists in the Court inherent jurisdiction to review, alter or amend orders relating to them. It was further held that the grounds on which this inherent jurisdiction has to be exercised are similar to those in Order XLVII, rule 1, only the technicalities of Order XLVII will be excluded. This view is held on the following reasoning :‑

"It is true, Order XLVII, rule 1, speaks of a decree or order which is not appealable or against which no appeal has been preferred. so, that, prima facie, the words should cover all orders. But It will at once strike one that it will be very difficult to accept the application of the stringent provisions of Order XLVII, to orders relating to mere procedure. A Court passes an order, directing that a witness who is to be examined on commission should be examined at a particular place. If it be intended to change the place of the examination, will the Court be powerless to do so unless the conditions as well a; the procedure provided in Order XLVII is complied with Will the Court first consider v nether an application for review is to be admitted and if It is of the opinion that it should be admitted, then the application shall be registered in accordance with Order XLVII, rule 8, and then heard on the merits One is inclined to assume with respect to procedural matters that there exists in the Court inherent jurisdiction to review, alter or amend orders relating to them."

The above observations are very weighty and we are in respectful agreement with them.

9. Moreover, the question whether a party should or should not be impleaded in a suit is governed by Order I, rule 10. C. P. Code, the relevant provision of which is reproduced below :‑

"R. 10 (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."

It is thus open to a Court, at any stage of the proceedings, to strike out the name of any party improperly joined, whether plaintiff or defendant, or to implead 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 to effectually and completely adjudicate all questions involved in the suit. Mr. Bashir Ahmad urged that this provision of law is not applicable to those cases where a party has been impleaded by an order of the Court, but he was unable to refer us to any decided case on this point. We are of opinion that no such restriction can he spelled from the above provision of law. In Razia Begum v. Iqbal Begum and others (P L D 1957 Lah. 1040) Changez, J., as he then was, who was dealing with a revision arising out of an administration sprit, observed that the only condition which is laid down for striking out the name of a party from a suit is that such a party is improperly joined in the suit. In this connection he observed as under:‑--

"The Court is vested with the jurisdiction of striking off the name of a party only on the condition that such a party is improperly joined in the suit. The impropriety referred to in sub‑rule (2) of rule 10 of Order I, Civil P. C. means that the party has no interest in the suit and has no connection whatever with the reliefs claimed in the suit."

In another case, reported as Raja and others v. Hussain and others (P L D 1957 Lah. 52) in which a second appeal was filed in a pre‑emption suit, the question for consideration was whether the right of a plaintiff pre‑emptor is lost in a suit to enforce his right if he joins with him a stranger. In that connection, the same learned Judge observed that the mistake in joining a stranger as a co‑plaintiff is procedural and is remediable by amendment under Order I, rule 10, C. P. Code even at the appellate stage. It seems to us that the language of rule 10 (2) of Order 1, C. P. Code is very wide and gives ample power to a Civil Court to strike out, at any stage of the suit, the name of any party improperly joined. There being a specific provision of law for this purpose, we are of the view that Order XLVII, rule 2 of the Code will have no application in such cases and cannot be taken as a bar for striking out the name of a party which has t; been found to be improperly joined as a party to the suit by a predecessor Court. The question of impleading a party or not Is a matter of procedure, pure and simple, and it can be reviewed both and section 151: of the Code in exercise of the inherent jurisdiction vested in a civil Court and under the provisions of Order I, rule 10 (2) of the Code. We would, therefore, repel the contention of the learned counsel in this behalf.

10. The next question which calls for consideration in this case is whether the appellant's name was rightly struck off by the learned Single Judge from the array of defendants in the suit. In other words, the question is whether the appellant was improperly joined as a party to the suit by learned Civil Judge, Haripur, by order dated the 6th of June 1963. The answer to this question depends on consideration of the fact whether it is possible to hold in this matter that the appellant is a proper party to the suit. This, in its turn, would further depend on the scope and nature of the suit pending before the learned Single Judge. Admittedly, the suit is a simple pre‑emption suit. The case of respondent No. 1 is that he is a co‑sharer in the land in dispute and, therefore, he has a preferential right to pre‑empt the sale of the land in dispute. Mr. Wali Muhammad, learned counsel for respondent No. 1, hag brought it to our notice that besides purchasing the share of the appellant in the year 1952, respondent No. 1 has a further share in the land in dispute in his own right which has not at all been derived from the appellant. It is therefore, quite clear that even if respondent No. I fails to establish the validity of the purchase made by his wife in 1952 from Jamilur Rahman appellant, he can successfully assert his claim for preferential right if he establishes himself as a co‑sharer in some other manner.

11. Sheikh Bashir Ahmad, learned counsel for respondent Nor. 2, contended that his client has improved his status by acquiring one Maria of land in the Khata in dispute as also a share in the Shamilat land from appellant Jamilur Rahman during the pendency of the suit by virtue of the deed of exchange, as mentioned above, and, therefore, in order to determine whether the exchange is valid one or not, the presence of Jamilur Rahman appellant for the effective adjudication of the dispute is necessary. The contention of tae learned counsel has received our anxious consideration. In support of his contention, the learned counsel has relied on B. Brij Nurain v. B. H. K. Dhoan (A I R 1942 Oudh 366), Doraiswanu Goundan v. Subramaniu Mudaliar (A I R 1950 Mad. 659), Hari Ram v. The Central Government through the Secretary, Commerce Department, Delhi (I L R 21; Lah. 745), Haji Abdul Wahab v. Karachi Municipal Corporation (P L D 1956 Kar. 391), Muhammad Ishuq v. Mst. Jamila Begum (P L D 1955 Lah. 644), Razia Bagum v. Sahibzadi Anwar Begum (A I R 1958 And. Prad. 195) Motiram Motharam Patel v. Lalchand Gulabchand Marwadi (A I R 1937 Nag. 121) and Anjaneya Sastri v. Kothandapani Chettior and others (A I R 1936 Mad. 449). The principle of law enunciated in these decisions is that a proper party is one whose presence is not essential for the constitution of the suit, appeal or proceedings, but whom it may nevertheless be desirable, or even necessary, to have before the Court in order to properly, or completely and adequately adjudicate on the matter involved.

12. After hearing the learned counsel for the parties we are satisfied that the view of the learned Single Judge that the presence of the appellant is nut desirable or necessary to have him before the Court in order to property, or completely and adequately, adjudicate on the matter involved is based on sound judicial considerations. It will be noticed that appellant Jamilur Rahman is alleged to have sold his right of equity of redemption to the extent of 14/80 of his share in the land in dispute to Razia Begum wife of respondent No. 1. Mst. Razia Begum, later on, gifted it to respondent No. 1, her husband. Appellant Jamilur Rahman, however, never made any attempt to get the above sale set aside on the ground of his alleged minority. Thus, in these circumstances, by Impleading the appellant as a defendant, the suit will not only be converted into one of title between him and respondent No. 1 but will also raise complicated questions of law and fact. Admittedly, in :he sale alleged to have taken place in 1952, the appellant represented himself to be a major and even if it is found that he was a minor, the question whether he is estopped to challenge it in a collateral proceedings, after a lapse of considerable time, under the statute of limitation or under section 115 of the Evidence Act, or without restoring the benefits received by him, cannot be lightly treated. In fact, for the decision of these questions the presence in the suit of Mst. Razia Begum would also be necessary as in her absence no effective adjudication of the disputed points would be possible. Obviously, such important questions can effectively be adjudicated upon in separate appropriate proceedings and not in this suit which is one simply for pre‑emption. The paramount consideration in impleading proper parties is to IC avoid multiplicity of suits. There is no doubt that this object cannot be achieved by impleading the appellant in the suit under appeal. Whatever may be the result, either party shall have to resort to further litigation. Moreover, addition of the appellant as a defendant will result in altering the nature of the suit which, certainly, is not the object of the provisions of Order I, rule 10, of the Code.

13. In our opinion, except that the appellant claims to have transferred his 14/80th share in the land in suit relating to the equity of redemption, he has no interest in the subject‑matter of the suit. His only object in getting himself impleaded as a party to the suit is to defeat the allegation of respondent No. 1 that he is a co‑sharer in the land in dispute through him. This, as already stated, is not the vital and important point in the case. Respondent No. 1 alleges himself to be a co‑sharer in the property in dispute even otherwise. The question whether the exchange in favour of respondent No. 2 is valid or not has arisen only during the pendency of the suit. In our opinion, this question also can be effectively adjudicated upon between the parties to the suit without impleading the appellant as a party to it. We entirely agree with the learned Single Judge that if the plaintiff were to succeed, he can obtain full and effective relief for possession of the land in suit against the vendee even in the absence of the appellant. We are, therefore, satisfied that the presence of the appellant in the suit, instead of facilitating the decision of the pre‑emption suit, will create innumerable complications. In fact, it would render the suit vexatious, with added harassment to respondent No. 1. We cannot disregard the principle of law that a plaintiff has the dominus litis and, as far as possible, no person should be joined as a party to the suit against his wishes. There is not the slightest doubt in our mind that for the questions involved in the pre‑emption suit the appellant's presence is not necessary, and an effective relief can well be granted in the suit without impleading him as a party. It is, however, open to the appellant to challenge the alienation made by him in favour of Mst. Razia Begum, wife of respondent No. 1, by a separate suit.

14. On the view of the matter as we have taken above, we find no force in this appeal which is dismissed with costs.

A. E./S.A.H. Appeal dismissed.

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