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Revision Application No. 471 of 1969, decided on 9th January 1976..

-- O. I, r. 10-Parties to suit-Joinder of party-Court not required to give notice to party proposed to be joined.- [Joinder of parties).

Atma Ram v. Beni Prasad and others A I R 1935 P C 185 distinguished.

- ---- O. I, r. 3-Parties to suit-No right to relief against person, sought to be joined as party, existing on date of suit-Joinder of such party as defendant-Held, hit by O. I, r. 3.-[Joinder of parties].

-- S. 23(2)-Subject-matter of pending suit referred to arbitration- Whether Court cannot deal with such matter as long as reference stands.

Profulla Chandra Karmakar and another v. Panchanan Karmaker and others A I R 1916 Cal. 427 ref.

--S. 115-Revision-Plea not raised before trial Court-Held, cannot be permitted to be raised before High Court.-[Revision (civil)].

G. H. Abbasi for Applicants.

A. G. Mohammadally for Respondents.

Dates of hearing : 2nd, 21st October and-4th November 1975.

This Revision Application calls in question the order dated 5-10-1969 passed by the First Class Civil Judge, Larkana, rejecting the application of the applicants under Order 1, rule 10, C. P. C. for impleading a party as defendant.

2. The case of the applicants is that in 1959, they purchased 1/3 share in a factory known as "National Rice Husking Factory" situated at Shahdadkot from one Hundomal and became partner with Muhammad Ibrahim, who owned the remaining 2/3 share in the factory that in 1960, they purchased his 2/3 share for Rs. 20,000 and thus the applicants became full owners of the factory and carried on their business in it for over four years. That in June 1964, title deeds and some other articles were stolen from the factory and during investigation of this crime by the Police, Muhammad Ibrahim forcibly took possession of the factory from the applicants on 19-11-1964, hence the applicants filed a Suit No. 12/1965 in the Court of the First Class Civil Judge, Larkana for a declaration, possession and mesne profits. Muhammad Ibrahim denied the plaintiff's case as false, as he had been in actual possession and ownership of the factory since several years. He also denied that he has dispossessed the applicants forcibly.

3. At the request of the parties to the suit, the Court referred the dispute in Suit to a sole Arbitrator, who gave his award on 10-5-1967 in favour- of Muhammad Ibrahim. The applicants filed their objections to the award which are still pending and have remained pending to this date, in view of a stay order obtained by the applicants from the High Court in this Revision. During the course of the trial in the Criminal Court with regard to the theft of the title deeds, Muhammad Ibrahim made a statement that one Azizullah Memon son of Dhani Bux was partner with him in the factory since 19-11-1964. Therefore, the applicants moved an application in the Civil Suit under Order I, rule 10, C. P. C. to join Azizullah as a party defendant. The application was resisted by Muhammad Ibrahim as being mala fide and filed with the intention of frustrating the award in his favour. It was dismissed by the learned Civil Judge, Larkana by the impugned order dated 6-10-1969. The applicants have come up in revision against the said order. Present respondents are the legal heirs of Muhammad Ibrahim, who, died during the pendency of this Revision.

4. The contention of Mr. G. H. Abbasi, learned Advocate for the applicants is that the trial Court acted with material irregularity in dismissing the application of the applicants summarily without even issuing notice to Azizullah. In this connection, he cited the observations of the Privy Council in Atma Ram v. Beni Prasad and others (A I R 1935 P C 185) that a Court acts with material irregularity, if it summarily dismisses an application for joinder under Order I, rule 10, C. P. C. without notice to the interested party. The facts of that case are distinguishable. In that case, the application was made by the party seeking his joinder, but the subordinate Judge summarily rejected it without hearing the plaintiff Collector. But in the instant case before me as Mr. Muhammadally, learned Advocate for the respondents has rightly pointed out, that neither Azizullah himself applied for his joinder, nor is there any -rule or procedure which makes it incumbent on the Court to give notice to A ,the party proposed to be joined. I am inclined to agree and find no force in the submission of Mr. G. H. Abbas.

5. The next submission of Mr. G. H. Abbasi is that Azizullah was a proper party, since Muhammad Ibrahim had himself admitted that Azizullah .was a partner in the factory and therefore, he was interested in the subject matter of the Suit. According to him, Azizullah ought to be joined in order to enable the Court effectually and completely to adjudicate upon and settle that question involved in the suit. The learned trial Court examined ..this submission and in my opinion, has rightly rejected it. The question .involved in the suit is whether plaintiffs were forcibly dispossessed by Muhammad Ibrahim, as alleged in the plaint or whether the latter had remained in peaceful possession and full owner of the factory as alleged by him in his written statement. It is not the case of the applicants in the plaint that Azizullah in league with Muhammad Ibrahim had dispossessed them. Nor did they plead that Azizullah claims a right or title in the factory. Therefore, even if Azizullah is joined, the -Court was not competent to give any finding beyond the pleadings of the parties. Mr. G. H. Abbasi submitted that Azizullah's interest in the factory became known to the applicants sometime after the suit was filed, when Muhammad Ibrahim made the statement in the criminal proceedings and that the application to join Azizullah could be moved "at any stage of the proceedings." While no doubt that is correct, but no right to relief against Azizullah existed on the date of the suit which could be said to have arisen out of the same act or transaction. In those circumstances, the joinder of Azizullah as a defendant would be hit by Order I, rule 3, C. P. C.

6. On the other hand, there is nothing on the record to suggest that Aziaullah has any right or interest in the factory under dispute. No document of title. such as sale deed or entry in the revenue record in the name of Azizullah was referred to- Even Azizullah disclaimed any interest In the factory. But Mr. Abbasi referred to the deed of partnership, which shows that Azizullah was taken as partner by Muhammad Ibrahim in the Husking business. That partnership deed shows no interest of Azizullah in the capital including the factory premises and the machinery installed therein except a share in the profit or losses of the Rice Husking business and the partnership was at will. In these circumstances, the trial Court rightly in my opinion, held that Azizullah was neither a proper party nor a necessary party.

7. Mr. Mahomedally supported the impugned order on the ground that the application for joinder itself was not maintainable under section 23(2) of the Arbitration Act, 1940, on the ground that as the subject-matter of the pending suit was referred to arbitration, the Court shall not deal with the C matter in the suit save in the manner and to the extent provided in the Arbitration Act itself. He cited Prafulla Chandra Karmakar and another v. Panchanan Karmakar and others (A I R 1946 Cal. 427) which held that once a dispute goes to :Arbitration, the authority of the Court to proceed with the suit is suspended ,and it cannot, so long as the reference stands, deal with the subject-matter of the reference. However, this plea was not raised by the respondents before the trial Court. I therefore, cannot permit Mr. Mohammadally to raise it before me now. In any case, it is not necessary to decide the point, as I am in agreement with the impugned order rejecting the application for joinder on merits.

8. For the above reasons, I find no force in this revision application, which is dismissed with costs.

S. Q. Application dismissed.

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