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Suit No. 355 of 1951, decided in January 1952.

, O. 1, rule 10 (2)‑. 'Proper‑' as distinguished from 'necessary' party to suit' Ques tions involved in skit'‑Whether questions between parties to suit only.

A person is a 'proper' party if his presence before the Court is necessary to enable it to effectually and completely adjudicate upon and settle all the questions involved in the suit. In other words 'proper' party means the party who may be interested in the result of the suit. The Court can bring a party on the record of a suit, if it finds that the party will be prejudiced by his not being joined as a party to the suit.

The word "or whose presence before the Court may be necessary in order to enable the Court effectually and com pletely to adjudicate upon and settle all the questions involved in the suit" occurring in Order I, rule 10 (2) Civil P. C., are not confined to decisions on questions which arise between the parties to the suit, but include the final adjudication on ques tion as between not only parties to the suit but also third parties interested in the dispute.

In the present case, the plaintiff filed a suit against Karachi Municipal Corporation praying for a declaration by the Court that certain building belonging to him was beyond repair, and that the order of the Municipal Commissioner compelling him to carry out repairs to the building was unwarranted and illegal. The plaintiff prayed for an injunction restraining the Karachi Municipal Corporation from authorizing the tenants to carry out repairs to the building at his own cost. The tenants formed themselves into an association and under Order I, rule 10 (2) Civil P. C. applied to the Court to have two of its members joined as defendants representing them selves and the association under Order I, rule 8, Civil P. C. This application was resisted by the plaintiff on the ground that the words "or whose presence before the Court may be necessary in order to enable the Court effectually and com pletely to adjudicate upon and settle all the questions involved in the suit", must be read relatively and in relation to the parties to the suit.

Held, the tenants were interested parties in the dispute inasmuch as they had a right to carry out repairs and reim burse themselves from the rents and this right was threatened by the suit on grounds identical with those on which the main relief of declaration was sought. If the declaration were granted, the very premises in the occupation of the tenants would be demolished. Moreover if a separate suit were to be brought, common questions of law and fact would arise. Hence the applicants (tenants) were proper parties.

Sri Mahant Prayaga Das Jee Varu v. The Board of Com missioners for Hindu Religious Endowments A I R 1926 Mad. 836 and Devandra Kumar and others v. Mst. Batasibai and others A I R 1934 Nag. 228 not followed.

h. R. S. S. Chindambaram Chettiar v. P. L. N. K. Subra manian Chettiar 53 Mad. L J 269, hydianadayyan v. Sitaram ayyan I L R 5 Mad. 52, Secretary of State and another v. M. Murugesa Mudliar and others A I R 1939 Mad. 443 and Dwarkanath Sen v. Kesory Lai Goswami 14 C W N 703 approved.

Montgomery v. Foy Margon & Co. (1895) 2 Q B 321, Esquimalt and Nanaim Rly. Co. v. Wilson (1920) A C 358 and United Provinces v. Mst. Atiqa Begum and others A I R 1941 F C 16 referred to.

Jamiatrai Lalchand for Plaintiff.

Mahmood Husain for Defendant.

A. K. Lakhani for Applicants.

‑---The plaintiff has filed this suit against the Corporation for a declaration that the whole of the premises belonging to him, bearing Survey No. 1, Sheet 2, Serai Quarter, Karachi, are dilapidated, dangerous, and not such as can be repaired with any advantage: and that the orders of the Muni cipal Commissioner, requiring repairs to be carried out to the building and the sanitary fitting are unreasonable, unjust and oppressive and not warranted by law, and for an injunction restraining the Corporation from authorizing the tenants from carrying out repairs to the building at plaintiff's cost.

The tenants of the building formed themselves into an association, and then made an application under Order 1, rule 10, sub‑rule (2) to have the association brought on the record as a defendant, but this application was dropped and an other made in its place, dated 27th September 1951, to have the two persons therein mentioned brought upon the record as defen dants for themselves and as representing the other tenants of the building. Another application was made the same day under Order I, rule 8. These applications are before me now.

The position now is that the Corporation, acting under sections 190 and 235 of the Municipal Act, has authorised the tenants to carry out the repairs to the sanitary requirements in the building by a letter dated 19th April 1.951, which is Annexure G to the plaint. It has also decided to permit the tenants to carry out repairs to the northern and eastern blocks of the building (the western block being beyond repair) but has not ,been able to communicate that decision to the tenants by reason of the interim injunction which has been granted.

The application for joinder has been resisted by the plaintiff. The defendant has advanced no submission .or argu ment against it.

The matter falls under Order I, rule 10, sub‑rule (2), the question being whether the applicants are proper as distingu ished from necessary parties to the suit. The argument for the plaintiff has been that the words: "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," must be read relatively and in relation to the parties to the suit, reliance being placed upon the case in 50 Madras 34. It has also been contended that the decision of a Division Bench of this Court in Revision Application No. 20 of 1947 is the same, and that I am bound thereby.

Two considerations which arose in the matter before the Division Bench do not exist in the present case, and they are sufficient to distinguish it from the case before that Bench. There the case was such as to make the effect of the joinder of the Government by the Court suo‑ motu, a case almost of misjoinder of causes of action, as appears at lines 194‑196 of the Order. Again the effect of the joinder there was to destroy the very jurisdiction of the Court to hear the suit. On any one of these grounds, a revision Court might well hold that the discretion to join the Government had been improperly exercised without calling to aid the case in 50 Madras 34.

The tenants have the right to carry out the repairs to the sanitary fittings and have the uncarried out decision of the Corporation in respect of other repairs which involve the valuable right to recoup themselves from the rents. This right A is threatened by the suit on grounds identical with those on which the main relief of declaration is sought. Moreover, if the declaration were to be granted the very premises occupied by the tenants would be demolished. If a separate suit were to be brought, it does appear that common questions of law and fact would arise. I therefore think the plaintiff could have joined the tenants as defendants, having regard to Order I, rule 3, Civil P. C.

The order of the Division Bench refers to some dicta of Srinivasa Ayyangar, J., in Sri Mahant Prayaga Doss Jee haru v. The Board of Commissioners for Hindu Religious Endow ments (I L R (1927) 50 Mad. 34), which confines the words "questions involved in the suit" to questions between the parties, but Jackson, J., in V. R. S. S. Chindambaram Chettiar v. P. L. N. K. Subramanian Chettiar (53 Mad. L J 269), referred to the case in Vydianadayyan v. Sitaram ayyan (I L R 5 Mad. 52), (decided by a Division Bench of that Court) as authority for guarding against so confining the rule. Venkata subba Rao, J., in Secretary of State and another v. M. Murugesa Mudliar and others (A I R 1929 Mad. 443) found the cases in Vydianadayyan v. Sitaramayyan and Dwarkanath Sen v. Kesory Lal Goswami (14 C W N 703), opposed to the narrow view expressed in Sri g Mahant Prayaga Doss Jee Varu v. The Board of Commis sioners for Hindu Religious Endowments and referred to Montgomery v. Foy ((1895) 2 Q B 321) and Esquimalt and Nanaimo Railway Co. v. Wilson ((1920) A C 358) as illustrative of the wide interpretation of the rule in England. The words in Order I, rule 10 (2) "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," appear (save for the word 'suit' for which is substituted cause or matter) in Order XVI, rule 11 of the Rules of the Supreme Court and the Annual Practice (1949) Vol. I at page, 277 refers to no such narrowing down of the rule.

It is true that Vivian Bose, J.. in A I R (1934) Nag. 228 dissented from I L R 5 Mad. 52, on the ground that it had not been followed in I L R 50 Mad. 34 but the learned Judge has not examined the dicta in that case nor referred to A I R (1929), Mad. 443. Indeed the case in A I R (1941), Federal Court, 16, which dealt with a situation not dissimilar to that in I L R 50 Mad. 34, referred to both these Madras cases, but did not adopt the narrow view of the earlier case and instead, Gwyer, C. J., at page 22 relied on the Privy Council case in Esquimalt and Nanaimo Railway Co. v. Wilson where the following oft‑quoted observations of Lord Buckmaster appear

"It is quite true that the title of the Crown to the land in question is not in controversy, nor is the Crown asked to do any act or grant any estate or privilege; but in the event of the plaintiffs' success, the rights existing in the Crown and consequent upon the grant to the respondents will cease. If these interests lay in a third party, he ought certainly to be added as a defendant, and that is the best means of testing the necessity of the attendance of the Crown."

I have followed the same principle in my order made in January 1950 in Suit No. 265 of 1949 and referred to it in my order made in March 1950 in Suit No. 539 of 1949, where I held that the case then before me did not fall within the principle.

In any case, the joinder of the applicants has not been shown to have the effect of widening the case as between the present parties to the suit.

For these reasons, I join the two applicants for themselves and as representing the tenants (other than Manzoor Corpora tion) mentioned in the list filed with the application under Order I, rule 8. Necessary notice will issue under that rule as Registrar (O. S.) may direct.

K. B. A. Order accordingly.

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