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Civil Revision No. 210 of 1982, decided on 21st September, 1983.
--O. I, r. 10 Parties, impleading of Petitioners' application to be impleaded as party in a suit rejected by trial Court on ground that suit is not in respect of intervenor's land Applicant interve nor bringing in his affidavit filed in support of application material facts, not denied by plaintiff Trial Court, held, failed to note that there was sufficient material in affidavit which made their presence in Court proper and necessary to completely and effectually adjudi cate upon all questions involved in suit Absence of intervenor, held further, would result in multiplicity of suits which has to he avoided.
---O. I, r. 10 Requirements of provision Held person sought to be joined need not be interested in all reliefs sought in suit or in question in issue between parties already on record.
Asar Hussain for Applicant.
S. S. Hamid (present) and Abu Aseem (absent) for Respondents Nos. I to 4.
Sabir Kizalbash for Respondent No. 5.
Date of hearing : 10th August, 1983.
This revision application is directed against the order, dated 18th March, 1982 passed by the learned Senior Civil Judge at Karachi, in Suit No. 864/80 whereby the application of the present applicants/the Intervenors, made under Order I, rule 10, C. P. C. was rejected.
2. The relevant facts for purposes of disposal of the petition may briefly be stated. An application was filed under Order XXXIX, rules 1 and 2, C. P. C. in the Court of Senior Civil Judge, Karachi by the plaintiff i. e. the respondents Nos. I to 4, in the above suit praying for grant of injunction on the plea that they are in possession of Plot No. ST-4 A. V. C. ; Nazimabad, Karachi measuring about 1U86.33 square yards it was also stated in the plaint that the above-mentioned plot is lying between two amenity Plots Nos. ST-3 and ST-4, and that the same does not form part of any of the regular plots which are there. It was further pleaded that the land in question being extra land was not required by the K. D. A. or K. M. C. no objection was raised by the K. D. A. when the plaintiff raised construction over it but later after several years K. D.A. started harassing the plaintiff and served them with notice, dated 10th April, 1978 calling upon them to remove the construction within a week which notice according to the plaintiffs is illegal ultra vires and in excess of jurisdiction. Inter alia, it was also pleaded that the Minister Housing and Planning ordered K. D. A. to regularise the same twice, but defendant filed to comply with the same. It was also alleged that the plaintiffs have been paying taxes in respect of the said property.
In the written statement filed by the K. D. A. it was pleaded that the plaintiffs are in unauthorised occupation of K. D. A. land bearing Plot No. ST-4 A. V. C., Nazimabad,
In the above-mentioned suit the Intervenors i.e. the applicants, on 10th September, 1982 moved an application under Order I, rule 10, C.P.C. read with section 151, C. P. C praying therein for allowing them to be joined as defendants on the plea that they are necessary and proper parties.
In the affidavit filed in support of the application it was stated that the intervenors are the owners of the property in suit and that the plaintiff had entered upon the property as building contractor with the permission of the intervenors for a temporary period as licencees till the time they may make arrangements for stores and Chowkidar. Accordingly to the Intervenors the plaintiffs later on started using the space for residence illegally and unauthorisedly. It was further stated that the intervenors had earlier filed Civil Suit No. 1044 of 1975 in the Court of IX Senior Civil Judge, Karachi for possession and mesne profits against the plaintiff but later, on apology tendered to them the suit was compromised and a compromise decree was passed on 2nd August, 1975. According to the intervenors the plaintiffs failed to comply with the terms of compromise and adopted foul means to continue illegal occupation of the intervenor's land and for this purpose filed Civil suit No. 2236 of 1975 against the K. M. C. who were going to demolish the unauthorised structure raised by the plaintiffs on the land of the intervenors. It was further stated in the affidavit that the plaintiffs having failed in achieving their foul object, filed another Civil Suit (Suit No. 1075 of 1978) against defendants (K. D. A.), which was also withdrawn by the plaintiff on 2nd March, 1983 and thereafter by way of abuse of process of law, the present Suit No. 864 of 1980 was filed (out of which this revision application has arisen) in order to prolong illegal possession on the intervenor's land.
In the counter-affidavit filed in opposition to the application made under Order I, rule 10, C. P. C. it was contended that the land in the suit is Plot No. ST-4-A whereas the intervenors Plot bears No. ST-3. It was also alleged that the land in the suit was not the subject-matter of Suit No. 1044 of 1975. It was further stated that Suit No. 2236/75 was filed against the K. M. C. but it was withdrawn as the Architect Department of K. M. C. was merged in K. D. A. and the other Suit No. 1075/80 was withdrawn for want of legal notice with permission to file fresh suit pursuant to which the present suit was filed.
The learned trial Court by the impugned order passed, on 18th Mareh, 1982 rejected the application made by the intervenors under Order I, rule 10, C. P. C. on the short ground that the intervenors have stated that they are owners of Plot No. ST-3 Sub-Block C of Block B Nazimabad, whereas the suit is for the extra land between ST-3 and ST-4, that the learned Advocate for intervenors contended that there is no extra land. Thus, it was observed that the suit is not in respect of the land of the intervenors and as such they are not necessary party.
4. After hearing the learned counsel for the parties I find that the learned Trial Court omitted to apply its mind to the relevant considerations for the decision reached while disposing of the application made by the intervenors under Order 1, rule 10, C. P. C. It would be noticed from the allegations made in the affidavit filed in support of the above-mentioned application that according to the intervenors they are the owners of the land in suit and that they allowed the plaintiffs to use the said land as licensees for a temporary period and that they filed Suit No. 1044 of 1975 in the IX Civil Court at Karachi for possession and mesne profits but later on the plaintiffs tendered apology to the intervenors and the said Suit was compromised and decreed in favour of the intervenors but thereafter the plaintiffs adopted foul means to prolong their illegal possession. Though in the counter-affidavit, the plaintiffs denied the claim of the intervenors on the plot now claimed by them (the plaintiffs) but significant fact to note is that the statement made in para. 2 of the affidavit (filed in support of application under Order I, rule 10, C. P. C.) by the intervenors that the plaintiff had entered upon the property as building contractor with the permission of the intervenors for temporary period as licensee was not expressly denied in the counter-affidavit filed by the plaintiffs. Further, though the allegations and counter allegations made are yet to be decided at the trial, I find that sufficient material has been disclosed in their affidavit by the interve nors, which makes their presence in Court proper and necessary to completely and effectually adjudicate upon all the questions involved in the suit. A person who claims adversely to the vendor and vendee can be impleaded as a party in a suit for specific performance when circum-' stances of a case so requires. (P L D 1955 Lah. 644). In view of the facts stated in their affidavit by the intervenors, the questions whether the plaintiffs were allowed to use temporarily the plot in suit by the intervenors, the effect and interpretation of consent decree, and identity of plot in suit obviously cannot be effectually decided in the absence of the intervenors. The absence of the intervenors would result is multipli city of proceedings which has to be avoided by resorting to Order 1, rule 10, C. P. C. (reference be made to the case of Mst. Shirin Bai v. Ku/sown Bai (P L D 1980 Kar. 296). It is well-settled law that person who is sought to be joined need not be interested in all the reliefs sought in the suit or in the questions in issue between the parties already on record.
5. In the light of the above discussion, being of the opinion that the presence of the intervenors is proper and necessary in the Court to effectually and completely decide all the questions involved in the suit and to avoid multiplicity of proceedings, the order of the learned trial Court passed on 18th March, 1982 is set aside, and the application Order I, rule 10, C. P. C. filed by the Intervenors is allowed. The intervenors above-named are thus directed to be joined as defendants in Suit No. 864 of 1980 pending in the Court of IV Senior Civil Judge Karachi.
The Advocates for the parties are further directed to appear before the learned trial Court on 20th October 1983 and after filing of the amended plaint, the case shall proceed according to the law.
Before concluding I would like to clarify that observations (if any) made on merits of the case while disposing of this petition are tentative in nature and shall not affect the disposal of the suit on merits on the material which may be produced at the trial.
M. B. A. Petition accepted.
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