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High Court Appeal No. 46 of 1987, decided on 14th May, 1987.

--O.I, R.10--Impleading of necessary parties--Main question in suit being whether properties mentioned in plaint and Schedules annexed to it were properties owned and left by deceased, his widow and daughters, held, were necessary parties to suit for its effective adjudication.

---O.I, R.10--Impleading of parties--Court has power to implead any party at' any stage of suit even without any application if he was either a necessary or a proper party.

---O.I, R.10--Impleading of parties--Respondents praying for impleadment as parties to suit brought by plaintiffs, filing a separate suit in which one of the subject-matters was different--Court impleading them as co-plaintiffs and not as co-defendants--Order of Court modified to extent of transposing them into co-defendants in place of co-plaintiffs.

Khalid M. Ishaque for Appellants.

Muhammad Akram Zuberi and I.H. Zaidi for Respondents.

Date of hearing: 14th May, 1987.

--This is an appeal against an order, dated 18-2-1987 passed by a learned Single Judge impleading respondents 2 to 4 as co-plaintiffs in suit No. 512 of 1986 filed by respondent

2. The brief facts leading to the filing of the above appeal are that one Fazlur Rehman died on 22-2-1971. leaving behind the present appellants and the respondents as legal heirs. Respondent No.1 filed aforesaid suit No. 512/86 alleging therein, that the properties mentioned in the plaint and the schedule were the properties/ assets owned by the late father. He sought declaration, injunction, rendition of accounts and cancellation of documents. While the above suit was pending respondents 2 to 4 filed separate applications under Order 1, Rule 10, C.P.C. for being impleaded as co-plaintiffs. Before the above application was decided respondents 2 to 4 filed suit No. 751/86 in which they have also alleged that the properties which are the subject matter of the first suit were owned by late Fazlur Rehman and they were entitled to the share as the legal heirs except that they had claimed themselves being the partners in the private partnership firm Messrs Afghan Caprets which has now been incorporated as a limited company, and which is defendant No.1 in the first suit. The above application of respondents 2 to 4 under Order 1 Rule 10, C.P.C. was heard by the learned Single Judge, who by his order under appeal allowed the same and ordered impleading of the above respondents as co-plaintiffs. Being aggrieved by the above order the appellants have filed the present appeal.

3. In support of the above appeal Mr. Khalid M. Ishaque learned counsel for the appellants has urged as follows:-

(1) That since respondents 2 to 4 had already filed their suit separately, they could not have been impleaded as co-plaintiffs in Suit No. 512/86 as the provisions of Order II, Rule 2, C .P . C . were attracted thereto.

(2) That since in suit No. 512/86 the claim is of respondent No.1, respondents 2 to 4 had nothing to do with the said suit No.512/86 after having filed their own suit.

4. We have gone through the contents of both the plaints of the two suits and find that the subject-matters of both the suits except that in Suit No. 751 there is a reference to the private partnership in which respondents 2 to 4 have claimed to be the partners, are common. In suit No. 512/86 the main issue is, whether the properties mentioned therein in the plaint and the schedules annexed to it were the properties owned and left behind by Fazlur Rehman. In our view, respondents 2 to 4 being the widow and two daughters were necessary or proper parties to the suit for the effective adjudication upon the above main question. Under sub-rule (2) of Rule 10 of Order 1, C.P. C. , the Court has the power to implead any party at f any stage of the suit even without an application if he is either a necessary or a proper party. Since the respondents 2 to 4 have filed a separate suit, in which one of the subject-matters is different, the learned Single Judge should have impleaded them as co-defendants, and not as co-plaintiffs.

5. We would modify the order of the learned Single Judge to the extent of transposing them into co-defendants in place of co-plaintiffs.

With the above modification the appeal stands disposed of but there will be no order as to costs.

M.Y.H./A-134/ K

Order accordingly.

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