Find a Lawyer

Civil Revision No.40 of 1987, decided on 4th May, 1987.

---O.I, R.10--Joinder of proper or necessary party--Petitioners/ interveners not falling within category of a necessary party but emerging as a proper party in suit--Petitioner ordered to be impleaded as proper party.

Razia Hasni v . Kishver Sultana N L R 1980 U C 47, Hakim Ali and others v. Imam Ali Qadri 1982 C L C 946, Munawar Sultana v. Ahsanullah Khan P L D 1966 Kar. 359 and Hakim Ali v. Settlement Commissioner 1981 C L C 1539 ref.

Pakistan v. Abdul Wali Khan P L D 1975 S C 463 rel.

---O.I, R.10--Proper party--Meaning--Proper party is a party whose presence before Court is necessary to enable Court to effectually and completely adjudicate upon and settle all questions involved in proceedings--Terms 'questions involved' included all matters material to a proper decision of case but object of making such persons parties was to prevent multiplicity of proceedings. Such party, however, must be a person whose interest is likely to be affected even though no relief was claimed against him.

Jhamat Jethanand for Petitioners.

Hassan Muhammad Baig and Rafiq Ahmed for Respondents.

Date of hearing: 4th May, 1987.

This Revision Application under section 115, CPC is filed to challenge the order of IIIrd Senior Civil Judge, Hyderabad, dated 10-4-1986, whereby the learned Judge rejected the application of applicants /interveners under Order I Rule 10, CPC to implead them as a party in Suit No.222/1980 instituted by respondent No.1 against respondents 2 to 4. On 27-4-198,' when the miscellaneous application in the above case came up for hearing I found that the contentions raised in support of stay application are almost identical to those which are raised in the main petition and accordingly I fixed the main case for hearing today alongwith the stay application. I have heard the learned counsel for the parties at length.

Mr. Jhamat Jethanand the learned counsel for the applicants contended before me that the order of trial Judge refusing to implead the applicants /interveners in Suit No.222/1980 as a party amounted to failure of exercise of jurisdiction vested in the Court by law. It is urged that from the facts and circumstances placed by the applicants /interveners before the trial Court it was sufficiently established that they were necessary party to the suit or in any case they were a proper party as without their presence the controversy in the suit could not be resolved finally and effectively. The learned counsel for the respondents on the other hand jointly contended that the controversy sought to be raised in the suit by the interveners was outside the scope of the suit and if they were joined as party in the suit it would have become necessary for the trial Court to give a finding on the contest between respondent No.1 and the interveners which is not the object of Order I Rule 10 CPC. After hearing the learned counsel for the parties I am of the view that the applicants are entitled to be joined as defendants in the suit as they come within the category of a proper party. Respondent No.1 in his suit has sought a declaration of title in respect of three different lots of properties situated in Deh Faujgah as descendants of three different persons. The details of properties and the names of the ancestors from whom respondent No.1 claimed title to these lands are mentioned in para 5 of the plaint. One of these lots of the properties situated in Deh Fojgah which respondent No.1 claimed through Mitho Manhwar is also claimed by the applicants /interveners as descendants of Mitho s/o Thainrio Panhwar. The contention of the learned counsel for the respondents jointly is that as the applicants/ interveners are claiming the same property as descendants of another person they should file a separate suit to establish their title. It is true that the applicants /interveners are entitled to institute a separate suit in law to establish title to the above land on the basis of inheritance but if such a suit is filed by them and they do not implead respondent No.1 as defendant in that suit who is also claiming the same property and both the suits are allowed to proceed by the Court separately, the possibility of conflicting decrees by the Court in respect of same subject-matter cannot be ruled out. It is precisely to avoid such a situation that a party could be joined as a proper party in a pending suit. The learned counsel for the respondents in support of their contentions that in the circumstances disclosed by applicants /interveners, they could not be allowed to be impleaded as a necessary or a proper party in the pending suit, relied on the cases of Razia Hasni v. Kishver Sultana N L R 1980 U C 47, Hakim Ali and others v. Imam Ali Qadri 1982 C L C 946, Munawar Sultana v . Ahsanullah Khan PLD 1966 Kar.359 and Hakim Ali v . Settlement Commissioner 1981 C L C 1539. In the first cited case the facts were as follows:----

The plaintiff /respondent in that case had allegedly constructed a double storey house on the space which was required to be left open compulsorily under the scheme prepared by the Lahore Improvement Trust. The petitioner in that case made a complaint to the Lahore Improvement Trust in that regard on which a notice was issued to the respondent /plaintiff in that case for demolition of the alleged unauthorised construction. The respondent instituted a civil suit to challenge the notice issued by the Lahore Improvement Trust and only impleaded Lahore Improvement Trust as a party. The petitioner filed an application under Order I, Rule 10, CPC in the case for being impleaded as a party on the ground that the construction raised by the respondent No.1 allegedly infringed his right of privacy and other easement right enjoyed by him. The application was rejected by the trial Court and the order was upheld in revision by the Lahore High Court. It was held in the above case that the controversy in the suit was confined only to the validity of the notice issued by Lahore Improvement Trust to the respondent No.1 in which the petitioner /intervener could not possibly claim any interest. With regard to alleged right of privacy of the petitioner in that case it was held that for enforcement of that right he could file a separate suit. The facts of that case are quite distinguishable and have no application to the facts of the present case where both plaintiff /respondent No.1 and the interveners/ applicants are laying claim to the same property though through different ancestors. In the second cited case of Hakim Ali and others v. Imam Ali Qadri 1982 C L C 946 the intervener Hamdard Trust sought joinder as party in the pending suit on the ground that the land which was the subject-matter of the dispute in the suit already stood allotted to them by a registered document. It was found by the learned Judge while declining to implead the trust as party in the pending suit that the agreement relied upon by the Trust did not mention the survey numbers which were subject-matter of dispute in the suit. It was also found by the learned Judge in that case that although the Intervener claimed that the property has been acquired by the Central Government under a notification but no such notification was produced before the Court to establish the identity of the acquired property. It is quite clear from the facts of that case that there was serious dispute with regard to identity of the property claimed by the intervener and it was in these circumstances that the learned Judge declined to implead the Trust as a party in the suit. Similarly in the case of Hakim Ali and others v. Addl. Settlement Commissioner 1981 C L C 1539 which was a constitution petition, the intervener's application to become party in the proceedings was declined by the Court on the ground that intervener had no rival claim to the allotment in favour of the petitioner which was cancelled by the impugned order of settlement authorities and which was under challenge in the petition. In none of the above cases relied by respondents the person who sought joinder in the pending proceedings as a party could satisfy the Court that he had a claim to the property which was the subject-matter of proceedings in those cases. In what circumstances a person seeking his joinder in a pending proceedings could be considered a 'necessary' or a "proper party" to the case has been dealt with at length in the case of Pakistan v. Abdul Wali Khan P L D 1975 S C 463. At pages 467 and 468 of the report of above case the learned Judges of the Supreme Court while laying down the principles which will apply while considering joinder of a proper party in a pending action observed as follows:----

"Now a proper party is a party whose presence before the Court is necessary to enable the Court to effectually and completely adjudicate upon and settle all questions involved in the proceedings. The terms "questions involved" include all matters material to a proper decision of the case but the object of making such persons parties is to prevent multiplicity of proceedings. The person must, therefore, be a person whose interest is likely to be affected even though no relief is claimed against him. This does not, therefore, extend to person who have no interest which is likely to be Affected by the proceedings nor does it embrace persons only generally interested in common with others nor can persons be added as parties so as to set up a new cause 'of action which does not concern the original parties.

In a generic sense, every decision of this Court on a point of law is likely to affect every one in this country in whose case a similar point of law arises, but this does not give every person in this country a right to intervene in every proceeding before this Court, merely because it is likely to affect him in some future proceedings."

Applying the principles laid down by the Supreme Court in the above case for joinder of "necessary" and "Proper" party in a pending case I am satisfied that the applicants /interveners though do not fall within the category of a "necessary party" but they are certainly a proper party in Suit No.222/1980 instituted by Respondent No.1 against Respondents Nos.2 to 4. I accordingly accept this Revision application set aside the order of lower Court and direct respondent No.1 to implead petitioners as defendants in the suit. The parties are directed to appear before the trial Court on 25-5-1987 on which date respondent No.1 will file the amended plaint and, therefore, the suit shall proceed further in accordance with the law. There will be no order as to costs. As a result of decision of main petitioner the stay application is dismissed as infructuous.

M . Y . H . /J-28/ K Petition accepted.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.