ORDER SHEET
IN THE HIGH COURT OF SINDH KARACHI
Civil Revision Application No. 262 of 2010
Mst. Farasa Aijaz______________________________Applicant
Versus
M/s. Qamaran Construction
(Pvt) Ltd and Another______________________Respondents
Date of hearing 19.4.2012.
Mr. Waseem Akhtar, Advocate for the applicant.
Mr. Dildar M.S.Shaikh, Advocate for the
respondent No.1.
Mr. Muhammad Khalid Akhtar, Advocate for
the respondent No. 2.
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MUHAMMAD ALI MAZHAR, J.:- This Revision Application has been preferred against the order dated 05.10.2010, passed by Ist learned Additional Sessions Judge, Karachi, East in Civil Appeal No.224 of 2009.
2. Concisely, the facts of the case are that the applicant claims to be the owner of Apartment No. 502, City View, Saddar, Karachi. Respondent No. 2 filed a Suit No. 572 of 2001 (New No. 1535/2002) in this Court, which was subsequently transferred due to enhancement in the pecuniary limits of the civil court jurisdiction. The suit was decreed on 30.9.2009 in favour of respondent No. 2. The defendant M/S Qamran Construction (Pvt) Ltd. filed appeal against the said judgment and decree, which is pending, meanwhile the applicant came to know about judgment and decree passed in aforesaid suit and moved an application in the Appellate Court under Order 1 Rule 10 CPC for becoming party. The same applicant also filed an application under Section 12 (2) CPC in the Trial Court, which is also pending and at page 59 of this Revision Application the order passed by learned VII Senior Civil Judge is available which shows that R&P was sent to the Appellate Court therefore the application under Section 12 (2) CPC was ordered to be fixed after returning back the R&P from the Appellate Court. The main reason for not impleading the applicant in the Civil Appeal was that the applicant failed to file any documentary proof regarding ownership of said flat and it is further observed in the impugned order that the applicant also failed to file application under Section 12 (2) CPC. So far as the institution of an application under Section 12 (2) CPC is concerned, it is clear that the applicant has already filed application under Section 12 (2) CPC in the Trial Court. However, this court raised a query whether any document was filed alongwith application under Order 1 Rule 10 CPC in the Appellate Court to show the ownership or title of intervener, the learned counsel submits that document was filed but same was not considered by the learned Appellate Court.
3. On the other hand, the learned counsel for the respondent No. 2 argued that no such document was ever filed in the Appellate Court. He further argued that suit in the trial court remained pending for a long time and in spite of having knowledge, the applicant never approached and failed to file application in the trial court for becoming party and after lapse of considerable period of time, application was moved in the appellate court without any proof of ownership which was rightly dismissed. The learned counsel for the respondent No. 1, who filed appeal against the judgment and decree of the trial court, endorsed his no objection if the applicant is impleaded as proper and necessary party in the appeal.
4. In support of his arguments, learned counsel for the applicant relied upon case of Khalid Mahmood vs. Asghar Ali Bhatti, reported in 2005 CLC 1821, in which, it was held that court had ample powers to implead a party whose presence is necessary to effectually and completely adjudicate upon all the questions involved in the suit. In the same judgment the learned division bench also discussed the powers of Appellate Court provided under Order XLI Rule 33 CPC and held that appeal is continuation of suit and Appellate Court in exercise of its powers can pass any order which ought to have been passed as the case might have required. Once the Appellate Court had come to the conclusion that a person was a necessary party then the Judge ought to pass order directing such person to join as a party. He further relied upon case of Hazrat Khan vs. Amanullah Khan & others, reported in NLR 1995 Civil 402, in which, the hon’ble Supreme Court held that the person who is found to be a necessary party would be entitled to be joined as party to suit at appellate stage of the suit. His joinder as party at appellate stage would ensure for purpose of trial of suit because appeal is continuation of suit.
5. On the other hand, the learned counsel for respondent No. 2 relied upon the case of Miss Shazia Ashraf vs. Municipal Committee, Sahiwal & Another (2006 CLC 1018), Mst. Marium & Others vs. Haji Ali & Others (PLD 1985 Karachi 705) and Abdullah & others vs. Muhammad Haroon & others (2010 CLC 14). All aforesaid judgments are distinguishable and not attracted to the facts and circumstances of the case in hand. The case of Miss Shazia (supra) pertains to Section 12 (2) C.P.C, in which it was held that limitation for setting aside the order obtained through fraud and misrepresentation would start from the day of knowledge and three years limitation is provided for setting aside the judgment under Section 12 (2) CPC. In case of Mst. Marium (supra), the learned single judge held that declaratory decree would not be binding against the strangers to the suit. In the third case also, the learned single judge only discussed Order XLI Rule 30 & 31 CPC and held that though the Appellate Court not formulated the points in controversy for determination but addressed such points and recorded findings.
6. At this juncture, I would like to avow that only those persons are necessary and proper party to the proceedings, whose interest are under challenge in the suit and without their presence matter could not be decided on merits. The necessary party is one who ought to have been joined and in whose absence no effective decision can take place. The object of order 1 rule 10 CPC is to avoid multiplicity of proceedings and litigation and to ensure that all proper parties are before court for proper adjudication on merits. Once the court comes to the conclusion that a person applies for becoming a party is a necessary part then the court ought to pass an order directing such person to be impleaded as party in the proceedings. It is well settled proposition of law that court is empowered under this provision to add any person as plaintiff or defendant in the suit at any stage and even in appeals. Joining of party at any stage is binding in all subsequent proceedings until set-aside in legal manner. Order 1 rule 10 CPC read with section 107 CPC is applicable to appeals and the appellate court has discretion to substitute or add any person as appellant or respondent provided they are proper and necessary party to the proceedings.
7. In the case of Hazrat Khan supra the hon’ble Supreme Court has held that person who is found to be necessary party would be entitled to be joined as party to suit at appellate stage of suit. His joinder as party at appellate stage would ensure for the purpose of trial of suit because appeal is continuation of suit.
8. The powers conferred upon the court under order 1 rule 10 CPC can be exercised by the court at any time and any stage of proceedings, if the presence of party is necessary to effectually and completely adjudicate upon and settle the questions involved. Mere delay in making application is not sufficient to dismiss the application without examining the gist of right or claim compelled a party to move application for becoming a party to safeguard his right and interest. The learned appellate court while dismissing the application stated in the order that the applicant failed to file any prove of purchase of the property in question from the defendant No.1 and the another reason was that the application has been filed at belated stage when the judgment has already been passed, therefore, the applicant is neither a necessary party nor a proper party.
9. I have gone through the judgment passed by the trial court in Suit No.1535 of 2002 on 30.09.2009, which shows that the witness of Qamran Construction Company Private Ltd. appeared and he submitted a copy of allotment letter of the flat in question, which was issued by the aforesaid construction company in the name of applicant and even during the course of arguments also it was repeatedly argued that the flat in question is in the name of applicant. Though the applicant failed to apply to trial court for becoming a party in the suit, but at the same time it is also a fact that the witness of construction company brought in the knowledge of trial court that the flat in question is in the name of applicant and in order to resolve this controversy, the learned trial court in exercise of powers conferred upon it under the provision of Order 1 Rule 10 CPC ought to issue notice to the applicant to avoid multiplicity of proceedings and when the applicant moved the application in the appellate court to safeguard her interest, the appellate court dismissed the application merely on the ground that the judgment has already been passed and the applicant is not proper and necessary party, which approach of the appellate court is not in consonance with the provision of Order 1 Rule 10 C.P.C, which provides that the court may at any stage of proceedings either upon or without the application of either party join any person as plaintiff or defendant, whose presence before the court may be necessary in order to enable it effectually and completely to adjudicate upon all questions involved in the suit.
10. In order to satisfy this court, the learned counsel for the applicant filed copy of letter dated 25.11.1997, issued by respondent No.1, confirming the allotment of apartment No. 502, City View along with eight paid receipts issued by Qamran Construction (Pvt.) Ltd in favour of the applicant. Since the applicant claims to be proper and necessary party on the basis of above documents, it would be in the interest of justice that a chance be afforded to the applicant to submit aforesaid documents before the Appellate Court to decide the application under Order 1 Rule 10 CPC afresh after considering the entire material produced by the applicant and the objection raised by respondent Mst.Meer Khatoon.
11. As a result of above discussion, the impugned order dated 05.10.2010, passed by learned Appellate Court in Civil Appeal No. 224 of 2009 is set aside with the directions to decide the application filed by the applicant under Order 1 Rule 10 CPC afresh and pass speaking order. The learned Appellate Court shall decide this application within fifteen days. This Revision Application stands disposed of in the above terms.
Judge