Suit No.636 of 2012
For hearing of CMA No.10508/2012
Mari Gas Company Ltd. …………………Plaintiff
Byco Petroleum Pakistan Ltd.
& another ………..Defendants
Date of hearing 25.02.2013
Mr.Naeem Bukhari, Advocate for the plaintiff.
Mr.Salman Talibuddin, Advocate for defendant No.1
Mr.Khalid Mehmood Siddiqui, Advocate for defendant No.2.
Muhammad Ali Mazhar, J. The proforma defendant Pakistan Petroleum Limited has brought this application under Order 1 Rule 10 CPC for striking off its name from the array of defendants on the ground that neither any relief has been claimed against the defendant No.2 nor the plaintiff is in dispute with the defendant No.2.
2. The brief facts of the case are that the plaintiff has filed this suit for recovery of money and damages. In the plaint Byco Petroleum Pakistan Limited has been impleaded as defendant No.1 while Pakistan Petroleum Limited has been arrayed as proforma defendant No.2. The President of Pakistan granted petroleum concession over Hala to the defendant No.2 for an initial term of five years under petroleum concession agreement and subsequently by virtue of a deed of assignment defendant No.2 assigned 35% working interest to the plaintiff after approval of the concerned authority. The Ministry of Petroleum and Natural Resources allocated condensate produced form extended well testing to the defendant No.1. Initially the defendant No.1 deposited the plaintiff share @ 35% in the plaintiff’s account on monthly basis thereafter, they committed default. It is further contended that from December, 2009 till January, 2011 the outstanding amount due to the plaintiff was Rs.880,383,077/-. The plaintiff repeatedly called upon the defendant No.1 through various correspondences for the payment of outstanding dues but the payment was not made. A meeting was also convened under the Chairmanship of Additional Secretary, Ministry of Petroleum and Natural Resources between the plaintiff, defendant No.1, proforma defendant No.2 and OGDC to resolve the issue of payment by the defendant No.1. After thorough deliberation the payment plan was agreed which was accepted by the plaintiff in respect of the liability. The plaintiff has also mentioned the agreed modality of payment in paragraphs 2.9 of the plaint and further averred that a cheque for Rs.20 million was issued by the defendant No.1 thereafter, they committed default. Despite sending legal notice and various reminders no positive response was received from the defendant No.1 hence, the plaintiff has filed the suit for recovery and damages.
3. The learned counsel for the defendant No.2 argued that it is clear from the averments of the plaint that no relief has been sought against the defendant No.2 and the defendant No.2 is not at issue with the plaintiff on any question of law or fact but the plaintiff has improperly joined it.
4. The learned counsel for the plaintiff argued that the defendant No.2 is necessary and proper party and it has been rightly impleaded. He further argued that the defendant No.2 is the operator of Hala Block No.2 in which the plaintiff has 35% working interest. It was further averred that the defendant No.2 also participated in the meeting held under the aegis of Federal Government. He further argued that the defendant No.2 has never denied the contents of the plaint both on law and facts.
5. Heard the arguments. In order to decide the disputed questions, proper pleadings are essential pre-requisite. Proper pleadings are not only a matter of form but are important so that the parties are put to their respective positions vis-à-vis subject matter of the suit. It is for the reason that much importance has been given to incorporate all necessary particulars in the plaint as envisaged under Order 7 Rule 1 CPC. The facts constituting cause of action have to be pleaded and where the plaint does not disclose the cause of action it is not a plaint in the eye of law. Cause of action is bundle of facts which are alleged by the plaintiff to secure the relief sought by him. The prayer clause is the substance of plaint where no relief is claimed in the plaint, the plaint must be looked into as a whole in order to determine relief that may be granted, if it is decipherable from reading of plaint. The prayer clause cannot be read in isolation, but it will be read with the case set up by the plaintiff.
6. Under Order 1 Rule 10 CPC the court may at any stage of proceedings either upon or without the application of either party and on such terms as may appear to the court to be just, may order that the name of any party improperly joined be struck out. This provision deals with the matter of adding and deleting the plaintiff and defendant and empowers the court with judicial discretion in this regard. Under Order 1 Rule 10 CPC, two classes of persons namely, necessary party and proper party can be joined. When no relief was sought against a person otherwise his presence was not necessary to enable the court to settle the controversy, such person may not be added as defendant. A party should be joined to the suit if its presence is required for complete and conclusive adjudication of the suit. The necessary party is the one whose presence on record is enjoined by law or in whose absence no effective decision can be given. If a dispute can effectively be adjudicated in absence of a person, such person is not a necessary party. While proper party is a person if its presence before the court is necessary to enable it to effectually and completely adjudicate upon and settle the questions involved in the suit and it is not necessary that the plaintiff must seek relief against such proposed defendant.
7. The expression “question involved in the suit” as used in Order 1 Rule 2 CPC has reference to only those questions which arise between the parties to the suit. The object of adding proper party is to avoid needless multiplicity of the suit. The person must be a person whose interest is likely to be affected even though no relief claimed against him. It does not extend to a person who has no interest which is likely to be affected by the proceedings nor does it embrace person’s general interest in common with others. If the defendant was found to be neither a necessary party nor proper party his name can be struck out. It is also well settled that where there is no cause of action against any such defendant, his name may be struck off from the plaint. It is also well settled principle of law that where a person has been joined as formal defendant in the suit is neither necessary party nor proper party nor any relief has been sought by the plaintiff against him, his name as defendant may be struck off from the plaint and the court even suo motu can struck out the name of the defendant, who has been wrongly impleaded against whom no cause of action is shown.
8. The plaintiff has itself drawn distinction in the plaint, the relief has been claimed against the defendant No.1 but neither any cause of action has been described against the defendant No.2 nor any relief has been claimed even the plaintiff has failed to disclose any logical reason which may show that without presence of the defendant No.2 the issue involved in the suit cannot be adjudicated and decided properly. Mere mentioning the words proforma defendant with the defendant No.2 in the title of the plaint is not sufficient to fulfill the criteria and acid test of necessary or proper party. Suing defendant No.2 cannot be permitted merely for the reasons that the defendant was present in the meeting convened under the Chairmanship of Additional Secretary, Ministry of Petroleum and Natural Resources. If only on this reason parties are allowed to be added without examining the facts whether their presence is necessary in the suit, it will amount to an unwarranted dragging of a party into lawsuit or litigation and also persecution and harassment for such a party to religiously attend and observe the court proceedings on each and every date and bear unfounded expenses of litigation in which it has nothing to say. Instead of making party, the proper course for the plaintiff would be to call any such person as witness in the suit if anything is to be testified through him. In the suit in hand also the plaintiff made the defendant No.2 party on the ground that it has assigned 35% working interest from its working interest to the plaintiff and they also attended a meeting convened between plaintiff, defendant and OGDC to resolve persistent delay in payment by the defendant No.1 to the plaintiff but fact remains that there is no dispute between the plaintiff and defendant No.2. which fact is clearly transpiring from the application of defendant No.2 that they are not at issue on any question of law or fact with the plaintiff but at the same time this important aspect can be ignored that no relief is claimed against the defendant No.2 which has been arrayed as proforma defendant, hence no judgment can be announced against the defendant No.2 in terms of Order 15 Rule 1 & 2 CP.C. However, if the plaintiff wants to prove that the alleged liability was admitted by defendant No.1 in the meeting in presence of representative of defendant No.2 or any modality was also settled for payment as averred in the plaint then of course after settlement of issues, the plaintiff may cite the defendant No.2 in the list of witnesses for summoning them at the time of evidence.
9. Though the plaintiff is dominus litis but the theory of dominus litis cannot be overstretched in the matter of impleading the parties because it is the duty of the court to ensure that if for deciding the real matter in dispute a person is necessary or proper party the court can order to implead such person and vice versa can also order deletion of any such person from the plaint who is not found to be proper or necessary party. The power to strike out or add parties may be exercised at any stage of proceedings which means any such stage of proceedings till the passing of final decree in the suit if court comes to the conclusion that a person who ought to have been joined and whose presence before the court is necessary to enable the court to completely adjudicate and settle all questions it can order impleadment. What makes a person a necessary party is not merely that has relevant evidence to give on some questions involved that would only make him necessary witness. The only reason which makes it necessary to make a person a party to an action is so that he should be bound by the result of action.
10. In the case reported in AIR 1963 SC 786 (Udit Narain Singh v. Board of Revenue) it was held that the law as to who are necessary or proper parties to proceedings is well settled. A necessary party is one without whom no order can be made effectively; a proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the questions involved in the proceedings. It is clear from the averments of the plaint that the presence of defendant No.2 is not necessary in order to enable the court to effectually and completely adjudicate upon and settle all questions involved in the suit. At this juncture I would like to refer to PLD 1965 Dacca 266 (Lal Mohan Saha v. Krishnalal Saha & others). In this case also proforma defendant applied for striking out their names which application was dismissed by the learned subordinate Judge. The order was assailed in the civil revision and the learned D.B. of Dacca High Court held that not only the company itself but also the plaintiff and other parties have nothing to show that the plaintiff is interested in getting a relief against the company and in this view of the matter, the learned D.B. strike out the name of proforma defendant from the record and also held that learned subordinate judge failed to exercise jurisdiction vested in him according to law. The provision of Order 1 Rule 10 C.P.C does not mean that any person who has distinct or indirect relationship or connection with either the plaintiff or defendant ought to be joined but he must be directly and substantially connected with the issue which have to be adjudicated by the court. Re: 2003 CLC 930.
11. The upshot of the above discussion is that the application brought under Order 1 Rule 10 CPC is allowed and the name of proforma defendant No.2 is struck out from the array of defendants. The learned counsel for the plaintiff is directed to file amended title. Application disposed of.