ORDER SHEET
IN THE HIGH COURT OF SINDH, KARACHI
Suit No.1139 of 2007
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Date Order with signature of Judge.
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1. For orders on commissioner report dated 13.6.2011.
2. For argument on CMA No.4891/10 as per Court’s
Order dated. 21.1.2013
Date of hearing: 30.09.2013
None for the plaintiff,
Mr. Saleem Iqbal, Advocate; for defendant No.1.
Mr. Masroor Alvi, Advocate; for defendant No.2.
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Muhmmad Junaid Ghaffar, J:- Through this order the listed application at Serial No.2 filed by defendant No.2, under Order 1, Rule 10(2) CPC, read with Section 151 CPC will be disposed of. Notices were ordered to be issued on this application and counter affidavit has been filed by the plaintiff as well as objections by the defendant No.1.
2. This application has been filed on behalf of defendant No.2 whereby it has been prayed to delete /strike out the name of defendant No.2 from the array of defendants, as the presence of defendant No.2 is neither necessary, nor the defendant No.2 is a proper party and hence not required for adjudication of the present suit.
3. Briefly stated, facts of the case are that the plaintiff has filed this suit for damages against defendants No.1 & 2. It is stated in the plaint that the plaintiff was an employee of defendant No.1 (KASB Bank Limited) and had joined the service of defendant No.1 as Grade III officer in the year 1995 and was subsequently promoted to Grade II w.e.f. 01.01.1997 and as Grade I officer w.e.f 01.01.1999. It is further stated that the plaintiff was appointed as AVP and subsequently as V.P, w.e.f 01.01.2003. It is also the claim of the plaintiff that his services were always appreciated by different managements of defendant No.1 including the present one. The plaintiff claims that initially the plaintiff was attached with the I.T. Division and ultimately was appointed as I.T. Manager. Thereafter the plaintiff was transferred to the Operation Department w.e.f. 01.01.2004. It is also averred that the plaintiff was appointed as Branch Manager initially at Stock Exchange Branch and thereafter to the Gulshan-e-Iqbal Branch of defendant No.1. It is the case of the plaintiff that the plaintiff had always discharged his duties honestly, sincerely and up to the entire satisfaction of the management of defendant No.1. However, on 22.11.2004 according to the plaintiff, he was called upon by the Chief Operating Officer in his office and was asked to tender his resignation because certain observations had been made against him by the officer/inspector of defendant No.2 (State Bank of Pakistan) in their inspection report, to which the plaintiff refused, and was accordingly dismissed from service vide letter dated 27.11.2004.
4. The plaintiff after dismissal from service has filed the suit for damages and has prayed for passing judgment and decree for Rs.70 million against the defendants jointly and severely alongwith interest @ 20% per annum until recovery. Subsequent to filing of the suit and issuance of summons the defendants Nos.1 & 2 have filed their written-statements and thereafter on 13.4.2009 this Court has framed the following issues:-
“1. Whether the suit is not maintainable under the law?
2. Whether the plaintiff was provided any show cause notice/charge sheet or opportunity to defend the alleged allegation against him?
3. Whether the defendant No.1 complied the Rules and Regulations of the Services mentioned in the Bank Human Resources Manual?
4. Whether defendant No.2 being a regulatory authority, is empowered to inspect the working of Banking Company and any Branch thereof, and submit a report as per Banking Companies Ordinance, 1962?
5. Whether the plaintiff on account of not providing a clearance certificate remained jobless and unemployed uptil now?
6. Whether the plaintiff suffered mental torture and has undergone stress and strain on account of the alleged termination without show cause notice?
7. Whether the plaintiff is entitled to claim damages as prayed in the suit?
8. What should the decree be?
5. By consent of the parties the Court also appointed Commissioner for recording of evidence and according to the record available from the evidence file, the evidence of the plaintiff has been completed including cross-examination by the advocate of defendant No.1 as well as defendant No.2. Subsequently the affidavit-in-evidence on behalf of defendant No.1 was also filed and the witness of defendant No.1 has also been cross-examined by the counsel for the plaintiff. Whereafter on 23.4.2010 the listed application has been filed by defendant No.2 and instead of producing/leading the evidence before the commissioner, the matter is pending for disposal of the listed application. Since the Advocate appearing for the plaintiff has been elevated to the Bench of this Court, on 09.09.2013 this Court ordered issuance of intimation notice directly to the plaintiff which remained unserved due to some change in the address of the plaintiff available on record. The matter is pending since long and at the request of the counsel for defendants Nos.1 & 2 and on the basis of order dated 21.01.2013; the listed application has been heard on the basis of counter-affidavit filed on behalf of the plaintiff.
6. The learned counsel for defendant No.2 has argued that there is no allegation against the defendant No.2 in the plaint and as such the plaintiff has no case against the defendant No.2. He also argued that defendant No.2 is only performing is duties under Section 40-A of the Banking Companies Ordinance, 1962 and the action, if any, taken by the defendant No.1 on the basis of inspection report of Defendant No 2 dated 30.06.2004 could not be made basis for claiming any damages against the defendant No.2 as they have only performed the function as contemplated under the Banking Companies Ordinance, 1962. He further argued that the report only alleged mis-conduct in respect of the operations of defendant No.1 and since the plaintiff was an employee of defendant No.1, as such the defendant No.2 could not be subjected to any claim of damages. He has further argued that defendant No.2 is only a regularity authority of the affairs of defendant No.1 and hence has no direct connection with the plaintiff in discharge of his services which were engaged by the defendant No.1. In support of his arguments he has referred to a judgment reported in 2010 YLR 256.
7. The counsel for defendant No.1 has vehemently opposed the grant of the listed application and argued that the action taken by defendant No.1 against the plaintiff was based on the Audit report dated 30.06.2004 prepared by the officers of defendant No.2 and as such they could not be allowed to be deleted from the array of defendants in the present circumstances. The plaintiff in its counter affidavit has also objected to the grant of the listed application and it has been stated that defendant No. 2 is a necessary and proper party and the action of defendant No. 1 is based on the report dated 30.06.2004 prepared by defendant No. 2 and the whole case of the plaintiff revolves around the said report which is the only basis for such extreme action taken by defendant No. 1 and hence the deletion/striking out of the name of defendant No. 2 is uncalled for. It is also stated in the counter affidavit that since the counsel for defendant No. 2 has already cross-examined the plaintiff, therefore, they should remain as defendant in the present suit for the purpose of recording of further evidence and hence the application has no merits and liable to be dismissed.
8. I have heard both the learned counsels, also perused the record and have also gone through the counter affidavit of the plaintiff. At the very outset a question was put to the learned counsel for the defendant No. 2 as to why this application under Order 1 Rule 10 (2) CPC has been filed at such a belated stage in the year 2010, whereas the suit is pending since 2007 and as to why the written statement was also filed and defendant No. 2 had also participated in the evidence being recorded before the Commissioner which is almost completed, except the evidence of defendant No. 2, to which the learned counsel for defendant No. 2 could not satisfactorily reply, except that according to him such application could be filed at any stage of the proceedings.
9. It is to be seen that although the application under Order 1 Rule 10 (2) CPC, can be filed at any stage of the proceedings, but such leniency provided under the law is only exercisable, once it transpires that something new has developed in the proceedings and for a proper appraisal and adjudication of the case, the addition and/or deletion of the parties is unavoidable and for this purpose an application is to be made. In the present case, it is an admitted position that defendant No. 2 had complete knowledge of the case of the plaintiff and had filed its written statement and so also participated in the evidence being recorded before the commissioner, wherein almost the entire evidence of the plaintiff and defendant No. 1 is completed and the matter is ripe for leading of evidence by defendant No. 2, this present application has been filed. Therefore, it could not be said that something new is added in the proceedings except, that the defendant No. 2 now, does not want to either lead the evidence or to proceed any further in the matter and wants to be deleted from the array of the defendants as such. It is a settled law that while deciding the application under order 1 Rule 10 (2) CPC, for deletion from the array of the defendants the court has to minutely examine the pecuniary facts of each case and after satisfying itself, as to whether the case for deleting/striking out of the name has been made out in the matter, pass necessary orders by allowing such request. The court has to see and examine the averments made in the plaint primarily to decide this aspect of the case, as there is no standard rule or procedure laid down, except to examine the contents of the plaint and the facts and circumstances of the case. It is the case of the plaintiff that the only consideration before the defendant No. 1 to take such an extreme action of dismissal from service was based entirely on the audit report prepared by the defendant No. 2, and as such the presence of defendant No. 2, is necessary for the final adjudication of the case. It is also available on record that the plaintiff wrote a letter dated 24.3.2006 (Annexure P/4) to the defendant No. 2 and inquired as to the details of the inspection report dated 30.6.2004 on the basis of which the defendant No.1 had dismissed the plaintiff from its service. In this letter it was also stated by the plaintiff that he was advised that in view of defendant No.2’s inspection report, it was not necessary for the defendant No.1 to follow their normal procedure regarding dismissal from service. He had further stated that he was not confronted with the contents of the report of defendant No.2. Subsequently on 29.3.2006 (Annexure P/5) the defendant No.2 addressed a letter to the plaintiff and advised to approach defendant No.1 for redressal of its complaint. There is also a reference to a letter dated 09.06.2006 (Annexure P/6) issued by defendant No.1 to the plaintiff wherein it was stated that the plaintiff has been found involved in number of serious irregularities as observed by the defendant No.2 in its inspection report Appendix I(i) dated 30.06.2004 on the basis of which the action for dismissal from service was taken.
10. From the perusal of the above record available with the plaint and the examination of the contents of the plaint, it seems that the presence of defendant No.2 is necessary for the final adjudication of the case as the plaintiff was dismissed from service on the basis of the said report issued by the defendant No.2 and so also from the fact, that the defendant No.1 has categorically stated that they have relied upon the report of defendant No.2 for taking such an extreme action against the plaintiff. Therefore, since the claim of the plaintiff against the defendant No.1 is based upon the inspection report of defendant No.2, as such the presence of defendant No.2 is very much a necessity and things would only be crystalized after completion of the evidence of defendant No.2, as the plaintiff relies and depends upon the report of defendant No.2 for making out its case of damages against the defendant No.1.
11. It is also a matter of record that the Defendant No 2 has already taken a stance in the written statement to the effect that the Defendant No 2 is not liable for any of the acts as alleged by the Plaintiff in its pleadings; that no cause of action had accrued against the Defendant No 2; that the suit as framed is not maintainable. Therefore, the right path for the Defendant No 2 was to lead its own evidence to this effect, and not to hold back or retard by filing this application after such lapse of time.
12. The reliance placed by the Defendant No 2 on a judgment reported as 2010 YLR 256 (a decision of this court) is inapplicable to the facts and circumstances of the case in as much as in that case, although, the Defendant No 2 had filed an application under Order 1 Rule 10(2) CPC after framing of issues, but what prevailed upon the learned judge of this court, was, that the issues framed in that matter had no relevance or cause of action against the Defendant No2 , and as such it was held that presence of Defendant No 2 was not required for an effectual and complete determination of the questions involved in the suit, and was not a proper party to the proceedings. Unfortunately, here in this case, there is a direct issue (Issue No 4, see Para 4 above) involving the Defendant No 2 and its presence cannot be dispensed with, while adjudicating the same. Therefore reliance on the said case is misconceived. Conversely, I have been able to lay my hands on another judgment of this court reported as 2001 CLC 90 in the case of M/s Frontier Ceramics Limited V/s United Bank Limited, wherein his Lordship Mr. Justice Sarmad Jalal Osmany, J, (as he then was, and now, a Judge of the Honorable Supreme Court), in, more or less similar facts, has held otherwise. This was a case of suit under section 9 of the Banking Companies Act 1997, the Plaintiff was provided a financial facility through a consortium of Defendant Nos. 1 to 6, (Banks), where after a dispute arose and a suit was filed in this court in which (State Bank of Pakistan {“SBP”}) was also arrayed as Defendant No 7. The Defendant No 7 (SBP) had challenged the maintainability of the suit against it on the ground that no cause of action had been disclosed against them as it was only the Incentive Scheme (B.P.R.D: Circular 19 of 1997) which was floated by the Defendant No 7, and no relief was claimed against them. After filing of written statements, a specific issue was framed in this respect, that “whether the suit was maintainable it its recent form against the Defendant No 7”, and the Honorable Court while deciding the issue has held as under;
“As regards the first issue whether the suit is maintainable against the Defendant No 7, it would be seen that no relief has been sought against it. So also the legal notice regarding the non-implementation of the Scheme has not been produced by the plaintiff and it has also not been admitted by the plaintiff witness under cross-examination that the relief has been sought against the State Bank of Pakistan. However, merely for this reason, it cannot be said that the Suit is not maintainable against the State Bank of Pakistan. In my view as the Scheme has been floated by the State Bank of Pakistan its presence is necessary before this Court failing which the issue whether the Scheme applies to the Company or not cannot effectively be adjudicated. Consequently, this is issue No 1 is answered in the positive.”
Therefore on the touch stone of this judgment, alone, the contention of the learned counsel of the Defendant No 2 cannot be accepted. However, there are other reasons as well which have prevailed upon me to dismiss the listed application, which have been discussed in the order.
13. In fact the case of impleadment of parties to a suit is dependent upon the Plaintiff as the Plaintiff is, as a general rule, “Dominus Litis”, that is the controller of the suit or litigation, (see Altaf Parekh v/s Delements Construction Company 1992 CLC 700) and cannot be compelled to initiate litigation against a specific person, or drop the same, as the case may be. It is entirely dependent on the case set up by the Plaintiff in the plaint, as to who should be sued and arrayed as defendant, as it is for the Plaintiff to first determine the cause of action against a specific defendant and then prove it in evidence. Merely for the fact that, at the pre-trial stage, one feels that no case would be proved or cannot be proved, the name of a defendant cannot be strike out or deleted, except in very remote cases, not at least in the case in hand. The Defendant No 2, has all along participated in the suit, by filing of written statement, attending the evidence not as an observer, but as a Defendant by exercising the right to cross examine the Plaintiff, hence now at this belated stage, by filing an application under Order 1 Rule 10(2) CPC, the Defendant No 2 cannot achieve anything, but delay the finalization of the proceedings, which are stuck for want of evidence of the Defendant No 2 itself. In fact, the Defendant No 2 is debarred from raising any such objection at this stage of the case, by its own conduct. Lately, it has become, more or less a practice, to file applications at the stage of recording of evidence, so as to gain more time and to frustrate the case of the Plaintiff or the other side, as naturally, this delay is not making much of a difference to such litigants. The court cannot remain oblivious or benighted of such acts, and must exercise its writ in a proper and quick manner so that the disputes are settled as early as possible.
14. The whole substructure of the plaintiff’s case is on the audit report dated 30.6.2004 prepared by the Defendant No 2 which has become a sole ground for Defendant No 1, to dismiss the plaintiff from service, which is an extreme action; has precluded the plaintiff from seeking any other job as no objection certificate or clearance has not been issued by the Defendant No 1; hence, the Defendant No 2 has rightly been arrayed as a party. Therefore, for what has been discussed hereinabove, the listed application filed by the Defendant No 2, under Order 1 Rule 10(2) CPC, is hereby dismissed. Since the matter is already at the advance stage of evidence before the commissioner, the office may send copy of this order to the learned commissioner with directions to complete the evidence within a period of 2 months from the date of receipt of this order.
15. Listed Application stands dismissed.
Dated:___/10/2013 JUDGE