' On the conclusion of hearing of this case, I had by a short order dismissed the revision application.
I now proceed to record reasons for the said short order.
2. The applicants are the legal heirs of Rahmatullah and the respondents are the legal heirs of Muhammad. Both Rahmatullah and Muhammad owned 50% share in a property bearing Survey No, GK-2/32, at Kassim Amir Street, Kharadar, Karachi. A suit was filed by the applicants in the Court of the XVII Civil Judge at Karachi, claiming accounts from the predecessor-in-interest of the respondents. A written statement was also filed is the suit. Before the evidence in the suit could be recorded or a preliminary decree could be passed the predecessor-in-interest of the present respondents died. On 3-3-1972, the applicants who were the plaintiffs in the suit made an application under Order XXIII, rule 1, C. P. C. Seeking permission to withdraw the suit "with permission to file fresh suit for specific amount due and payable to plaintiffs". It was further stated in the application that since the suit was for accounts and Muhammad, the predecessor-in-interest of the respondents had died the suit had become infructuous. Before an order could be passed on this application the respondents/defendants filed an application under Order I, rule 10, C. P. C. Read with Order XVI, rule 17 and section 151, C. P. C. Praying that the names of the plaintiffs and defendants in the suit may be transposed in the array of parties. Consequential amendments were also prayed for so as to convert the written statement into a plaint.
3. Both these applications were disposed of by the learned Civil Judge by an order dated 8-3-1978.
By this order the application of the applicants/ plaintiffs to withdraw the suit with permission to file a fresh suit was dismissed and the application of the respondents/defendants for transposition of the parties was granted. Aggrieved by these two orders the applicants have filed the present revision application.
4. I have heard Mr. Zulfikar Ali Valliani for the applicants and Mr. Ghulam Hussain Abbasi for the respondents.
5. The arguments before me have mainly centred on the order of transposition of parties under Order I, rule 10, C. P. C. If such transposition was allowed the application under Order XXIII, rule 1, C. P.
C. Would become infructuous. Additionally, of course, it has been contended that on the plaintiffs making an application under Order XXIII, rule 1, C. P. C. The Court could had no powers to reject the application.
6. The provisions of sub-rule (2) of rule 10 in Order I of the Code of Civil Procedure read as follows:- "(2) The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added."
7. The words are wide enough to admit of transposition of parties in suitable cases. The import of the sub-rule was examined by a Division Bench of the erstwhile High Court of West Pakistan in the case of Jamilur Rahman v. Muhammad Asghar and others (1) and the learned Judges observed that the paramount consideration in impleading proper parties is to avoid multiplicity of suits. The provision is one of convenience and seeks to avoid multiplicity in litigation. A learned Judge of the Lahore High Court in the case of Amamuddin v. Mst. Fazla (2) referred to earlier cases reported in AIR 1928 Cal. 138, and AIR 1929, Cal. 969 and formulated the principles underlying the applicability of Order I, rule 10(2), C. P. C. In the following words :- "In exercising the discretion conferred by Order I, rule 10 (2), Civil
(1) PLD 1963 Lab. 1076 (2) PLD 1949 Lab. 173 Procedure Code, it is proper to consider the convenience of both parties as well as the necessity of providing conditions in which a full and final adjudication may be made of the dispute between the parties."
8. Mr. Z. C. Valliani has however, invited my attention to the case of Malik Mumtaz All v. Pakistan (1) to sustain an argument that the power of ordering transposition is not to be exercised in a case where the defendants' claim runs completely counter to that set up by the plaintiffs and for such reason 'an order of transposition would radically alter the character of the suit. In this case also, Anwarul Hach C. J. (as he then was) recognised complete and effectual adjudication of the questions as the paramount consideration underlying Order I, rule 10, C. P. C. The principles that are deducible from a reading of Order I, rule 10 (2), C. P. C. And the case-law referred to above would be that in suitable cases it would be open to a Court to transpose the parties in a suit for the effectual determination of the rights of the parties in respect of the subject-matter of the suit unless such recourse would alter the nature of the suit.
9. Applying the above text to the instant case it is necessary to refer to the plaint and the written statement. In both these pleadings the parties alleged against each other that amounts collected by way of rent by either of them during the span of time beginning 1966 and ending at the time of filing of the suit, had not been accounted for. It was therefore, the case of both the parties that the opposite party was liable to render accounts. It is no doubt true that in the plaint a decree was sought for actual amount that may ultimately be found due but since even a preliminary decree had not been passed that stage has not yet to arrive. Suffice it to say that both parties were claiming accounts from each other. In these circumstances, it could not be said that by transposition a new cause of action for adjudication by the Court would arise or the relief would be materially different. In a suit for accounts if ultimately amount is found due against the plaintiff the decree would follow to his detriment. I am clearly of the view that b allowing the transposition the character of the suit and the nature and scope of relief remains unaltered.' The order for transposition therefore, was justified in the circumstances.
10. Mr. Z. C. Valliani has however, invited my attention to the case of Dr. Haji Abdullah Sahib v. Shafi Muhammad Sahib (2) to base a contention that an order under Order I, rule 10, C. P. C. Was not warranted in this case because the applicants/plaintiffs had made an application to withdraw the suit. In that context he also pointed out that an order for withdrawal of a suit could even be made by the Supreme Court at appellate stage PLD 1965 SC 634. It is no doubt true that a plaintiff could always make a prayer for withdrawal of a suit filed by him, but in the present case the prayer for withdrawal was rejected for the reason that the application for transposition was allowed. That being so, the prayer for withdrawal was rightly rejected to avoid multiplicity in litigation. What is more than the applicants/ plaintiffs had themselves craved for leave to file a fresh suit for recovery of specified amount.
11. Mr. Ghulam Hussain Abbasi has also pointed out that the applicants/plaintiffs were anxious to withdraw the Suit because during the pendency of the suit they had sold away their rights and interests in the suit property in spite of a Receiver having been appointed. In such circumstances, the
(1) PLD 1971 Lah. 395 (2) AIR 1945 Mad. 150 respondents/defendants had made an application against the applicants/ plaintiffs for contempt.
Such application was still pending. Mr. Ghulam Hussain Abbasi therefore, stated that the withdrawal of the suit might have adversely affected the proceedings in the contempt application and it was all the more necessary that the application for withdrawal should be rejected. Mr. Ghulam Hussain Abbasi has also pointed out that the applicants/ defendants had sold undivided half share in the property and that was likely to affect the rights and interests of the respondents/defendants as the new owner might spring up to claim a particular portion of the property and thereby prejudice their rights. It seems that the withdrawal application itself was not bona fide and was motivated to avoid the applicants' plaintiffs' punishment for contempt as also to create complications in the matter of ownership of the half share of property belonging to the respondents/ defendants. Be that as it may, there were good and substantial reasons for allowing transposition of parties so that the real dispute between the parties could be adjudicated fully and effectually.
12. Mr. G.Hulam Hussain Abbasi also raised the point that in the restricted jurisdiction under section 115 of the Code of Civil Procedure this Court cannot exercise revisional jurisdiction to correct the nature of error, if any. He pointed out that the orders passed by the learned Civil Judge were of a nature which the law allowed and therefore, the order could not be said to have been passed in exercise of jurisdiction not vested in the Court by law nor could it be said that the civil Court had failed to exercise its jurisdiction which so vested in the civil Court. In regard to clause (c) of subsection (1) of section 115, C. P. C., the applicant can succeed only if he could show that the Court in exercise of its jurisdiction had acted with such material irregularity as was likely to affect the decision in the case. In the present case, nothing has been pointed out to show that the decision in the suit was likely to be affected by passing the two orders which the Civil Judge passed.
13. In the result, this revision application is dismissed with costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.