1. ' ARSHAD NOOR KHAN, J.---By this constitutional petition under Article 199 of Constitution of Islamic Republic of Pakistan, 1973, the petitioner has challenged the vires of judgment, dated 6-12-2005 passed by learned IIIrd Additional District Judge, Sukkur, in. Civil Appeal No,18 of 2005 whereby the order passed by the learned IInd Senior Civil Judge, Sukkur in F.C. Suit. No,19 of 1999, dated 25-5- 2005 thereby dismissing the application under Order I, Rule 10, C.P.C. Filed by the petitioner to implead him as party in the suit, has been maintained.
2. ' The facts leading to the present petition, in brief, are that the petitioner entered into agreement of sale with the respondent Nos. 1 and 2 with regard to property bearing S.No,B-52/1 and S.No,B-51/2 admeasuring 80/6 sq. Yds situated near Shahzado Hotel, Mashahoor Muhalla, Karbala Road, Sukkur. Earlier to the afore-stated sale agreement executed in between the petitioner and respondent Nos.1 and 2 on 8-4-2000 the respondents Nos.1 and 2 had filed Civil Suit No,19 of 1999 for declaration and injunction against the respondent No,3 which was pending adjudication and during the pendency of the said suit, the present petitioner entered into an agreement of sale of the property in question with respondents Nos. 1 and 2, as discussed above. After execution of the agreement, the petitioner also filed Suit No,110 of 2003 for specific performance of the contract.
3. Similarly, the petitioner filed application under Order I rule 10, C.P.C. Before the learned trial Court in Suit No,19 of 1999 seeking therein to implead him as necessary party in the suit on the basis of sale agreement executed in between the petitioner and respondents Nos.1 and 2. The said application was contested by respondents Nos.1 and 2 and the learned Senior Civil Judge after hearing of the learned counsel for the respondents Nos.1 and 2 and intervenors, dismissed the said application vide order, dated 25-5-2005. The petitioner being highly aggrieved and dissatisfied with the order passed by the learned trial Court filed Civil Revision No,18 of 2005 which was entrusted to the learned IIIrd Additional District Judge, Sukkur, and the learned Judge, after hearing of learned counsel for the parties, dismissed the revision application vide order, impugned herein. Hence the present petition.
4. ' We have heard Mr. Sarfraz A. Akhund, learned counsel for the petitioner and Mr. Abdul Qadir Shaikh, learned counsel for the respondents Nos.1 and 2. Nemo for remaining respondents.
5. ' Learned counsel for the petitioner vehemently contended that after execution of sale agreement, dated 8-4-2000, a valuable right stands accrued in favour of the petitioner in the property in dispute, which is pending in Suit No,19/1999; therefore, petitioner was necessary and proper party to be impleaded as party in the suit to defend the suit and the learned two Courts below did not consider the application of the petitioner and wrongly dismissed the said application and prayed for setting aside of the orders passed by both the Courts below.
6. ' Mr. Abdul Qadir Shaikh, learned counsel for the respondents Nos. 1 and 2 vehemently controverted the arguments advanced by the learned counsel for the petitioner and has contended that the order passed by the Courts below does not suffer from jurisdictional or procedural defect; therefore, it need no interference in the constitutional jurisdiction of this Court. He further contended that the suit filed by the petitioner has already been adjudicated upon and his right has been safeguarded; therefore, he is neither necessary nor proper party in the suit filed by the respondents Nos.1 and 2 against the respondent No,3. He further contended that the right of the petitioner has also been safeguarded in the sale agreement, dated 8-4-2000 wherein a condition has been mentioned that the vendor will get the property in question vacated from the respondent No,3 and will hand over the vacant possession to the vendee and the said condition is in existence; therefore, the petitioner is not necessary nor proper party to be impleaded in the present suit and the learned trial Court as well as appellate Court rightly declined to implead him as a party. In support of his contention he has relied upon the case of Javaid Akhtar v. IIIrd Additional District Judge (South) and 2 others reported in 1996 CLC 1300 and the case of Muhammad Hussain Munir and others v. Sikandar and others reported in PLD 1974 SC 139.
7. ' We have considered the arguments advanced on behalf of the parties and have gone through the material available before us as well as the case-law relied upon by the learned counsel for the parties.
8. ' Admittedly the suit No,19 of 1999 was filed by the respondents Nos.1 and 2 on 25-1-1999 and admittedly at the time when suit was filed by these respondents, the petitioner was not in picture because the sale agreement has been subsequently executed in between the parties on 8-4-2000 and after execution of sale agreement though ownership did not change but a right to some extent devolved in the petitioner to contest the suit which was also pending adjudication prior to execution of sale agreement. The petitioner also filed a suit for specific performance of contract vide Suit No,110/2003 and similarly he filed application under Order I, rule 10, C.P.C. To implead him as a party in Suit No,19/1999. During the pendency of the present litigation in pursuance of dismissal of application under Order I ,rule 10 C.P.C. Admittedly the suit filed by the petitioner was decreed and even after passing the decree in his favour, a valuable right has become accrued in his favour to defend the suit filed by the respondents Nos.1 and 2 against respondent No,3. In our humble opinion, after execution of sale agreement, the petitioner became proper and necessary party to the declaratory Suit No,19/1999 and he was very much within his right to defend his right, if any, if extinguished by way of observation passed by the civil court in Suit No,19/1999; therefore, the petitioner was necessary and proper party in Suit No,19/1999 and both the learned lower courts did not decide the application in its true perspective.
9. ' The contention of the learned counsel for the respondents Nos.1 and 2 that the orders passed by the trial Court and the Appellate Court do not suffer from jurisdictional or procedural defect, in our humble opinion, is not correct for the reason that the jurisdiction vested with the learned Appellate Court has not been exercised by the learned IIIrd Additional District Judge in its true perspective to adjudicate that after execution of sale agreement, the petitioner acquired a valuable right to become a necessary party in the suit to safeguard and protect his legitimate right and the same was the position when the trial Court passed the impugned order. The order passed by the appellate Court; therefore, suffers from jurisdictional defect while refusing to entertain the request of the petitioner to join him as a necessary party. Learned counsel for the petitioner has relied upon the case of Javiad Akhtar, supra, wherein it has been observed by a single Judge of this Court that the petition is not maintainable, in case, if the order impugned in constitutional petition is not suffering from jurisdictional defect. In the present case, as discussed above, the learned lower Courts did not consider the defence of the petitioner regarding his impleadment as party to, the suit, specially after decree of the suit, as such the case of Javaid Akhtar, supra, in not applicable to the circumstances of the present case. The case of Muhammad Hussain Munir, supra relied upon by the learned counsel for the petitioner also speaks about the general proposition to the effect that the trial Court which has got jurisdiction to decide the matter has, jurisdiction to decide it, rightly or wrongly and the said jurisdiction could not be challenged in the petition but the said observation of the Hon'ble Supreme Court shows that the constitutional jurisdiction of this Court has not been ousted for the reason that, in case, if the Courts below have not exercised the jurisdiction vested in them properly or legally, this Court can entertain and adjudicate upon the petition and decide the same in accordance with law.
10. ' For all the afore-stated reasons and circumstances, we find that the orders passed by the learned two Courts below suffer from legal infirmity and could not be sustained. The petition is admitted and allowed. Petitioner will be impleaded as necessary party as defendant .No,4 in Suit No,19 of 1999 and after filing the amended title, the learned trial Court will afford an opportunity to the petitioner to file written statement and then proceed with and decide the matter in accordance with law.
11. ' Listed application is also disposed of in view of observation made above.