' The petitioner in this case is aggrieved by the order dated 24th May 1979 dismissing the revision petition filed by the petitioner against the order dated 14th January 1978 whereby an application filed by the petitioner under Order I, rule 10 of the C. P. C. Was dismissed.
2. The brief facts of the case are that the petitioner filed a suit for declaration and permanent injunction against respondent No, 3 which Was decreed by the learned trial Court on 22nd June 1974. Another suit was filed by Khan Mohammad respondent No, 6 against respondents Nos. 4 and 5 on the basis of an agreement to sell the suit land allegedly executed on 25th May 1973. It appears that on 15th July 1974 respondents Nos. 4 and 5 admitted the suit of Khan Mohammad respondent No, 6 and the suit was decreed as prayed on 12th June 1974.
3. Both the petitioners and Khan Mohammad respondent No, 6 filed cross appeals and the cases were remanded by the learned Additional District Judge, Kasur by his order dated 25th November 1974 with the direction that the petitioner should implead the rival suitors. This order was complied with by the petitioner by impleading Khan Mohammad as a defendant in the suit.
' It appears that the suit filed by Khan Mohammad respondent No, 6 was dismissed by the trial Court on 13th December 1976 whereas the suit filed by the present petitioner remained pending.
' The petitioner moved an application under Order 1, rule 10 of the C. P. C. Before the trial Court praying that since the suit filed by Khan Mohammad respondent No, 6 has been dismissed, therefore, the names of respondents Nos. 4 to 6 be deleted as they have ceased to be necessary or proper parties. By his order dated 14th January 1978 the learned trial Court dismissed the application holding that both the petitioner and respondents Nos. 4 to 6 are interested in the suit land while petitioner claims to have purchased it from Jumma respondent No, 3, respondent Nos. 4 and 5 claim to have obtained the suit land from Jumma under hiba which has been challenged by the petitioner in another suit pending between the petitioner and respondents Nos. 3, 4 and 5. Khan Mohammad respondent No, 6 claims to have acquired the right to take possession of the suit land on the basis of an agreement of sale dated 25th May 1973 allegedly executed by respondents Nos.
4 and 5 in his favour. From these facts the learned trial Judge came to the conclusion that respondents Nos. 4, 5 and 6 were interested in the result of the suit and rejection of the plaint of the suit filed by Khan Mohammad respondent No, 6 for possession of the suit land does not make respondents Nos. 4, 5 and 6 unnecessary parties. In the result he dismissed the application filed by the petitioner under Order I, rule 10 of the C.P.C.
' The petitioner challenged the order dated 14th January 1978 by a revision petition before the learned Additional District Judge, Kasur who by his order dated 24th May 1979 held that Khan Mohammad respondent No, 6 was impleaded as a defendant on the direction of the learned Additional District Judge. He took note of the fact that Khan Mohammad respondent No, 6 claims to be in possession of the disputed land. His version was supported by Jumma who submitted an application through Mr. Asghar Bashir Gora, Advocate admitting the claim of Khan Mohammad respondent No, 6 and thus recorded the finding that Khan Mohammad is an interested party.
6. Before me the learned counsel for the petitioner attempted to argue that under sub rule (2) of rule 10 of Order I of the C.P.C. The trial Court enjoys an absolute power to add or delete any party.
The learned counsel relied on the case reported as Mrs. S. M. Hanif v. Mst. Khurshid Begum and others (1) where the following observations appear at page 663 :- "Reference to rule 10 of Order I of the Civil Procedure Code would show that the Court has the power at any stage of the suit to substitute or add a plaintiff or to join any party, who is necessary or proper, or to strike off any party, who has been improperly joined. The Court can exercise this power irrespective of the fact whether any party applies to it or not in this behalf. It appears to me that the intention of the rule is that the power may be exercised at any stage and, therefore, it would not be in accordance with the spirit of the rule to impose an artificial restriction in this matter by invoking the provisions of Order 1X, rule 9, read with section 141 of the Code. An application under Order I, rule 10 of the Civil Procedure Code, must, therefore, be regarded as a miscellaneous application, which is not an original matter in the nature of a suit and, therefore, not covered by section 141 of the Civil Procedure Code."
' In that case the petitioner applied under Order I, rule 10 of the C.P.C. To be impleaded as a party in proceedings initiated by the respondent for (1) PLD 1961 Lah. 059 being appointed as Mutwalli of the waqf created by the petitioner's father and the case did not involve the deletion or striking out the name of any party.
' The learned counsel next relied on Mehr Allah Ditta and another v. Muhammad Ali and another (1).
In that case, a suit for pre-emption, the plaintiff associated as co-plaintiff with himself another person having no right of pre-emption. The question that arose for consideration was whether by associating with himself a stranger, the pre-emptor, in the circumstances, forfeited his right to pre- empt the property in dispute and whether the High Court was not justified in decreeing the suit in favour of the plaintiff after deleting the name of the stranger from the plaint. It was in the context of these circumstances that their Lordships of the Supreme Court of Pakistan observed that joining of a stranger as co-plaintiff is a procedural defect and can be remedied by striking off the name of such a person under Order I, rule 10 of the C.P.C, at any stage of the proceedings. The party was improperly added and consequently the Court enjoyed the power to strike out his name. The judgment was delivered on the facts of the case before the learned trial Court and is of no assistance to the petitioner. The provision of Order I, rule 10 (2) reads as under :- "Court may strike out or add parties.-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."
A bare reading of the provision of sub-rale (2) of rule 10 of Order I, of the C.P.C. Leaves no room for doubt that the power to strike out the name of any party is exercisable only in relation to persons "improperly joined" as parties. No doubt the power to add or join any party is exercisable by the Court at any time and that power can be exercised without reference to the fulfillment of any pre- condition. However, the Court can assume jurisdiction to strike out the name of any party only if it is shown that the party was "improperly joined". The learned counsel is unable to show that respondent No, 6 was "improperly joined". In fact he was impleaded as a party under the order of the learned Additional District Judge passed on appeal and that order had attained finality. I am convinced that even subsequent loss of interest by respondent No, 6 in the result of the suit would not make him an "improperly joined" party. To my mind on the facts and circumstances of the case the application under Order I, rule 10 of the C.P.C. For striking out the name of respondent No, 6 was not at all maintainable and was rightly rejected by the trial Court.
7. There is no merit in this writ petition which is accordingly dismissed in limine.
(1) PLD 1972 SC 59