1. SYED ZAKIR HUSSAIN, J.---This is an application under Order XIII Rules 1 and 2 read with section 151, C.P.C. Praying for an order directing the Sub-Registrar, defendant No,1 to produce in Court the registered conveyance deed in respect of the suit property; the concerned defendant has filed counter affidavit in which he has denied to have registered the document, i.e, conveyance deed.
2. However, he has produced photocopy of the conveyance deed which has been presented in his office, for and on behalf of the parties, including the plaintiffs and the vendors/owners of the suit property. Further allegations in short, can be explained in these words that the plaintiffs entered into a sale transaction, which, according to him, stood finalized in all respects, excluding registration of the document, i.e, conveyance deed, which was accordingly presented before Sub- Registrar, defendant No,1, and all the parties signed and observed all the formalities required in that behalf, yet the Sub-Registrar, defendant No,1 could not carry out the registration and the plaintiff, therefore, filed a suit with the prayer that they are entitled to get the registration of sale-deed since there is no dispute between the parties and the document went through all the formalities required for the registration, and to get the registered document as well. Simultaneously, in the said prayer, the plaintiffs also sought an injunction directing the defendant No,1 to hand over the registered document referred to above. The damages have also been claimed for the inconvenience, which according to the plaintiff, they have suffered due to the ne igence and non-cooperative attitude of the defendant No, 1 .
3. ' On 22-2-2010, the Court passed the order to the following effect:-- "The defendant No,2 is an official designation and the point is whether such public officer in his official capacity can be sued in terms of Order I, Rule 3, C.P.C. Requires consideration, and will be heard and decided on the next date. The plaintiff is directed to come prepared on this point. The other point which also needs consideration and goes to the root of the case, is as to whether the State and the State Counsel can defend the public officer, the defendants Nos.1 and 2, while the State itself, is not a party to the suit in that regard, the terms of Order XXVII Rule 8, C.P.C. The application of the intervener will be heard on the next date without fail.
4. ' Adjourned to 9-3-2010, as suggested. Suit No,1200 of 2006 may also be sent on the next date along with this suit."
5. ' On 9-3-2010, the Court heard the matter and reserved the same for orders on C.M.As. Nos. 4722 of 2008 and 7279 of 2008. Learned A.A.-G pointed out, during the course of arguments, that the point indicated in the order, dated 22-2-2010, has not properly been addressed by the plaintiff and, therefore, in his view, too, the suit, as framed, is bad in law, for the defendant No,2 is sued in official designation and not in his name. In other words, a public officer cannot be sued in his official capacity, in terms of Order I, Rule 3, C.P.C, as the official designation does neither fall within the category of a natural person nor does it fall within the parameter of a legal person. In this connection, it would not be out of place to mention with same stress that it is the person(s) who may sue and be sued and the aforementioned two categories are the only categories covered by the word 'person' used in law. Besides, the official designation is an office, which is occupied by different persons, 'from time to time, and, therefore, for suiting a public officer for an act, which he has done, in his official capacity, he can only be used in his name and not in his designation.
6. Reliance is placed on the case of Secretary, B & R., Government of West Pakistan and 4 others v.
7. Fazal Ali Khan, reported in PLD 1971 Karachi 625, wherein it has been held as under:-- "(6) It will be seen from sub-rule (2) of the above rule that where no application is made by the Government Pleader under sub-rule (1), "the case shall proceed as in a suit between private parties." This is exactly what has happened in the present suit. The Assistant Government Pleader who, appeared for the appellants in the suit no doubt did conduct the defence on their behalf but he had not made any application such as is provided for under sub-rule (2) of rule 8 cited above.
8. In these circumstances, it would be obvious that he suit proceeded as if it was a suit between private parties. The reported case, therefore, is of no avail to the respondent. Since the Provincial Government was a necessary party to the suit and was not a party to it, the suit must fail.
9. "(9) The second point which learned counsel for the appellants urged is that the suit brought by the respondent against the appellants in the form in which it was brought was not maintainable. On this question learned counsel has contended that the suit was brought against official designations or titles and not against legal or natural persons which is not possible under the law.
10. According to him, the appellants could not be sued with reference to their designations for their official act, unless they were "Corporations sole", whereas they in fact are not. Only legal and natural persons can be sued as defendants in terms of Order I, Rule 3, C.P.C. When no statute provides that a public officer shall be a "Corporation sole" and can be sued in its corporate name, as the case here is, he has to be used under the ordinary law which becomes applicable."
11. In my view, prima facie, the suit appears to be defective, on several counts, including whatever already stated above, with reference to the improper framing of the suit, non-joinder of the other side of the said sale transaction, which being seller, is under legal obligation to transfer the suit property to the plaintiffs through registered sale-deed, who in absence whereof, cannot legally claim title thereof, and hence, necessary and proper party thereto, and to the satisfaction as to the relief of declaration, which appears to be not maintainable, particularly when there is no registered conveyance deed in support thereof and the case is apparently not based on title but on a right to get a title for which, a suit for declaration under section 42 of the Specific Relief Act, is not sustainable. The relief sought in the application is not covered by the provisions thereof. The same, however, is covered by the provisions of Order XI, Rule 14, C.P.C. Which relates to production of document(s) in possession of either party at the request of opposite side, on oath. The same is also purposeless for the plaintiff after the defendant No,1 has submitted the unregistered conveyance deed with the plea already referred to above and thereby the application in question, becomes infructuous being impracticable, in terms of the relief thereof. I must point out that the relief sought for, in the application, if granted, and put to strict compliance, would amount to disposing of the entire suit, which is to be avoided by the Court in the interest of the rights of the parties to the suit.
12. Legally saying, when no prima facie case is made out, inter relief is not open to be granted, and similarly where the main relief shall (indirectly) stand granted, by merely granting a temporary relief, the latter may be refused in the best interest of the parties to the suit.
13. ' In the case of Iftikhar Siddique v. Clifton Cantonment Board and others reported in PLD 1998 Karachi 373 it has been held as under:-- "(14) Another reason for refusing grant of mandatory injunction in the above stated terms is that such order would amount to grant of final relief in the proceedings without trial of the suit which as observed hereinabove requires evidence".
14. ' It is, however, made clear that the application is not under Order XXXIX, Rules 1 and 2, C.P.C. But its prayer as framed, amounts to seeking an interim mandatory injunction, in nature and effect, therefore, the aforementioned citation of law, is applicable there against in point of the analogy attracted to the matter in question.
15. ' Therefore, the application is dismissed.
2. This is an application under Order I, Rule 10(2), C.P.C., praying for joining the applicants as defendants Nos. 4 to 7 in the suit, on the basis of the position, that they have also entered into a sale E agreement of like nature in respect of the suit property with the same owner and that in the Civil Suit No,1121 of 2004 already pending adjudication, the applicant is shown a defendant who has filed his written statement therein denying the said sale agreement of the plaintiff (namely Kamran) thereof, and claiming has own-self, to be the purchaser of the said property, under a sale agreement, and that he has also filed a civil suit No,1200 of 2006 before this Court for specific performance against the owner referred to above, and hence, to avoid further third party interest in the property, and to have resolved the controversy, keeping with all sorts of claims and questions in respect thereof, their joining as defendants in the suit, would be in the interest of justice. The supporting affidavit of this application, does not show a position on facts and law, which could justify joining of the applicant as defendant. Since they do not appear in the light thereof, or otherwise to be necessary or proper party in strict terms of the law relating thereto, and since the applicant has already filed a civil suit in his own right, governed under the alleged contract executed between the parties thereof, and there is no privacy of contract between the parties of this suit, and the applicants, therefore, their joining as party therein, in my view, would obviously be unnecessary and improper in the circumstances. 'Therefore, the application is hereby dismissed accordingly.