1. ' MUHAMMAD ALI MAZHAR, J.---By this Order, I will dispose of CMA. No,3611 of 2009 filed by the interveners under Order I, rule 10, C.P.C.
2. ' The plaintiffs have filed this Suit for Declaration, Cancellation and Injunction in which they have prayed as under.
(a) Declaration that the orders dated 7-10-2004, 22-10-2004 and 8-11-2004, issued by the defendant No,2, whereby the Allotment Orders issued to the plaintiffs were cancelled, have been issued without legal and lawful authority and without giving show-cause notice and personal hearing, malafidely and with ulterior motives are void and liable to be cancelled.
(b) The orders dated 7-10-2007, 22-10-2004 and 8-11-2004, issued by the defendant No,2 be cancelled.
(c) Mandatory Injunction be issued against the defendants, directing them to grant lease for 99 years to the plaintiff, in respect of their respective shops / plots.
(d) Permanent Injunction be issued against the defendants by restraining them and any person, agency and authority working under them and on their behalf from dispossessing the plaintiffs from the respective shops/plots, the detail whereof is mentioned in paragraph No,5 of the plaint.
(e) Grant the cost of suit.
(f) To grant any other relief or reliefs which this honourable Court may please deem fit and proper under the circumstances of the case.
3. ' The interveners have filed the instant application in which they have prayed that they may be joined as defendants in the proceedings as necessary party. In the supporting affidavit, it has been stated that the interveners are occupants of space measuring 14x25' of back side of Godown No, 174-3 at W/S Fruit K.M.C. Market, University Road, Karachi and were granted permission for regularization of unauthorized possession on licensee basis on 18-12-1998. When the vegetable market was shifted to Super Highway, the intervener No,1 applied for a shop in lieu of previous possession at vegetable Market, University Road, Karachi, whereupon the Administrator (Agricultural) Market Wing allotted shop Nos. BIB/01, 02, 03 and 04, Block No, BIB, Section Fruit, measuring 480 sq.Ft. Each in New Fruit and Vegetable Market, Super Highway Karachi in favour of the interveners against consideration which was deposited by the interveners. The Administrator had also handed over the physical vacant possession of the above shops along with possession orders. It is also stated that the interveners are in physical possession of the above shops since 14- 9-2004 and running their business. Some persons by using illegal methods tried to dispossess the interveners from their respective shops, hence they filed Suits Nos. 141,142, 143 and 144 of 2008 in the Court of 1st Senior Civil Judge, Malir in respect of the above shops but as there were some errors in the pleadings, therefore the interveners moved application for withdrawal of the suits with permission to file afresh. The interveners were shocked when on 7-4-2009, few unknown persons came to their business place claiming to be the owner of the above premises. And has filed a suit in this Court. The interveners were also shown a copy of the status quo order, hence they have filed the instant application as interveners being necessary party to be impleaded as defendants in the present suit. It is also stated that the interveners have also filed an application under Order 18, C.P.C. As there is a great apprehension that the plaintiffs under the garb of status quo order might forcibly dispossess them from the above premises, which has been obtained by concealing the real facts regarding possession because the plaintiffs never ever remained in possession of the premises and the plaintiffs have given wrong statement in order to get injunction order from this Court.
4. ' Counter-affidavit was filed by plaintiff No,5 in which all allegations were denied. It has been stated that intervener No,1 was tenant in respect of plot/shops premises Nos.1 and 2, Block No,B-1/B, and plots/shops Nos. 3 and 4, block No,B-1/B, new Fruit Market, Super Highway, Karachi. The suits filed by the interveners were withdrawn with permission to file afresh vide order dated 24-04-2009. The alleged possession order/allotment orders are fabricated document. The intervener No,1 has filed an application before the police against the plaintiff No,1 but the defendant No,3 wrote a letter to the incharge police chowki in which it was stated that the interveners are holding fake and fabricated allotments. The intervener No,1 initially in the year 2004-2005 used to pay the rent to the plaintiff No,5 but when he came to know about the cancellation of allotment in favour of the plaintiffs, he stopped payment of rent from April 2005 and managed fake and fabricated allotment with mala fide intention and ulterior motive for undue gain. It is lastly stated that the interveners are neither the necessary party nor pro forma party and even otherwise they have no concern with the present suit and landlord reserve their right for recovery of possession of rented premises through competent Court of law and after withdrawal of their alleged suits, the interveners are not entitled to be impleaded as party in the above suit and the instant with cost.
5. ' I have heard the learned counsel for the parties. The learned counsel for the interveners states that all four interveners applied for permission for regularization of unauthorized possession on license basis, which was granted by the then Director Estate, KMC. He further contended that the interveners were enjoying peaceful possession of the occupied area, thereafter the vegetable market was shifted to Super Highway, Karachi. The interveners applied for the shops in lieu of previous possession. The Administrator (Agricultural) Market Wing allotted shops No,BIB/01,02,03 and 04 Block BIB Section Fruit, New Fruit and Vegetable Market, Super Highway, Karachi, After the payment of requisite fee, the Administrator (Agricultural) Market Wing handed over physical vacant possession along with possession orders to the interveners. It was further argued that since 14th September 2004, the interveners are in physical possession and running- their business peacefully without any hindrance or interference from any corner. The interveners moved an application under. Order XXIII, rule 1, C.P.C. For withdrawal of suits with the prayer to file afresh after necessary amendments. Few persons came to the shops and again claimed the ownership and informed that they have filed Civil Suit No,1095 of 2007 in this Court and also shown status quo orders immediately on knowing this fact the interveners have applied to this Court for impleading them as proper and necessary parties. In order to substantiate whether the interveners are proper and necessary parties, the learned counsel invited my attention to the annexures A-1 to A-24 attached with the application, which include the allotment orders and possession orders of the shops claimed to have been allotted to the interveners by the Market Committee, Karachi. The learned counsel finally argued that since the substantial interest of the interveners is involved in the present matter, therefore, for all intent and purpose the interveners are proper and necessary parties and if they are not added, it will create multiplicity of proceedings.
6. ' In rebuttal to the application the learned counsel for the plaintiff argued that the intervener No,1 was tenant in respect of shops Nos.1 and 2, Block No,B-1/B and shops Nos.3 and 4 Block No, B-1/B, New Fruit Market, Super Highway, Karachi and in order to prove the tenancy the plaintiff has attached the rent receipts with the counter-affidavit as annexure P to P-7. The intervener No,1 used to pay rent till 2005 but he stopped the payment of rent since April, 2005 and managed a fake and fabricated allotment order with mala fide intention. It was further argued that all the allotment orders, possession orders annexed with the application are forged and fabricated documents.
7. Neither the interveners are necessary parties nor proper parties and they have no concern with the present suit. The plaintiff has also attached copies of orders dated 24-4-2009 passed by the learned 1st Senior Civil Judge, MalirKarachi on the applications of the interveners filed in their respective suits under Order XXIII, rule 1, C.P.C.
8. ' No counter-affidavit was filed by the defendants to the application, however the learned counsel appearing for the Market Committee has vehemently opposed the application on the ground that all the documents of allotments and possession orders attached with the application are forged and fabricated and also argued that the present interveners have nothing to do with this Suit and if they are aggrieved, they may agitate their rights by filing separate suites. The learned counsel further argued that not only the allotment letters and or possession letter of the applicant are forged and fabricated but the documents of the plaintiff are also forged and manipulated and issued without any lawful authority, he invited my attention to the impugned cancellation letters which express the same position.
9. ' Mr. Qazi Majid Ali. The learned A.A.-G. Also supported the validity of cancellation orders and argued that all letters were issued during that period when ban was imposed and said letters were issued by unauthorized person without lawful authority and also in contravention of the Provincial Ombudsman decision.
10. ' Before appreciating the pros and cons of the arguments advanced by the learned counsel for the parties, it would be advantageous to look into the nomenclature of the present suit, which has been filed by the plaintiffs against the defendants for declaration, cancellation and injunction. In the present suit, the plaintiffs have impugned the cancellation orders dated 7-10-2004, 22-10-2004 and 8-11-2004 issued by the defendant No,2, whereby the allotment orders issued to the plaintiffs were cancelled as the same have been issued without lawful authority and even without tendering any show-cause notice or personal hearing to the plaintiffs. The plaintiffs have also prayed for the mandatory directions to the defendants to grant them 99 years lease in respect of their shops. I have seen the impugned order passed by the Director General, Agriculture Extension Sindh, Hyderabad Camp Office, Karachi dated 7-10-2004, which says that all the allotments of shops/plots in New Subzi Mandi, Super Highway, Karachi made by ex-Administrator and ex- Secretary, Market Committee, Karachi with effect from 31-7-2004 to date, are hereby cancelled with immediate effect. Another impugned order dated 8-11-2004 shows that in partial modification of the office order dated 7-10-2004 and 22-10-2004, all the allotments of shops/plots in New Sabzi Mandi at Super Highway Karachi made during the tenure of ex-Administrator and Ex-Secretary, Market Committee, Karachi were cancelled, having been issued illegally by unauthorized person during the period of ban and it also contravened the Provincial. Ombudsman decision.
11. ' The nomenclature of the suit and its prayer clauses are clearly demonstrating that in the present controversy the plaintiffs have challenged the cancellation orders issued against their shops with further grievance that the cancellation orders were issued without tendering any show-cause notice and affording an opportunity of personal hearing to the allottees, therefore, the plaintiffs have prayed that the cancellation orders are liable to be set aside. In my view, the impugned office orders have been issued not to any individual by name but these are general orders of cancellation, whereby the allotments of shops were cancelled w,e,f, 31-7-2004 and after partial modification the timeline or cut-off date was deleted from the order and it was made applicable to all shops, which were allotted during the tenure of ex-Administrator and ex-Secretary, Market Committee, however by way of further modification it was also added that the allotments were issued illegally during the period of ban without lawful authority and in contravention of the Provincial Ombudsman's decision. Without touching the issue relating to the authenticity of the interveners allotment letters or possession orders, it is clear that said allotment letters were also issued to the interveners on 14-9-2004 along with the possession orders, therefore, these allotment letters have also come within the ambit and purview of impugned cancellation letters in which the effective date of order was said to be 31-7-2004. Therefore, in my view unless the impugned cancellation letters are set aside under the orders of the Court in case of each individual allottee, the same will apply to all the occupants who had been allotted the shops in the period mentioned in the cancellation orders. By joining the interveners in this case, nothing will be achieved by them and, in fact, no benefit will be accrued to them. Let us assume that if this Court reaches to the conclusion at any point of time that the allotments were cancelled without lawful authority and allotment letters should be restored, nothing will be granted or allowed to the interveners in the capacity of mere defendants. It is in their own interest that instead of pursuing application for becoming party in this suit, they should file their separate legal proceedings to challenge the cancellation orders, which is not against any particular shop but has general impact as a whole on all the allottees of the shops who claim the right and interest in the shops allotted to them in the period specified in the cancellation order. It is also clear from the withdrawal of the earlier suit by the interveners with permission to file a fresh that the interveners are fully cognizant to the fact that they have to take recourse for safeguarding their interest by their separate and independent legal proceedings.
12. 'Persons who ought to have been joined as parties and in whose absence no effective decree can be passed are necessary parties and persons whose presence before the Court is necessary to enable it to effectually and completely adjudicate upon and settle all questions involved in the suit are proper parties. The object of making such persons parties is to prevent needless multiplicity of suits and to protect the interest of parties to the suit or of such persons who are added as proper parties. However, the Court should not be embarrassed by simultaneous investigation of unconnected controversies. In the judgment of honourable Supreme Court reported in Islamic Republic of Pakistan v. Abdul Wali Khan PLD 1975 SC 463 it has been held that proper party is a party whose presence before the Court is necessary to enable the Court to effectually and completely adjudicate upon and settle all questions involved in the proceedings. The term "question involved" include all matter, material to a proper decision of the case but the object of making such persons parties is to prevent multiplicity of proceedings. The person must, therefore, be a person whose interest is likely to be affected even though no relief is claimed against him. This does not, therefore, extend to persons who have no interest which is likely to be affected by the proceedings nor does it embrace persons only generally interested in common with other nor can persons be added as parties so as to set up a new cause of action which does not concern the original parties. Hi another judgment reported in Ghulam Ahmad Chaudhry v. Akbar Hussain and another PLD 2001 SC 615 the honourable Supreme Court has held that wide judicial discretion is vested in the Court to add parties at any stage of the suit in whose absence no effective decree can be passed. Power of adding parties is not a question of initial jurisdiction but of judicial discretion, which has to be exercised having regard to all the facts and circumstances of the case.
13. High Court seized with appeal arising out of the suit is fully competent to add or strike out name of any person to the suit for a just, fair and effectual adjudication of the controversy. The power to add parties is subject to the provisions of Rules 1 and 3 of Order I, C.P.C. Order I, Rule 1, C.P.C.
14. Provides that all persons may be joined in one suit as plaintiffs in whom any right or relief in respect of or arising out of the same act or transaction or series of acts or transactions is alleged to exist, whether jointly, severally, or in the alternative, where if such persons brought separate suits, and common question of law or fact would arise. The aforesaid rule permits the joinder of several persons as co-plaintiffs, provided (i) the right to relief arises out of same act or transaction or series of acts or transactions; and (ii) the matter must be such that if the plaintiffs brought separate suits, any common question of law or fact would arise. Both these conditions must be fulfilled to permit joinder and they are not in alternative. So far as Rule 3 of Order I, C.P.C. Is concerned, it provides that all persons may be joined as defendants against whom any right to relief in respect of or arising out of the same act or transaction or series of acts or transactions is alleged to exist, whether jointly, severally or in the alternative, where, if separate suits were brought against such persons any common question of law or fact would arise. This rule deals with the joinder of the defendants. The conditions enumerated in Rule 3, in order to enable joinder of several persons as co-defendants are analogous to those enumerated in Rule 1 in respect of co-plaintiffs.
15. Only a person against whom a right of relief is claimed or a person whose presence will render the relief complete and effectual can be made a defendant. Keeping in view the scope and ingredients of Order I, rule 3, which provides the joinder of defendants, there is nothing on record to show that the interveners are entitled to be joined as defendants with other defendants for any right to relief in respect of or arising out of the same act or transaction or series of acts or transactions is alleged to exist because the plaintiffs have challenged the cancellation orders, the defendants have seriously opposed the suits and they have taken a stand that the cancellation orders have been rightly issued as the previous Administrator and the Secretary of the Market Committee had no lawful authority or jurisdiction to issue any such allotment letters. Therefore, at this stage, if the interveners are added as defendants, no useful purpose will be achieved and if the plaintiffs in the present suit will succeed, only the cancellation orders passed against their shops will be set aside and the allotment letters of shops will be restored to them but by adding the interveners as defendants nothing will be achieved by them. If documents attached with the application under Order I, rule 10, C.P.C. Are deemed to be authentic and lawful, even then no relief can be allowed to the interveners at the time of final determination of this suit. On repeated insistence of the learned counsel of the interveners that the interveners are in possession, Nazir of this Court was appointed Commissioner on 3rd May 2010 to submit his report regarding the factum of possession. The Nazir had submitted his report on 24-5-2010 and informed this Court that in the same shops he found one Muhammad Javed in possession who had also shown his documents to the Nazir which are also attached with the report. The Nazir enquired the position from the security guards who informed him that they have been posted by the Market Committee. The security guards had also made the possession of Muhammad Javed dubious and informed the Nazir that they were discharging duty since morning and during the course of the day nobody was there and just a moment before arrival of Nazir, the above occupant has reached to show his possession. From the Nazir report one thing is made clear that interveners are not in possession which is a relevant fact for the decision of this application. No objection to this Nazir report was filed by the interveners or the plaintiffs or defendants.
16. 'In my view, I do not think that in absence of interveners, the present suit cannot be decided effectually and the presence of interveners is necessary to decide the present suit of the plaintiffs in which they have simply sought the declaration and cancellation of impugned office orders whereby their allotments were cancelled.
17. ' The application is dismissed, however, the interveners may initiate proper legal proceedings for their redress in accordance with law by filing their separate legal proceedings to safeguard their interest, if any.