SAGHEER AHMED QADRI, J.---Petitioner Mst.Taniya Syed daughter of Syed Aftab Ehsan filed suit for possession through partition of Property No,272-A covering an area of 13 Kanals commonly known as "Plaza Cinema Building, The Mall, Rawalpindi" against respondents Nos.2 to 14; that during the pendency of the suit respondent No,1 Sheikh Imran Jalil moved an application under Order I, Rule 10, C.P.C. Mentioning the facts that petitioner-plaintiff had agreed to sale her total share in the property subject matter of the suit vide agreement to sell dated 10-5-2005 and received Rs,30,00,000 as earnest money out of total consideration of Rs,80,00,000; that she while concealing this fact filed suit for possession through partition; that respondent No,1 being necessary party as petitioner-plaintiff had sold her total share out of the property through agreement to sell, therefore, he be impleaded as one of the defendants in the suit and that if that application for impleadment of respondent No,1 as defendant is not accepted he would suffer an irreparable loss. This application was resisted by the petitioner- plaintiff through written reply wherein it was agitated that she filed suit for partition against the co-sharers-defendants and respondent No,1 was yet to prove his claim and although he neither complied with his part of the agreement nor any decree for specific performance stands in his favour, therefore, he was not a necessary party. At the end it was prayed that this application be dismissed as the same has been filed with mala fide intention.
2. The learned trial court vide order dated 26-7-2006 allowed the application of respondent No,1 whereby he was ordered to be impleaded as one of the defendants. Being dis-satisfied over the decision of learned trial court the petitioner-plaintiff preferred a civil revision which was heard and decided by the learned Additional District Judge whereby the order passed by the learned trial court was upheld vide impugned judgment dated 17-1-2007. Feeling aggrieved, by that orders now the petitioner-plaintiff preferred the writ petition which was admitted to regular hearing on 19-3- 2007 whereby the proceedings before the learned trial court were stayed.
3. Learned counsel for the petitioner-plaintiff contends that the orders of both the courts below are the result of mis-application of law and facts of the case. It was agitated that respondent No,1 claims himself an alleged purchaser of the disputed property through an agreement to sell allegedly entered into between the petitioner-plaintiff and respondent No,1 and it has no bearing on the result of the suit for possession through partition filed by the petitioner-plaintiff; that respondent No,1 is yet to prove his claim before the competent court of law after filing suit for specific performance and at present he has no interest whatsoever in the disputed property subject -matter of the suit; that presence of respondent No,I before the learned trial court is not necessary to decide the lis in effective, proper and lawful manner; that both the courts below did not advert to these aspects. While relying on Messrs Jans Caterers v. The Islamic Republic of Pakistan through the Chairman, Pakistan Western Railway, Lahore and 2 others (PLD 1972 Lahore 169) and Mst. Hamida Fida Hussain Khoja and another v. Mst Anees Iqbal (1986 MLD 443) it was prayed that this writ petition be allowed and the impugned orders passed by the learned trial court upheld by the learned revisional court be set aside.
4. Learned counsel for respondent No,1 on the other hand has vehemently opposed this writ petition on the grounds that both the courts below rightly decided application under Order 1, Rule 10, C.P.C.
In favour of respondent No,1 that he was a necessary party and in order to avoid multifariousness of the litigation respondent No,1 is interested in the property to the extent of share of the petitioner- plaintiff and in case any decree passed it will directly effect his rights, therefore, he was a necessary party, therefore, both the courts below have rightly allowed him to be impleaded as necessary party to the suit. Reliance has been placed on Avari Hotels Limited through Chairman and Chief Executive v. Investment Corporation of Pakistan through Managing Director/Principal Officer and 6 others (2002 CLC 1889), Hussain Mills Ltd. v. Abdul Rashid Khan and 2 others (PLD 1980 Lahore 52) Ghulam Muhammad and 3 others v. Additional District Judge, Multan and 5 others (1999 YLR 469) and Metropolitan Corporation of Lahore through Administrator v. Syed Bhais (Pvt.)
Limited through Managing Director and 5 others (2004 MLD 1395).
5. I have heard the learned counsel for the parties and perused the record.
6. In order to decide this controversy application under Order I, Rule 10, C.P.C. Moved by respondent No,1 to be discussed first. In paras-2 to 4 it is mentioned that:--
(2) That the petitioner is a necessary party to be impleaded as defendant in the suit in that the plaintiff had agreed to sell her total share in property 10.272, Survey No,418 measuring 6527.36 Sq.
Meter situate at Plaza Cinema, Mall Road, Rawalpindi Cantt. Vide agreement to sell dated 10-5- 2005. The plaintiff received from the petitioner Rs,30,00,000 as earnest, money out of total consideration of Rs,8,000,000.
(3) That the plaintiff has concealed the above said noted facts from this Hon'ble Court, with mala fide intention in order to get a, decree in her favour to the determent of the interest of the petitioner.
The intention of the plaintiff is to deprive the petitioner of his right to get the property of the plaintiff transferred. However, the petitioner is going to file a suit for specific performance against the plaintiff very shortly.
(4) That if the petitioner is not allowed to be impleaded as defendant, the suit is likely to be decreed and thus the petitioner would suffer an irreparable loss. The plaintiff cannot seek the partition of the property in dispute as she has received a considerable amount of Rs,3,000,000 from the petitioner."
7. In para-3 of the application it is clearly found mentioned by respondent No,1 that he was intending to file suit for specific performance against the petitioner- plaintiff very shortly. An agreement to sell admittedly does not create any right in favour of a purchaser until and unless either side agree to perform its part of agreement or a decree for' specific performance is passed in his/her favour. If the provision of Order I, Rule 10, C.P.C. Is seen it reads as under:-- Court may strike out or add parties... (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. (underline is mine)
8. The word 'whose presence' before the court may be necessary in order to enable the court effectually and completely to adjudicate upon all questions settled in the suit rather important to define, apply different situations wherein a party seeks permission to be added as plaintiff or defendant. It is now settled that if presence of a party is necessary to enable the court to decide the dispute between the A parties effectually and completely then it can be terms as a necessary party.
9. Here in this case petitioner-plaintiff filed suit for possession through partition against respondents Nos.2 14-defendants/co-sharers in the disputed property and she wanted to get possession of her share in the property after partition. Respondent No,1 in application under Order I, Rule 10, C.P.C. Only claims to the share of the petitioner-plaintiff allegedly purchased from her through an agreement to sell and had also paid the earned money while he has yet to prove this stance, therefore, his presence before the learned trial court in order to decide the matter between the petitioner-plaintiff and respondents Nos.2 to 14/defendants was not necessary rather perhaps it would create certain further complications resulting into multifariousness of the litigation. The judgment cited by the learned counsel for the petitioner-plaintiff further support this view. In another judgment in Muhammad Zubair v. Mrs. Irshad Begum (1999 CLC 1291) wherein it is observed:-- "Impleadment of a person with whom petitioner (plaintiff had further entered into agreement of sale of the same property, was bound to result in multifariousness for which there was no warrant under Order I, Rule 10, C.P.C.---Order directing impleadment of such other person in the suit for specific performance of the petitioner/plaintiff was violative of law and without jurisdiction--- Order of Trial Court was set aside in circumstances."
10. Resultantly, both the courts below have committed material illegality in exercise of their jurisdiction while allowing application under Order I, Rule 10, C.P.C. Moved by respondent No,1 to implead him as one of the defendants in the suit pending before the learned trial court. Therefore, while accepting this writ petition the impugned order/judgment passed by the learned trial court upheld by the learned revisional court are set aside. Application filed by respondent No,1 under Order I, Rule, 10, C.P.C. Is hereby dismissed with no order as to costs.