' MAQBOOL BAQAR, J.---Through the instant order, propose to dispose of two applications filed by the plaintiff, being C.M.A. No,8142 of 2008 and C.M.A. No,11084 of 2008, one under Order I Rule 10, C.P.C. And the other under Order 6, Rule 17, C.P.C.
2. The brief facts of the plaintiff's case are that (Late) Haji Abdul Rahim, the deceased father of the plaintiff and the defendants, stared his transport business in the year 1949-1950 under the name and style, of "Taj Transport Company". Upon being successful in the business, (Late) Haji Abdul Rahim decided to expend and diversify the .Business by including plaintiff and defendant No,1 in the business as they were ready to join him and thus established another company under the name and style of Mehran Tanker Company. Both these companies, with the passage of time, expanded their business operations and the fleet of Lorries and tankeRs, The companies were run as family concerns; there was nothing in writing to specify the shares held by (Late) Haji Abdul Rahim, the defendant No,1 or the plaintiff. However, the business was run under the supervision and guidance of (Late) Haji Abdul Rahim. The plaintiff besides looking after the.Business also continued his studies. Haji Abdul Rahim died in the year 1984. However, the business and other assets left behind by (Late) Haji Abdul Rahim were not divided and distributed amongst the legal heiRs, The business was carried on as usual by the plaintiff and defendant No, I. In or about 1988, the plaintiff graduated from Medical College and in the meanwhile defendant No,2, the "younger brother of the plaintiff and the defendant No,1 also completed his higher education and as such it was decided to bring him on board as well, he being equal shareholder in the aforesaid two companies. Thereafter, the business of the aforesaid two companies was looked after by the plaintiff and the defendants.
There was no formal division of assets and shares of the aforesaid two companies but there was an understanding between the three brothers that they are equal partners in the said two companies, each having 33.3% share in the said two companies. As per family tradition, the defendant No,1, being elder in the family, became the Managing Director and In-charge of the said two companies and business. With the growth of business, it was decided by the parties herein to establish more companies and thus the following new companies and business have been formed and established from time to time and were managed by all the three brothers having equal shareholding in that companies:--
(I) Delta Water Services (under the proprietorship of plaintiff)," having its office at 119-120, 1st Floor, Clifton Centre, Block-5, Khayaban-e-Roomi, Clifton, Karachi and its another office at HS-4, Truck Stand, Hawksbay Road, Karachi.
(II) Delta Enterprises (under the proprietorship of plaintiff), having its office at 119-120, 1st Floor, Clifton Centre, Block-5, Khayaban-e-Roomi, Clifton, Karachi and its another office at HS-4, Truck Stand, Hawksbay Road, Karachi.
(III) Wahab Enterprises (under the proprietorship of defendant No,2), having its office at 119-120, 1st Floor, Clifton Centre, Block-5, Khayaban-e-Roomi, Clifton, Karachi.
(IV) Delta Water (under the name of an employee namely Idrees), having its office at 119-120, 1st Floor, Clifton Centre, Block-5, Khayaban-e-Roomi, Clifton, Karachi and its another office at HS-4, Truck Stand, Hawksbay Road, Karachi.
(V) Rehman Motor Car Co, (Car Showroom) (under the proprietorship of defendant No,1), having its office at 150-0, Block-2. PECHS, Khalid Bin Walid Road, Karachi.
(VI) Al-Rehman Trucking Station (Petrol Pump) (under the proprietorship of defendant No,1), having its office at National Highway, near Zulfiqarabad Oil Terminal (ZOT), Zulfiqarabad, Karachi.
3. All the three partners divided their work and responsibilities with respect to the aforesaid companies/business ventures. The plaintiff was responsible to diversify, expand and market new transport related products. It was his responsibility to manage and maintain the vehicles, tankers and workshop owned by the companies. The defendant No,1 was responsible for ovorall supervision of the activities of the companies as well as tax related and other business issues, whereas the defendant No,2 controlled all the finances of the companies and mandate of accounts were given to him. As the business activities of the companies streamed lined, the plaintiff went to USA to pursue his higher education between 1993-1996 with the mutual understanding that in his absence, the plaintiff would remain equal partner in the business of the companies and the family wealth.
During this period, the defendant No,1, who was responsible for tax related matters, made changes in the tax returns by adding and removing the partners from time to time without the consent of the plaintiff in order to manage the tax issues? Sometime some family members were added as partners and sometime they were removed, including the plaintiff, his wife, defendant No, 1's wife and their mother. On his return to Pakistan in the year 1996, the plaintiff resumed his participation in the business activities of the aforesaid companies in the manner mentioned above. In, the year 1999-2000, the plaintiff was retired from the partnership of Mehran Tanker Company by defendant No,1 on the ground proposed by the defendants Nos.1 and 2 that it was the requirement of the time for tax purposes but assured the plaintiff that his duties participation and share in the company would remain as before and he would have the same authority and control in the said company, with the power to negotiate, sign contracts and expand the business and his designation as Executive Director of Mehran Tanker Company would also remain the same. The plaintiff agreed with the view of the defendant No,1 being his elder brother and continued to work as such and negotiated and signed several contracts on behalf of the company and also expanded the business of the company keeping the past usual practices. Since the beginning and till date the plaintiff has been involved and represented Mehran Tanker Company as Executive Director and Delta Water Services and Delta Enterprises as proprietor in dealing with various top rated companies and organizations as mentioned in the plaint. From the funds of the said companies, various properties were purchased from time to time with an understanding that each partner viz. Plaintiff and defendants will have equal shares. The 13 properties so purchased in the name of defendant No,1 have been mentioned and described in para 14 of the plaint. Out of the aforesaid properties, the defendants sold properties mentioned at Serial Nos.(i) to (iii), being Plot No, 150-S, Block-2, PECH, Karachi measuring 1000 Sq. Yards and approximately 60 tankers (Tank Lorries), but never gave any account for the same nor share of the plaintiff was paid to him from the sale proceeds of the aforesaid properties. Similarly, eight different properties in the name of defendant No,2, with the above arrangement, are also listed in the aforesaid para of the plaint, out of which the defendants sold properties mentioned at Sr. No,viii, being Plot No,10 (Commercial), Block-4, Clifton, Karachi measuring 544.44 Sq. Yards, but never gave any account for the same nor share of the plaintiff was paid to him from the sale proceeds of the aforesaid property. Description of various bank accounts maintained in respect of the Mehran Tanker Company, Delta Water Services, Delta Enterprises and Delta Water by defendant No,2 are also mentioned in the plaint. It is alleged that the parties formed Delta Water Services under the proprietorship of the plaintiff with the object to transport water to various organisations and to domestic consumeRs, However, the defendants mala fidely and secretly formed Delta Water in the name of their employee namely, Muhammad Idrees and got the business of Delta Water Services transferred to Delta Water without the knowledge of the plaintiff. This was done to syphon out the funds and caused wrongfully loss to the plaintiff. It is claimed, that the properties moveable and immovable were purchased from the common funds of the family business without giving importance to title of the assets on the understanding that all the three brothers are equal partners and with a view to keep unity in the family. Around May, 2007, the plaintiff noticed a change in the attitude of the defendants towards him. In the circumstances, the plaintiff requested the defendant to provide him with the information and details of the properties acquired and sold and also regarding financial affairs and the accounts of the companies but the defendant avoided to comply. The plaintiff has, however, gathered some information regarding the properties and banks accounts, as mentioned in the plaint. The plaintiff was taken aback to find out gross irregularities and mismanagement being committed by the defendant in running the affairs of the companies, misappropriation of funds and the change of names in various documents and tax returns to the disadvantage and loss of the plaintiff. It is further alleged that the defendants who are in collusion with each other and are in control of all the business, bank ccounts and assets of the companies, have refused to disclose to the plaintiff details of properties, business of companies, bank accounts and to render accounts and divide the properties in accordance with the shareholding viz. 33.3% each for plaintiff and defendants.
4. On the above facts, the plaintiff has prayed for a declaration that the plaintiff is the real owner of 33.3% share in the properties, bank accounts and afore-noted companies and that the defendants are only ostensible owners/Benamidars of the plaintiff with respect thereto; and for orders directing the defendants to execute necessary instrument of transfer of the above properties and assets to the extent of 33.3% share of the plaintiff; and directing the Nazir of this Court to divide the properties by metes and bounds if possible and if such division is not possible then to sell the same by holding a restrictive auction between the plaintiff and the defendants and to distribute the sale proceeds amongst the parties in accordance with their share accordingly. The plaintiff has also sought rendition of accounts with respect to the aforesaid properties and bank accounts and to permanently restrain the defendants from alienating, selling, disposing of and/or creating any third party interest in the afore-mentioned properties and companies and also to restrain them from withdrawing any money or issuing any cheque in favour of, any person from the bank accounts mentioned in the plaint.
5. In his written statement, the defendant No,1 stated that Taj Transport Company was established by (Late) Haji Abdul Rahim in partnership with his brother (Late) Muhammad Ismail. The two brothers were equal partners in the business. The business was started in a rented office with very little investment. The nature of the business was that of commission agent and thus no investment in vehicles or real estate was required and it was at a very young age, the defendant No,1 started helping his father in his business. He dropped out of school in Class 9 and worked full time with his father. After the death of Muhammad Ismail in the year 1972, a new partnership deed was executed. The sons of (Late) Muhammad Ismail namely, Abdul Ghaffar and Abdul Sattar as well as defendant No,1 were brought in as partners with (Late) Haji Abdul Rahim on 6-5-1972. The defendant No,1 was made a partner in recognition of his hard work and services to the business as well as his business skills. On the death of Abdul Ghaffar, another son of (Late) Muhammad Ismail was brought in as a partner w,e,f, 19-6-1975. It is further stated that the plaintiff was born on 15-6- 1961. He was a full time student. After qualifying as a doctor in 1988, he worked as a full time House Officer in the Department of Internal Medicine, Civil Hospital, Karachi from May, 1988 to November, 1988. Later he worked as House Officer General/Vascular Surgery in Civil Hospital, Karachi from November, 1988 to May, 1989. From June, 1989 to September, 1991- he was the Resident Medical Officer in Taj Medical Hospital, Karachi. In 1991, he went to USA for further studies and remained there for all practical purposes as a student till 1996. The plaintiff, however, visited Pakistan several time and got married, in Pakistan in the year 1993. After marriage, he left for USA with his wife. The defendant No,1 denied that (Late) Haji Abdul Rahim included the plaintiff and defendant No,1 as partners and stated that the plaintiff was never a part of the business of (Late) Haji Abdul Rahim and that the plaintiff remained a student throughout the life of (Late) Haji Abdul Rahim and never had any role or participation in the business of the Taj Transport Company. The defendant No,1 also denied that the business was expanded or diversified by (Late) Haji Abdul Rahim. It is denied that
(Late) Haji Abdul Rahim started Mehran Tanker Company. It is stated that the business was set up in the name and style of Mehran Tanker Company by defendant No,1 as a partnership between him, his wife Mst. Aisha, Mst. Shamim wife of Muhammad Idrees, Mst. Zainab wife of Abdul Jabbar and Mst. Rabia wife of Muhammad Hanif vide deed of partnership dated 1-12-1983 and that the defendant No,1 was the managing partner. The business of this firm was that of cartage contractors and hardly required any capital investment because it basically operated by finding transporters, who were prepared to carry oil and businessman, who were in need of vehicles to transport oil. The business made money through commission. This business too was started in rented premises. (Late) Haji Abdul Rahim had no share in the partnership and played no role in the operation and control of the business set up as a consequence of the deed of partnership dated 1- 12-1983 (Annexure "WS-1"). It is further averred that the state of health of (Late) Haji Abdul Rahim did not permit him to run or establish any business at that time, as he had been seriously ill since 1980.
He was suffering from kidney failure and was on dialyses. It is stated that at the time of the death of Haji Abdul Rahim, Mehran Tanker Company was in a nascent state having been set up a few months ago. It is denied that the business of Taj Transport Company and that of Mehran Tanker Company was run as family conderns. It is claimed that the business were owned by their respective partners and were run as per arrangement between the partneRs, It is denied that the plaintiff besides continuing studies also looked after any of these businesses. It is stated that at the time of death of (Late) Haji Abdul Rahim, Taj Transport Company did not own any assets. This partnership was dissolved on the death of (Late) Haji Abdul Rahim through deed of dissolution of partnership dated 17-10-1984 (Annexure "WS-2"). However, it was agreed. That Abdul Sattar son of
(Late) Muhammad Ismail shall carry on the business under the name and style of Taj Transport Company as its sole proprietor. The amounts outstanding in favour of Abdul Rehman and Abdul Jabbar, being Rs,63,345.25 and Rs,80,235.16 respectively, were paid to them in installments by Abdul Sattar, whereas the amount outstanding in favour of (Late) Haji Abdul Rahim being Rs,68,057.53 was paid to his legal heirs by Abdul Sattar. It is denied that after the death of (Late)
Haji Abdul Rahim, the business was carried out by the plaintiff and defendant No,1. It is further averred that neither (Late) Haji Abdul. Rahim was a partner in the business of Mehran Tanker Company nor did he have any concern therewith. It is claimed that since the plaintiff wanted to proceed USA for his further studies and there was a need to show that he had means to support himself, it was in order to meet this requirement that the defendant No,2, being the elder brother of the plaintiff, agreed to let him appear as partner in Mehran Tanker Company. A new deed of partnership was, therefore, prepared on 1-7-1991 with defendant No,1, his wife, the plaintiff, the defendant No,2, Ms. Rubina daughter of Malik Mehar Khan and Mst. Nasiban Widow of (Late) Haji Abdul Rahim as partneRs, At the same time Mst. Shamim, Mst. Raba and Mst. Zainab retired from the partnership. It is stated that Ms. Rubina was a student of Dow Medical College and there was an understanding between her and the plaintiff. They later married. As they were planning to go to USA as husband and wife, Ms. Rubina was brought in as a partner to show that she was a person of means. It is further claimed that even after the deed of 1-7-1991 was executed, defendant No,1 continued to be the managing partner of the firm and remained responsible to deal with the business, as stipulated in the deed itself. In the year 1991, the plaintiff applied for USA visa and left for USA to take his qualifying examinations in order to work and study further. He continued to visit Pakistan and in 1993 after marrying with Ms. Rubina again let for USA from where he eventually returned in 1996., On 30-6-1998, the partnership was dissolved by a deed of 30-6-1998 (Annexure "WS-4"). All the partners received their respective shares. The plaintiff and his wife being benamies of defendant No,1 were never entitled to any money but received the same in their capacity as benamies for and on behalf of defendant No, 1 . As per the above deed of dissolution, defendant No,1 was allowed to continue the business in the name and style of Mehran Tanker Company either in partnership with others or as a proprietor, in his discretion. "Delta Water Services" was established by defendant No,1, as he was the real owner, and the plaintiff was only a benami. The money received by the plaintiff and his wife as benamies of this defendant on the dissolution of partnership, through Annexure WS-4, was invested in the business of Delta Water Services. The same is true for Delta Enterprises. It is stated that neither the plaintiff nor the defendant No,1 had any share or concern or interest in. Wahab Enterprises, which is a sole proprietorship of defendant No,2 and is operated by him and that defendant No,1 has no concern with Delta Water, which is owned and operated by Muhammad Idrees. It is denied that Muhammad ldrees is an employee of defendant No,l. It is claimed that Rehman Motor Car Co. Is sole proprietorship concern of defendant No,1, which was, set up and started by him in October, 2001 and that AIRehman Trucking Station is also a sole proprietorship concern set up by defendant No,1 in the year 2003. It is stated that the plaintiff, even after dissolution of the partnership may have signed a few documents of Mehran Tanker Company but that was only on account of the fact that defendant No,1 placed trust in him as he was his younger brother and also because the plaintiff was the benami for defendant No,
1. It is claimed that the properties in the name of defendant No,1 were purchased from his own money and no one else had any share in or claim upon the same and that the property listed at Serial No,
(i) is not owned by defendant No,l. The properties at Serial No,(ii) were sold by him vide Annexures "WS-7" to "WS-9", the defendant No,1 also denied that he ever owned 60 tankers and stated that the property listed at Serial No,(iv) was sold by defendant No, 1 on 3-8-2005 vide Annexures "WS-10".
The property listed at Serial No,(v) is not owned by defendant No,l. The property listed at Serial No,
(ix) actually measuring 3 acres and 15 ghuntas and was sold on 24-5=2005 through Annexures "WS-11", whereas the properties listed at Serial No,(xii) and (xiii) are not owned by defendant No,1 and further that the properties which the defendant No,1 owned have been purchased by him from his money and the plaintiff has no title, interest or claim in the same. It is denied that the defendant No,1 transferred the business of Delta Water Services or was responsible for siphoning of any funds or caused any loss to the plaintiff. It is claimed that the dispute arose between the parties when the plaintiff attempted to sell the properties for which he was a benami of defendant No,1 and had, therefore, no right to sell the same. The details of 13 different properties in that regard are mentioned in the written statement.
6. The contents of the written statement, filed by defendant No,2 are also to the same effect as are the contents of the written statement of defendant No,
1. The defendant No,2 has also stated that though (Late) Haji Abdul Rahim admittedly expired in 1984, however, till date none of the remaining surviving legal- heirs including the plaintiff ever objected to the division and distribution of the assets of the deceased despite lapse of 23 yeaRs, As regards the properties owned by him, the defendant No,2 has denied that the same were purchased from the funds of the companies. It is stated that the deed of partnership .In respect of Mehran Tanker Company was dissolved a year after the return of the plaintiff to Pakistan vide deed of dissolution dated 30-6-1998 with the express consent of the plaintiff; who from that date till the filing of the instant suit had no complaint against the defendant No,2.
7. Through C.M.A. No,8142 of 2008, the plaintiff has sought impleadment of one Muhammad Idrees as defendant No,3, while through C.M.A. No,11084 of 2008, the plaintiff has sought permission to amend the plaint.
8. I have heard the learned counsel for the plaintiff, the defendant No, T, and the proposed defendant No,3, perused the record and the case-law cited by the counsel for the parties.
9. According to the plaintiff, the family business was started by the father of the parties in the year 1949-1950 under the name and style of Taj. Transport Company and by the time the plaintiff and defendant No,1 became able and ready to join, they were inducted into the business.
10. However, the defendant No,1 denies the plaintiff's 'claim in that regard. According to defendant No,1, Taj Transport Company was established by (Late) Haji Abdul Rahim in partnership with his brother (Late) Muhammad Ismail with equal share and that the business- was started in a rented office with a very little investment. The business being a commission agency, required, no investment in vehicles or real estate. According to him, he started helping his father's business at a very young age and dropped out of school in Class 9 and worked full time with his father. After the death of Muhammad Ismail in the year 1972, a new partnership deed was executed by induction of two sons of (Late) Muhammad Ismail namely, Abdul Ghaffar and Abdul Sattar in his place, as well as defendant No,1 with (Late) Haji Abdul Rahim on 6-51972. The defendant No,"1 has claimed that he was made a partner in recognition of his hard work and services to the business as well as his business skills. On the death of Abdul Ghaffar, another son of (Late) Muhammad Ismail was brought in as a partner w,e,f, 19-6-1975. This partnership was dissolved on the death .Of Haji Abdul Rahim through deed of dissolution of partnership dated 17-10-1984 (Annexure. "WS-2"). However, it was agreed that Abdul Sattar son of (Late) Muhammad Ismail shall carry on business under the name and style of Taj Transport Company, as its sole proprietor. The amounts outstanding in favour of Abdul Rehman and Abdul Jabbar of Rs,63,345.25 and Rs,80,235.16 respectively, were paid to them in installments by Abdul Sattar, whereas the amount outstanding in favour of (Late) Haji Abdul Rahim being Rs,68,057.53 was paid to his legal heirs by Abdul Sattar. It is further stated that the plaintiff was born on 15-6-1961. He was a full time student. After qualifying as a doctor in 1988, he worked as a doctor in various hospitals upto 1991, details of the plaintiff's employment with various hospitals from time to time throughout this period have been mentioned in the written statement. It is further alleged that in 1991 the plaintiff went to USA for further studies and continued to live there as a student till 1996. The plaintiff, however, visited Pakistan several times and got married in Pakistan in the year 1993 and that after marriage he left for USA with his wife. The defendant No,1 denies that (Late) Haji Abdul Rahim included the plaintiff and defendant No,1 as partners and states that the plaintiff was never a part of the business of (Late) Haji Abdul Rahim and that he remained a student throughout the life time of (Late) Haji Abdul Rahim.
11. It has further been claimed by the plaintiff that (Late) Haji Abdul Rahim upon being successful, decided to expand and diversify the business and established another company under the name and style of Mehran Tanker Company. Both, Taj Transport Company and Mehran Tanker Company expanded their business operation and the fleet of Lorries and tankeRs, Both the companies were run as family concerns, as there was nothing in writing to specify the share held by (Late) Haji Abdul Rahim, the defendant No,1 or the plaintiff. However, the business was run under the supervision and guidance of (Late) Haji Abdul Rahim. The plaintiff besides looking after the business also continued his studies. Haji Abdul Rahim died in the year 1984. However, the business and assets left behind by the deceased were not divided and distributed amongst the legal heiRs, The business was carried out as usual by the plaintiff and defendant No, 1.
12. The defendant No,1, on the other hand, stated that at the time of death of Haji, Abdul Rehman, Taj Transport Company did not own any assets. The defendant No,1 also denied that the business was expanded or diversified by (Late) Haji Abdul Rahim and/or that the deceased established Mehran Tanker Company. On the contrary it is claimed that the Mehran Tanker Company was set up by defendant No,1 as a partnership between him, his wife Mst. Aisha, Mst. Shamim wife of Muhammad Idrees, Mst.. Zainab wife of Muhammad Hanif vide deed of partnership dated 1-12-1983 with defendant No,1 as its managing partner. The business of the firm was that of cartage contractors and hardly required any capital investment. It basically operated by finding transporters, who had, to carry oil and were in need of vehicles to transport oil. The business made money through commission. This business too was started in rented premises. It is further Stated that (Late) Haji Abdul Rahim had no share in the partnership and played role in the operation and control of the said business and that-the state of health of (Late) Haji Abdul Rahim, did not permit him to run or establish any business at that time, as he had been seriously ill since 1980, was suffering from kidney failure and was on dialyses. It is further stated that at the time of death of Haji Abdul Rahim, Mehran Tanker Company was in a nascent state having been set up a few months ago. It is denied that the plaintiff besides continuing studies also looked after any of these businesses. It is claimed that since the plaintiff wanted proceed USA for his further studies and there was a need to show that he had means to support himself, it was in order to meet this requirement that the defendant No,1 being the elder brother of the plaintiff agreed to let him appear as partner in Mehran Tanker Company. A new deed of partnership was, therefore, prepared on 1-7-1991 with defendant No,1, his wife, the plaintiff, the defendant No,2, Ms. Rubina daughter of Malik Mehar Khan and Mst. Nasiban Widow of (Late) Haji Abdul Rahim as partneRs, At the same time Mst. Shamim, Mst. Rabia and Mst. Zainab retired from the partnership. It is claimed that Ms. Rubina was a student of Dow Medical College and there was an understanding between her and the plaintiff. They later married. As they were planning to go to USA as husband and wife, Ms. Rubina was brought in as a partner to show that she was a person of means. It is further claimed that even after the deed of 1-7-1991 the defendant No,1 continued to be a managing partner of the firm and remained responsible to deal with the business, as stipulated in the deed itself. This partnership was dissolved through deed of dissolution dated 30-6-1998 (Annexure "WS-4"). All the partners received their respective shares. The plaintiff and his wife being benamies of defendant No,1 were never entitled to any money but received the same in their capacity as benamies for and on behalf of defendant No,
1. As per the above deed of dissolution, the plaintiff was allowed to continue the business in the name and style of Mehran Tanker Company either in partnership with others or as a proprietor, in his discre tion.
13. The plaintiff has further claimed that with the growth of business under the name and style of Taj Transport Company and Mehran Tanker Company, it was decided by the parties herein to establish more companies and thus the new companies and business have been formed and established from time to time and were managed by all the three brothers having equal shareholding in the companies namely, Delta Water Services, Delta Enterprises, Wahab Enterprises, Delta Water Services; Rehman Motor Car Co. And Al-Rehman Trucking Station. All the three partners divided their work and responsibilities with respect to the aforesaid companies/ business ventures as specified in the plaint. The plaintiff further claimed that as the business activities of the companies streamlined, the plaintiff went to USA to pursue his higher education between 1993-1996 with the mutual understanding that in his absence, the plaintiff would remain equal partner in the business of the companies and the family wealth, and that during this period the defendant No,1, who was responsible for tax related matters, in order to manage the tax issues, made changes in the tax returns by adding and removing the partners from time to time without the consent of the plaintiff. Sometime some family members were added as partners and sometime they were removed, including the plaintiff, his wife, defendant No, 1's wife and their mother. On his return to Pakistan in the year 1996, the plaintiff resumed his participation in the business activities of the aforesaid companies as usual. In the year 1999-2000, the plaintiff was retired from the partnership of Mehran Tanker Company by defendant No,1 on the ground proposed by the defendants Nos.1 and 2 that it was the requirement of the time for tax purposes but assured the plaintiff that his duties, participation and share in the companies would remain the same as before and he would have the same authority and control in the said companies with the power to negotiate, sign contracts and expand the business, and his designation as Executive Director of Mehran Tanker Company would also remain as before. Since the plaintiff had faith in defendant No,1, defendant No,1 being his elder brother, he continued to work as such and negotiated and signed many contracts on behalf of the company as per past practice. The plaintiff further claimed that since the beginning and till date, the plaintiff has been involved in and represented Mehran Tanker Company as Executive Director, and Delta Water Services and Delta Enterprises as the sole proprietor in dealing with various top rated companies and organisations as mentioned in the plaint.
14. On the other hand, the defendant No,1 claims that Delta Water Services was established by defendant No,1, as he was the real owner and the plaintiff was only a benami. The money received by the plaintiff and his wife as benamies of this defendant on the dissolution of partnership through Annexure WS-4 was invested in the business of Delta Water Services and that the same is true for Delta Enterprises. It is claimed that neither the plaintiff nor the defendant No,1 had any share or , concern or interest in Wahab Enterprises, which is a sole proprietorship of defendant No,2 and is operated by him and further that defendant No,1 has no concern with Delta Water, which is owned and operated by Muhammad Idrees. The defendant No,1 also denied that Muhammad Idrees is his employee. He claimed that Rehman Motor Car Co. Is his proprietorship concern, which was set up and started by him in October, 2001 and that Al-Rehman Trucking. Station is also a sole proprietorship concern set up by him in the year 2003. It is stated that the plaintiff may have signed a few documents in respect of Mehran Tanker Company even after dissolution of the partnership but that was only on account of the fact that defendant No,1 placed trust and confidence in the plaintiff, as he was his younger brother and also the benami for him.
15. The plaintiff has further alleged that the parties formed Delta Water Services under the proprietorship of the plaintiff for transportation of water to various organisations and to domestic consumers, however, the defendants mala fidely and secretly formed Delta Water in the name of their employee Muhammad Idrees and without the knowledge of the plaintiff got the business of Delta Water Services transferred to Delta Water.
16. The plaintiff has further alleged that from the funds of the aforesaid companies 13 different properties were purchased in the name of defendants Nos.1 and 8 different properties were so purchased in the name of defendant No,2. Out of the aforesaid properties the defendants sold properties bearing Plot No, 150-Block No,2, PECHS, Karachi measuring 1000 Sq. Yards bought in the name of defendant No,1 and also sold Plot No,10 (Commercial), Block-4, Clifton, Karachi measuring 544.44 Sq. Yards purchased in the name of defendant No,2, and about 60 tankers, but the defendants never gave any account for the same nor paid the plaintiff's share out of the proceeds.
Description of various banks accounts maintained by defendant No,1 in 'respect of the Mehran Tanker. Company, Delta Water Services, Delta Enterprises and Delta Water by defendant No,2 are also mentioned in the plaint. It is claimed that the above properties were purchased from the common funds of the family business without giving importance to title of assets on the understanding that all the three brothers are equal partners and with a view to keep unity in the family.
17. The defendant No,1 in reply to the above, in his written statement claimed that the properties in his name were purchased with his own money and none had any share in or claim upon the same.
He stated that the property listed at Serial No,(i) is not owned by him. The properties at Serial No,(ii) were sold by him vide Annexures "WS-7" to "WS-9". He denied that the plaintiff ever owned 60 tankers and stated that the property listed at Sr. No,(iv) was sold by defendant No,1 on 3-8-2005 vide Annexures "WS-10". The, property listed at Serial No,(v) is not owned by defendant No,1, the property listed at Serial No,(ix) actually measuring 3 acres and 15 ghuntas and was sold on 24-5- 2005 through Annexures "WS-11", whereas the 'properties listed at Sr. No,(xii) and (xiii) are not owned by defendant No, 1 . It is denied that the defendant No,1 transferred the business of Delta Water Services or was responsible for siphoning of any funds or caused any loss to the plaintiff. He stated that the dispute arose between the parties when the plaintiff attempted to sell the properties, for which he was a benami for defendant No,1 and had, therefore, no right to sell the same. The details of the 13 different properties in that regard are mentioned in the written statement.
18. The defendant No,2 in his written statement stated that though (Late) Haji Abdul Rahim admittedly expired in 1984, however, till date none of the remaining surviving legal heirs including the plaintiff ever objected to the division and distribution of the assets of the deceased despite lapse of 23 yeaRs, He denied that the properties were purchased from the funds of the companies.
He claimed that the partnership in respect of Mehran Tanker Company was dissolved a year after the return of the plaintiff to Pakistan, vide deed of dissolution dated 30-6-1998, with the plaintiff's expressed consent, who from that date till the filing of the instant suit had no complaint against him.
19. The plaintiff through C.M.A. No,8142 of 2008, has sought impleadment of one. Muhammad Idrees as defendant No,3. It is stated that Muhammad Idrees is in the employment of the defendant and has been planted by defendant No,1 as the ostensible owner of Delta Water, which was set up by defendant No,1, whereby he illegally and mala fidely diverted the plaintiff's business. It is further alleged that a plot of land bearing No 150-0 measuring 1000 Sq. Yards, situated in Block No,2, PECHS, Karachi and a portion of Sikni land measuring 3 acres and 35 ghuntas, out of the entire land of 6 acres and 11 ghuntas of Survey No,87, situated in Deh Joreiji, Bin Qasim Town, Karachi were purchased by defendant No,1 in or about July, 2004 out of the income generated from the business of Mehran Tanker Company and that defendant No,1 have 33.3% share in the said properties, and that through Annexures "WS-10" and "WS-11" filed by defendant No,1 along with his written statement, it has transpired that through shame and collusive transaction, the said two properties have been shown to have been purchased by the proposed Intervenor Muhammad Idrees. It is further alleged that the aforesaid two instruments are fake and fictitious documents, being collusive and without consideration and further that Muhammad Idrees has no independent source of income (except through the defendants) and he never had the money to pay the amount as mentioned in the two conveyance deeds. It is submitted that in order to ascertain and determine the true character and nature of aforesaid two transactions by this Court, it is necessary that Muhammad Idrees be implead as a defendant in the above case.
20. In his counter affidavit, Muhammad idrees, the proposed defendant, has refuted the above allegations. He submitted that the' sale deeds in question were executed on 24-6-2005 and 3-8- 2005, and that he has purchased the properties with due diligence and without knowledge or information of any purported right or interest of the plaintiff, and further that a notice inviting objections in respect of the purchase of a Plot No, 150-0 measuring 1000 Sq. Yards, situated in Block No,2 PECHS, Karachi was published in the daily "Jassarat" of 30-9-2005, but none raised any objection. Consequently, the said property was sold by him for valuable consideration on 28-8- 2008, and now is not owned by him. He denied that he had no independent source of income and did not have the amount of sale consideration mentioned in the two sale deeds. He annexed income tax returns for the years 2004 to 2007 and certain bank statements of his accounts with Allied Bank Ltd., KASB Bank Ltd., Arif Habib Bank Ltd., NIB Bank Ltd.. And Soneri Bank Ltd., and Claimed that the same established his independent source of income and his ability to pay the sale consideration amount and claimed that the above statements of accounts show that since the year 2004 till the date of filing of the counter affidavit, the approximate amount of his transactions are around Rs,188.5 Million. He also annexed copies of the pay orders through which the sale consideration amount was paid to defendant No,
1. He further claimed that he has been an integral part of his family business since. 1972, which business was established by- his father in the year 1952 and that he established his own proprietary concern-in the year 1974 under the name and style of ldrees Steel Works, which has over the years supplied steel fabrication works to large renowned organizations, such as Pakistan Steel Mills and the Oil and Gas Development Corporation, and that in 1982 he established another company under the name of S.I. Construction Company and further that in the year 2003 he and his son Muhammad Knees established a third company under the name of Anees Enterprises, and in the year 2004 and 2005 Anees Enterprises embarked on large projects with M.E.S. And CDGK, and paid an amount of Rs,1 Million as income tax.
In 2003 he established a fourth company under the name of S. Wan Ahmed Shah and that Delta Water was established by him as a sole proprietorship concern. He further claimed that between the years 2004 and 2008, he has paid amounts between Rs,1.4 Million and Rs,20 Million yearly, as income tax for the revenue generated from Delta Water. He further claimed that he is a bona fide purchaser of the subject properties for lawful consideration and without any notice of the alleged claim.
21. The plaintiff in his affidavit-in-rejoinder submitted that throughout the period of his partnership in Mehran Tanker Company, Muhammad Idrees has acted as an employee of defendant No,1 and has from time to time carried out jobs and duties assigned to him by defendant No,1, and that even now he is posted by defendant No,1 in the show room of Rehman Motor Car Co. At 150 S Block-2, PECH,- Karachi, and that at least since 1993 Muhammad Idrees is residing in a small house in Ishaqabad (which is a semi katcha abadi) and could not muster funds to purchase even an apartment, in any locality and further that Muhammad Idrees himself has declared the worth of that house as few thousands rupees. The plaintiff denied that Muhammad Idrees did not know about plaintiff's rights and interests in the subject properties, as he had been hands in gloves with defendant No,1 right from 1983, and he master minded the deed of partnership mala fidely, wherein his wife, was shown as a partner of Mehran Tanker Company. He denied that Muhammad Idrees has sold away the property as alleged by him).
22. Through C.M.A. No,11084 of 2008, the plaintiff has sought permission under. Order VI Rule 17 C.P.C.
To amend the plaint, which incorporating the following paragraphs:-- "(1) From the perusal of the written statement filed by defendant No,1, in the above suit, it has transpired that he has collusively illegally and fraudulently but ostensibly sold two propertieS, one bearing No,150-0, situated in Block No,2, PECH Society, Karachi, as well as Sikni land measuring 3 acres and 35 ghuntas out of entire land of 6 acres and 11 ghuntas of Survey No,87, situated in Deh Joreiji, Bin Qasim Town, Karachi allegedly in favour of defendant No,3 (Muhammad Idrees) through two purposed sale deeds which are fake and collusive documents and, as such, are liable to be cancelled / annulled.
(2) It is respectfully submitted that defendant No,3, being an employee of defendant No,1, did not possess the requisite funds of crore of rupees to pay for the price shown in the said sale deeds of the said properties. It is relevant to point out that the financial potency and capability of defendant No,3 is abundantly manifested by the fact that, since before 1983 till this date, he is living in a small house in a semi katcha abadi, and he could not muster sufficient funds even to purchase an apartment in a locality, much less in any post locality. It is further submitted that, since Delta Water is in fact the business-concern of defendant No,1, the income from its business is exclusively utilized by defendant No,1 although by fraud and manipulation it is wrongly shown as that of defendant No,3, before the Income Tax Department.
And also by adding the following prayer clauses:-- It be declared that the purported conveyance deed dated 24-52005 of 3 acres and 35 ghuntas out of Survey No,87 in Deh Joreiji, Bin Qasim Town, Karachi and purported sale deed dated 3-8-2005 pertaining to Property No, 150-0 measuring 1000 Sq. Yards, situated in Block No,2, PECH Society.
Karachi is illegal, collusive, fake and fraudulent documents and they are liable to be cancelled and annulled.
23. However, at this stage, I would refrain from making comments on the diverse claims of the parties in respect of their interest/claim in the various business concerns involved in the suit, as it would be appropriate to deal with the same after recording of evidence. It is, however, to be noted that the plaintiff has neither explained as to how the two properties purchased by Muhammad Idrees, the proposed defendant, were in fact purchased by defendant No,1, the seller, from the funds of 'Mehran Tanker Company or out of the income generated through the said business, and with an understanding between the three brothers that all three of them shall have 33.3% share each in the said properties nor has the plaintiff filed a single document in support of his above claim. He has also not disclosed any basis and/or justification of his belief.
24. The plaintiff has also not given any details of the employment/ engagement of Muhammad Idrees and/or his relationship with the defendant No,1, as alleged by him, except for. The fact that at one stage Muhammad Idrees's wife was inducted as a partner in Mehran Tanker Company, nor has he filed any documents/record in support of his such claim.
25. Out of the two properties in question, the first being property bearing Plot No,150-0, measuring 1000 Sq. Yards situated in Block No,-2 PECHS, Karachi and the second being a plot measuring 3 acres and 35 ghuntas in Survey No,87, situated in Deh Joreiji, Bin Qasim Town, Karachi, were purchased by Muhammad Idrees from defendant No,1 on 3-8-2005, through sale deed of the instant date, being Annexures WS-9 and WS-10. A public notice inviting objections to the proposed transfer of the first property, in favour of Muhammad Idrees in the records of PECHS, was published in the daily "Jassarat" of 30-9-2005. It is difficult to believe that the being the most educated of the three brothers, who claims to have remained deeply involved in the business affairs of the subject business concerns (either as an equal partner or as a proprietor and in case of Mehran Tanker Company as the Executive Director, with an authority .To deal and negotiate with its clients), remained unaware of the aforesaid sales and-transfers of, the two properties and especially in respect of the PECHS property regarding which a public notice ,was also published, and that he came to know of the said sale/transaction only through the written statement filed by the, defendant No,1, so as to compute the period of limitation from such date i,e, the date of filing of the written statement. Muhammad Idrees in his counter affidavit to C.M.A. No,8142/2008 has claimed that since 1972, he has been an integral part of his family business which was established in the year 1952 by his father and that in 1974, he established "Idrees Steel Works", as his sole proprietary, concern, which has over the years supplied steel fabrication works to renowned organizations such as Pakistan Steel. Mills and Oil and Gas Development' Corporation, and further that in 1982 he established another company under the name of SI Construction Company and that in the year 2003 he, along with his son Muhammad Anees, established a third company under the name and style of Anees Enterprises, which company undertook large projects for M.E.S. And CDGK, and paid an amount of Rs,1 Million as income tax. He further claimed that a fourth company was established by him under the name and style of S. Irian Ahmed Shah in the year 2003 and in 2004 he established yet another business as his sole proprietary concern under the name of Delta Water.
He claimed that during the period from 2004 till 2008, he has paid between Rs,1.4 Million and 2.0 Million yearly as.
Income tax for revenue generated from Delta Water. In support of his claim, Muhammad Idrees has annexed photocopies of several documents, including NTN Certificate, Income Tax records and statements of five different banks, which according to him, show that since the year 2004 and till the date of filing of the counter affidavit an approximate amount of his transactions was Rs,188.5 Million. Various other documents have also been annexed in support of his financial worth and business credibility by Muhammad Idrees. In order to show that the sale consideration amount in respect of the above two properties were paid by him to defendant No,1 out of his own funds, Muhammad Idrees has also annexed photocopies of five pay ordeRs,
26. Although in his affidavit-in-rejoinder, the plaintiff has averred that the sale deeds in question are collusive and fictitious documents, he has, however, not challenged the veracity of the other documents annexed by Muhammad Idrees along with his counter affidavit, as noted above, nor has he refuted his claim in respect of his various businesses, as contained in the counter affidavit, except only in respect of Delta Water, regarding which he reiterated his claim that the same was set up by defendant No,1 with Muhammad Idrees as a benami but neither has he given any details nor annexed a single document in that regard. Therefore, the plaintiff cannot successfully plead that Muhammad Idrees had no means to purchase the properties in question. The plaintiff has also not explained as to how and by what means Muhammad Idrees was, supposed to have been aware of the plaintiff's purported right, title and claim over the two properties. Here it may be relevant to note that the two properties in question at the time the same were purchased by Muhammad Idrees, were in the exclusive name of defendant No,1 and the relevant sale deeds were in the name of the said defendant only. In any event, the relief proposed to be sought against Muhammad Idrees by impleading him as a defendant and through the proposed amendments, would change the nature of the suit, as an additional prayer would then be for a declaration that the sale deeds in question are illegal, collusive, fake and fraudulent and for cancellation thereof, which is not permissible under the law. The.Presence/impleadment of Muhammad Idrees is certainly not required to adjudicate the dispute between the parties to the suit and/or to determine the question involved in the suit, effectively and finally. Furthermore the plaintiff, in the event, he succeeds in establishing his claim of 33.3% share in the properties in question, can well be compensated by payment of the value of such share to him
27. The provisions of Order I, Rule 10(2), C.P.C. Authorizes the Court to order for adding the name of a party either as plaintiff or defendant in the suit,' who ought to have been joined in the proceedings or whose presence is felt by the Court as necessary to settle and adjudicate upon all questions involved in the suit, completely and Effectually. Under sub-rule (2) the Courts' power to add parties to the suit can be exercised in two cases. Firstly, the Court may order joinder of a party in a suit either as a defendant or plaintiff, if it reaches the conclusion that a party who ought to have been joined as a party in the proceedings is not before it. The other case is where the Court finds that the presence of that party will facilitate the Court to decide effectually and finally all questions arising in the suit. In the first case, the joinder is of a necessary party to the suit, while in the other case the party added to the proceedings is only a proper party. Indeed the primary object of impleading a proper party in the suit is to avoid multiplicity of legal proceedings and to determine effectually and finally all questions involved in the proceedings. The term "questions involved" includes all matters, material to a proper decision of the case but the object of making such persons parties is to prevent multiplicity of proceedings and the person must, therefore, be a person whose interest is likely to' be affected even though no relief is claimed against him. It does not therefore; extend to persons who have no interest which is likely to be affected by the proceedings like in present, as it stands today. This is why the Court is called upon not to drag any parties in the array of the suit to suffer the rigours of a trial unnecessarily. No party can be allowed to argue that as the Court has a wide discretion in the matter of the, joinder of parties, any person who is neither a necessary nor a proper party may be joined at the convenience of the applicant. It is in this context that in exercising their power under this rule, Courts ought to see that they do not load the record with the parties, shown to have no interest in the suit and that the trial of the suit is not embarrassed by the simultaneous investigation of totally unconnected controversies.
28. In the case of MUHAMMAD IQBAL v. MUHAMMAD RAMZAN (PLD 1987 AZAD J&K, 170), it has been held that the law confers ample power upon the Court to permit amendments of pleadings of parties, whereafter it is deemed expedient to do so to decided the real point in controversy. This authority, however, is restricted when the proposed amendment is likely to change the character of cause of action. Moreover, it is enjoined upon the Court to ensure that the amendment shall not harm opposite party by destroying a right already accrued to it by omission to include the proposed claim or ground of attack in the original suit. Leave to amendment may be granted if amendment can be made without injustice to the other side. The amendment must not injure the other party, so that he cannot be compensated in cost. Thus where a period of limitation has commenced since the accrual of 'a particular case, an amendment will not be allowed, which has the effect of adding such a cause of action notwithstanding the fact that the limitation period in relation to it has not expired when the writ in the action was issued.
29. Ordinarily an amendment necessary for the decision of point at issue is permissible at any stage, but liberal exercise of discretion is checked by the consideration of likely prejudice causing harm to other side, particularly when other party suffers loss of valuable right already accrued in his favour, on account of the shape in which the pleadings have been framed on expiry of limitation.
30. In the case of K. MARACAIR and 3 others v. ABDUL GHAFOOR and 2 others (PLD 1995 Kar. 256) it has been held that object of Order I Rule 2 C.P.C. Is to ensure that all necessary and proper parties were before the Court for proper adjudication of dispute raised therein and paramount consideration for impleading proper and necessary parties was to avoid multiplicity of suits, but it would not follow that avoidance of suits was to be the only consideration which would weigh with the Court while dealing with question of impleading of parties ' and that the Court while deciding such question would be competent to refuse exercise of jurisdiction in favour of impleading applicant as plaintiff if any factor was, found that could lead to inconvenience to any party, or anomaly or could introduce a new cause of action, or change or enlarge the scope of the suit.
31. In the case of Mst. SANAULLAH KHAN v. LAHORE MUNICIPAL CORPORATION, LAHORE (1979 CLC 891), it has been held that the presence of the party sought to be pleaded must be necessary to enable the Court to effectually and completely adjudicate upon and settle all questions and such questions must be the questions "involved in the suit".
32. In the case of MALIK MUMTAZ ALI v. GOVERNMENT OF PAKISTAN THROUGH THE SECRETARY, REFUGEES AND WORKS, GOVERNMENT OF PAKISTAN, RAWALPINDI AND 3 OTHERS (PLD 1971 Lah. 395), it has been held that the complete and effectual adjudication of the questions involved in the suit, as mentioned in the sub-rule (2) of rule 10 refers to the suit as instituted and not to a new cause of action presented by the defendant or the respondent who seeks to be transposed as a plaintiff or a petitioner.
33. In view of the foregoing, I have not been able to persuade myself to allow the proposed amendments and/or tffe impleadment of Muhammad Idrees in this suit as sought by the Plaintiff.
The applications are, therefore, dismissed.