' SHUJAAT ALI KHAN, J.--- Through this revision petition the petitioners have prayed for setting aside order dated 27-3-2010 passed by the learned Additional District Judge, Hasilpur, whereby he allowed the application filed by respondents Nos.2 and 3 under Order I, rule 10, C.P.C.
2. Shorn of unnecessary details, the fact's, forming background of the instant revision petition, are that respondent No,1/plaintiff filed a suit for partition qua Shop No,39, Ghallah Mandi Hasilpur and Shop No,11/B, Main Bazar Mandi Hasilpur against the petitioners/defendants. During the pendency of the said suit both the parties agreed to resolve their controversy through arbitrator. As a result, the arbitrators submitted their award before the Court on 24-3-2003 to which respondent No,1 filed an objection petition which was dismissed and vide judgment and decree dated 8-5-2003 the award was made rule of the Court. Feeling aggrieved by the said judgment and decree the respondent No,1/plaintiff filed an appeal before the learned Additional District Judge Hasilpur, on 12-6-2003. During the pendency of that appeal respondents Nos.2 and 3 moved an application under Order I, rule 10, C.P.C. For impleading them as party in the said appeal which was allowed by the learned Additional District Judge, Hasilpur, vide order dated 27-3-2010; hence this petition.
3. The arguments advanced by learned counsel for the petitioners can be summarized in the words that while passing the impugned order the learned Additional District Judge omitted to consider that the alleged 'gift deed in favour of respondents Nos.2 and 3 was hit by principle of lis pendence inasmuch as according to section 52 of the Transfer of Property Act, 1882, that was a nullity in the eye of law that though the suit was filed in the year 1989 and the same remained pending till 8-5-2003 when the same was decreed and thereafter the proceedings on the appeal filed by respondent No,1 are pending since 12-6-2003 but the respondents have approached this Court on 12-7-2008 just to blackmail the petitioners and to delay the outcome of the appeal; that the learned Additional District Judge while deciding the application filed by respondents Nos.2 and 3 did not take into consideration that neither they were necessary party nor the proper one; that in support of his conclusion, learned Additional District Judge has not advanced any cogent reason rather the impugned order is based on surmises and conjectures and that due to pendency or this revision, the fate of the appeal filed by respondent No,1 has already been delayed for about two years. In support of his contentions, learned counsel has placed reliance on the cases reported as "Muhammad Yaqoob Khan v. Mst. Sahib Khatoon and others" (1998 CLC 1576), "Col. (R) Sadiq Hassan Sheikh v. Abdul Rasheed and another" (1993 MLD 486), "Rustam Ali and 2 others v. Haider Bakhsh and another" (1988 CLC 779) and "Wajed Ali and others v. Sudhir Chandra Das and others"
(PLD 1970 Dacca 467).
4. Conversely, learned counsel appearing on behalf of respondents Nos.2 and 3 states that he has also instructions to argue the case on behalf of respondent No,1 as he is father of respondents Nos.2 and 3. While defending the impugned order, learned counsel argues that since valid gift deed has already been executed in favour of respondents Nos.2 and 3, therefore, they are necessary party as their valuable rights are involved in the matter; that section 52 of the Transfer of Property Act, 1882, is not applicable qua the gift deed in the instant case as the suit filed by respondent No,1 was only for partition; that the appellate Court is fully empowered to add or delete a party and that the impugned order does not suffer from any legal or jurisdictional defect.
5. I have heard the learned counsel for the parties and have also gone through the documents appended with this petition in addition to the case-law cited by the learned counsel for the petitioners at the bar.
6. To resolve the controversy between the parties, I am of the view that firstly the terms 'necessary party' and 'proper party' be defined. In my humble opinion, a party whose presence before Court is necessary to effectually and completely adjudicate upon and settle all questions can be termed as a 'necessary party' whereas a party whose presence before the Court is essential for the adjudication of all issues involved in the suit is called 'proper party'. The said two terms have been defined by the august Supreme Court of Pakistan in the case reported as "Muhammad Arif and others v. District and Sessions Judge and others" (2011 SCMR 1591) in the fallowing beautiful words:- "A party who ought to have been joined is a 'necessary' party' and one whose presence is necessary for the adjudication of all issues and matters involved in the suit is a 'proper party'."
' If we adjudge the status of respondents Nos.2 and 3 on the touchstone of the above-quoted definition it is established that neither the said respondents are necessary party for the decision of matter relating to partition nor they are proper parties as to resolve the issue between the parties before the learned District Judge is not necessary. There is no cavil with the preposition that not only the civil Court but the appellate Court has also the power to add or delete any party but the same should not be at the cost of the rights of the other party. In my humble view the observation of the learned Additional District Judge that respondents Nos.2 and 3 are necessary party is not tenable.
7. Moreover, it has been established by now that objection regarding non joinder of necessary party be taken at the earliest and if the same is not taken at the appropriate stage, it would be deemed to have been waived. While dealing with said question, the august Supreme Court of Pakistan in the case of Muhammad Arif (supra) has held that--- "The presence of proper parties before the Court is also to prevent frustration or embarrassment of the suit by containing investigations/inquiries on the same controversies in more than one trial. An objection to their joinder, misjoinder or non-joinder must be taken at the earliest. Failing which as per Rule 13 thereof such objection will be deemed to have been waived."
' A perusal of the afore-quoted portion of the judgment of the apex Court makes it abundantly clear that objections qua the misjoinder or the non-joinder of the parties should be taken at the earliest. Insofar as the case in hand is concerned, respondent No,1, who is real father of respondents Nos.2 and 3, neither pointed out the factum of gift deed in favour of his sons nor mentioned the said fact in the appeal filed by him in the year 2003. Similarly, respondents Nos.2 and 3 who are basing their claim on the gift deed executed in the year 1998 neither filed any application to become party during the pendency of the suit which was decided in the year 2003 nor they opted to join as a party in the appeal which was filed in the same year rather they kept on waiting for about 10 years to file an application to become party to the proceedings when the conclusion of the appeal filed by their real father was insight. It is not believable that respondents No,2 and 3 were not aware about pendency of the civil suit filed by their father and thereafter appeal before the District Judge.
8. Another important limb of the instant matter is that consequent upon the agreement between the parties, the matter was referred to the arbitrators and the award announced by them has already been made rule of the Court. If respondents' Nos.1 and 3 had any vested right, as claimed by them now, the inaction on their part to challenge the said award speaks volumes about their conduct.
9. Now coming to the petitioners' contention that execution of gift deed during pendency of civil suit between the parties is hit by the principle of lis pendence and the same is of no consequence, I refrain to comment upon the said aspect of the case lest it may prejudice the case of either party.
10. Insofar as the claim of respondents Nos.2 and 3 that they are necessary party on the basis of gift deed executed by respondent No,1 in their favour in the year 1998, is concerned, I am of the view that since the said gift deed was executed during pendency of suit between the parties, the ultimate fate of the said deed depends upon the final outcome of the lis pending between the parties before the learned Additional District Judge and prior to that respondents Nos.2 and 3 cannot claim that they are necessary party. While dealing with somewhat similar proposition, this Court in the matter of "Mst. Taniya Syed v. Sh. Lmran Jaleel and others" (PLD 2011 Lahore 539) has held that--- "Here in this case petitioners-plaintiff filed suit for possession through partition against respondents Nos.2 to 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 petitioners-plaintiff allegedly purchased from her through an agreement to sell and had also paid the earnest money while he has yet to prove the stance, therefore, his presence before the learned trial Court in order to decide the matter between the petitioners-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."
11. Even otherwise, respondents Nos.2 and 3 would be at liberty to establish, their title in the property in dispute by resorting to proceedings before the competent forum.
12. As a necessary corollary to the discussion made in the foregoing paragraphs .I am of the view that while accepting the application filed by respondents Nos.2 and 3 the learned Additional District Judge had proceeded on totally wrong track inasmuch as he did not consider that they were not necessary party to the proceedings pending between the parties. Consequently, this revision petition is accepted and the impugned order dated 27-3-2010 is hereby set aside and application of the respondents Nos.2 and 3 for their impleadment as party in the appeal filed by respondent No,1 would stand dismissed. The parties shall bear their respective costs.
13. Before parting with the order, in view of the fact that the appeal is pending before the learned Additional District Judge since the year 2003, the learned appellate Court is directed to decide the same expeditiously without further loss of time.