' The present revision application has been filed by the Jetpur Memon Association to challenge an order passed by VIII Civil Judge, First Class, Karachi, on 9-2-1971 in Suit No, 964 of 1969 whereby an application under Order I, rule 10, C. P. C. Filed by the petitioners had been dismissed. This application was filed in a suit by Muhammad Zakaria, the predecessor-ininterest of respondents Nos. 1 to 9 against the Karachi Municipal Corporation, Respondent No, 10, to challenge a notice whereby the Corporation had directed the other respondents to remove some unauthorised construction on a plot. I have heard Mr. Jan Muhammad Dawood for the applicant, Mr. Muslim Naqvi for the Karachi Municipal Corporation and Mr. Ikram Ahmed Ansari for the respondents who are occupying the plot. Mr. Muslim Naqvi for the Karachi Municipal Corporation has supported the application.
2. The brief facts of the case are that Plot No, 363/364 in Artillery Maidan Quarters, measuring 2,215 square yards, located on Frere Road, Karachi was allotted by K. M. C. To the applicant, Jetpur Memon Association. It seems that at the time of allotment of this plot, Muhammad Zakaria the predecessor-in-interest of respondents Nos. 1 to 9 and 2 other persons had occupied the plot in question and perhaps made some structures. The other two persons vacated the plot but the respondents 1 to 9 continued to occupy the same. The Karachi Municipal Corporation initially gave a notice to Muhammad Zakaria, the predecessor-in-interest of respondents Nos. 1 to 9. Calling upon him to remove the structures which were unauthorised from the plot in question. The said Muhammad Zakaria filed a suit seeking a declaration and an injunction to restrain the Karachi Municipal Corporation from contemplated action of forcible removal or demolition of the premises in question. This suit was decided in favour of Muhammad Zakaria and even a second appeal bearing No, 55/62 filed in the High Court of West Pakistan by the Karachi Municipal Corporation failed. This second appeal was decided by Qadiruddin Ahmad, J.-(as he then was) by a judgment dated 15-12-1964. It seems the case of Muhammad Zakaria was that the notice was defective or illegal and therefore he was not liable to be evicted nor would the structures be liable to be demolished in pursuance of such notice. In that regard Mr. Justice Qadeeruddin Ahmad observed in the judgment as follows :- "Mr. Fazle Haq, therefore, contends that the form of the injunction does not keep it open for the Corporation to utilise rule 6 of Schedule VI of Chapter XI of the Act if and when it is strictly and properly followed. I see his point of view and agree with him to the extent that it should be left open to the Corporation to proceed against the respondent in accordance with law, and that the injunction should not be of such a sweeping character that future action may become barred. In this view it is necessary to modify the terms of the decree by pointing out that the Corporation is restrained from evicting the respondent or demolishing the superstructure in. Dispute on the basis of the notice dated the 10th of January, 1956. Exh. D. Served by it on the respondent, but that this prohibition will not stand in the way of the Corporation if in future it exercises its power duly vested in it in accordance with law. Mr. Fazle Haq further desires that it may be clarified that this appeal is not dismissed on the ground that the respondent is hereby held to be a licensee but on the ground that the notice Exh. D is invalid. I agree with him in this respect."
3. The above passage from the judgment of Mr. Justice Qudeeruddi would clearly show that the earlier suit succeeded mainly on the ground o invalidity of the notice. It is absolutely clear that the right of Muhammad Zakaria to occupy the plot was not determined in that suit as indeed it did no need determination in those proceedings. The Karachi Municipal Corporation after the judgment of Mr. Justice Qadeeruddin was delivered issued a fresh notice to Muhammad Zakaria and the present suit, out of which this revision application arises, was filed by him to challenge the validity of the contemplated action by Karachi Municipal Corporation. The present applicant who is or at least claims to be an allotted from the Karachi Municipal Corporation made an application for being joined as a party. This application was rejected by the learned Civil Judge and hence this revision application.
4. The only point that deserves consideration in this case is whether the applicant is entitled to be impleaded in the suit which is pending. Reliance has been placed on sub-rule (2) of rule 10 of Order I of the Code of Civil Procedure. This sub-rule made as follows :- "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."
5. For the purpose of determining the question as to whether the controversy between the parties can be effectually and completely adjudicated upon and whether all the questions involved in the suit can be settled without the applicant being a party in that suit. This provision has come up for interpretation in several reported cases. One out of those is the case of Haji Abdul Wahab v.
Karachi Municipal Corporation (1). In that case enormous case law was referred to and the principles were stated by Vellani, J., in the following words :- "The tenants have the right to carry out the repairs to the sanitary fittings and have the uncarried- out decision of the Corporation in respect of other repairs which involve the valuable right to recoup themselves from the rents. This right is threatened by the suit on grounds identical with those on which the main relief of declaration is sought. Moreover, if the declaration were to be granted the very premises occupied by the tenants would be demolished. If a separate suit were to be brought, it does appear that common questions of law and fact would arise. I therefore, think the plaintiff could have joined the tenants at defendants, having regarded to Order I, rule 3, Civil Procedure Code."
6. Even otherwise, I am clearly of the view that the decision in this suit will affect the interest of the applicant. In case, the suit is decreed I favour of the respondents/plaintiffs the result would be that unauthorised construction carried out on the plot which is owned by or allotted to the applicant would continue to stand on the plot itself. If such a result arises in the suit it cannot be said that the same would not prejudicially affect the applicants. On the other hand, the applicant has a subsisting interest in the plot itself and even for such reason it would only be proper that he is a party. The criterion would in my opinion be the likelihood of the prejudice that would arise from the decision. It is also clear that the applicant should be permitted to put forth his interest in the case and to manifest before the Court the prejudice that is likely to arise in a decision in that particular suit.
7. The Civil Judge had rejected the application on the grounds that the prior suit was decided in favour of the respondents and the applicant had not filed a suit for possession. In my view, such argument is completely irrelevant C because the earlier suit was not decided on the merits of rival claims and even in regard to property the mere fact the applicant not having filed a suit for {{FOOT NOTE}}
(1) PLD 1956 Kar. 391 {{FOOT NOTE}} ' possession would not bar their being joined as party under Order I, rule 10,1 C. P. C. While dealing with the application under Order I, rule 10, C. P. C., the Court has only to see whether the party proposing to enter the contest has an interest in the subject matter of the suit or was likely to be prejudiced by the result in the suit. These reasons have not impressed me.
8. In the result, I allow this revision application and direct that the applicants shall be joined as a party in the suit. After that is done the suit shall proceed in the trial Court.