' SHAUKAT ALI MEMON, J.--- Plot bearing No, SD-26. Block-G, North Nazimabad, Karachi admeasuring 1104-44 Sq. Yards is the subject-matter of Civil Suit No,931 of 2005 for specific performance declaration, damages and injunction pending before the Court of 6th Senior Civil Judge, Karachi Central wherein petitioner Muhammad Jameel (now dead) moved an application under Order I, Rule 10, C.P.C. For joining him as necessary party, which was allowed by the trial Court but the said order was set aside in Civil Revision No,5 of 2012 by respondent No,3 (1st Additional District Judge, Karachi Central) vide order dated 5-10-2013 which has now been impugned through this petition.
2. The main ground urged in this petition is that the subject property is leased out in the name of Messrs Jameel Enterprises Pvt. Ltd. Where deceased Baba Tehseen Shah Zaheer Taji was holding one share while the remaining shares belong to the petitioner(s) therefore, petitioner(s) are interested and necessary party, thus order of the trial court was proper and in accordance with law and has wrongly been set aside by the respondent No,3 in Civil Revision.
3. The respondents Nos. 1 and 2 in their counter-affidavit have filed certain documents and for the purpose of this petition Annexures R-2, R-3, R-4, R-9 and R-13 are relevant. Annexure R-2 is the first compromise application in Suit No,591 of 1982 (C.M.A. No,1093 of 1991), R-3 is order thereon, R-4 is the second compromise application bearing signature of Muhammad Jameel and is supported by his affidavit, R-9 is the relinquishment deed executed by Muhammad Jameel and other legal heirs of deceased Baba Tehseen Shah Zaheer Taji while annexure R-13 is the deposition of late Muhammad Jameel in Rent Case No,402/2008 recorded on 26-5-2010 wherein there is acceptance by him that after preparation of relinquishment deed he has no concern with the subject property.
4. The rejoinder filed by Syed Irshad Hussain, one of the legal heirs of Muhammad Jameel does not specifically deny the above factual position including execution of relinquishment deed in respect of the subject plot.
5. The concluding paragraph of the impugned order reads as under:--- ' After bare perusal of record it reveals that plaintiff filed suit No,931 of 2005 for specific performance of contract against three defendants namely Muhammad Saleem, Aliya Saleem and Saleha Zaheen, due to their refusal from registration of relinquishment deed in terms of agreement dated 15-12-2003, in favour of plaintiff the respondent/intervener Muhammad Jameel has executed and registered the deed of property in question while he acquired the same by virtue of order dated 5-9-1991 on compromise deed C.M.A. No,1093 of 1991 passed by the honourable High Court in Suit No,591 of 1982, wherein Nazir was appointed as sale commissioner to sell the properties of deceased father, inter alia, property in question. Second compromise was filed by all legal heirs and vide order dated 25-5-2000, learned Additional District Judge South granted permission to legal heirs to sell properties, inter alia, property in question. This was challenged in Rent Appeal No,147 of 2007 vide judgment dated 8-10-2007, which was duly upheld by the honourable High Court and reported in 2008 YLR 175. It is matter of record that no relief against respondent/intervener Jamil has been sought because he himself executed and registered relinquishment deed in favour of applicant. The respondent in rent cases in his cross- examination admitted the applicant as owner and judgment was passed in that rent case in presence of respondent, therefore, plea of the respondent that suit property bearing Plot No, SD- 26, Block-G, North Nazimabad Karachi is owned by Messrs Jameel Enterprises Private Limited and that he is Director of the same falsify his earlier submission as made in administration suit which was compromised. Appellant's counsel submits that the respondent/ intervener surrendered all his rights at the time of filing compromise application in C.M.A. No,1093 of 1991, and second compromise application in the court and also at the time of execution of relinquishment deed, therefore, the prayer made in an application under Order 1, Rule 10, C. P. C. Has no weight and in the light of the order passed by the honourable High Court in C.M.A. No,1093 of 1991 on 5-6-1991 the property left by the deceased have devolved upon all legal heirs. The prayer made by the respondent/intervener Jameel in his application filed under Order 1, Rule 10, C. P.C. Are amounting to violation of honourable High Court's order passed in the matter. The order passed by the learned Vth Senior Civil Judge impleading the respondent Jameel as defendant is not legal and proper. Learned Senior Civil Judge committed irregularity while passing the order dated 24-1-2012 in Suit No,931 of 2005, thus, order dated 24-1-2012 is hereby set aside and revision is allowed."
6. Learned counsel for the petitioner(s) argued that Nazir of this Court being receiver was custodian of the properties, thus without his termination no compromise or execution of relinquishment deed was competent; that late Muhammad Jameel was the owner of the subject property purchased by him in the name of Messrs Jameel Enterprises vide indenture of lease executed- between KDA and Messrs Jameel Enterprises; that late Muhammad Jameel was an illiterate person and his signatures were obtained through fraud and misrepresentation, thus without joining him as proper/necessary party issue raised in the civil suit could not have been resolved. He has relied upon case-law (1) 2007 SCM R 882, (2) 2009 M LD 1237 and (3) 2012 CLC 1477.
7. Conversely, learned counsel for respondents Nos.1 and 2 submitted that signing of compromise application and the decree dated 5-6-1991 prepared in pursuance thereof and subsequent compromise decree drawn by the 5th Senior Civil Judge, Karachi Central in Suit No,591 of 1982 (new Suit No,1812 of 1996) were never challenged by Muhammad Jameel, thus same have attained finality, that execution and registration of relinquishment deed in respect of his share in subject plot as well as his admission in the rent case recorded on 26-5-2010 after relinquishment deed, petitioner(s) has no concern with the said property and it operates estoppel against late Muhammad Jameel which cannot be called in question through this petition and that application under Order I, Rule 10,. C.P.C. Was filed with sole intention to blackmail the respondents just to extort excess amount despite having no concern and ownership rights in the subject property.
8. The contents of the deed of relinquishment reveal that releasors and releasee being legal heirs of Baba Tehseen Shah Zaheer Taji were joint owners of subject plot. It further reveals that the said property was obtained in the name of Muhammad Jameel by Baba Tehseen Shah Zaheer Taji (the predecessor-in-interest of all the executants) and by virtue of compromise order/ decree date, 5- 6-1991 all the executants became owners of the property with the following ratio:---
(I) 50% share shall go to four sons with equal ratio among them i,e, releasors Nos.] to 5 (12.5%), Releasors Nos.6 to 10 (12.5%), Releaser No 11 (12.5%) and Releasors Nos.12 to 16 (12.5%).
(2) 50% shares shall go to five daughters with equal shares among them i,e, Releasor No,17 (Ghousia Talat Zaheen) Releasor No,18 (Alia Zaheen), Releasor No,19 (Saleha Zaheen), Releasor No,20 (Shabbir Ahmed Khan) shall entitle for 10% each.
(3) The releasee being the legal-heir daughter is entitled for 10% share and being the legal heir sister of deceased brother Muhammad Hamim is entitled for 2.73% share.
9. It further envisages that the releasers have relinquished released and surrendered their joint ownership right title and interest in the property in favour of releasee.
10. The relinquishment deed is a registered document which was executed in the year 2005 after order in C.M.A. No,1093 of 1991 dated 5-6-1991 while application under Order I, Rule 10, C.P.C. Is moved in the year 2010 and in the meanwhile the petitioner(s) remained silent and A did not question the said order or execution of relinquishment deed rather admitted its execution expressing his no concern with subject property in Rent Case No,402 of 2008 filed against its tenants.
11. The contention of the learned counsel for the petitioner(s) that without termination of Nazir as Receiver and Sale Commissioner, the subject property and any question relating to release of any share inherited, could not have been validly done, is devoid of the force for the reasons that by virtue of appointment of Nazir as Sale Commissioner, no restriction was put upon ownership rights of the shareholders. At best Nazir would have sold the property and had distributed the sale proceeds amongst the shareholders. The voluntarily action of relinquishment and release by the petitioner(s) and other co-sharers through registered deed to which presumption of truth is attached as an official act cannot be questioned by introducing technicalities which in fact is neither disowned nor challenged before any legal forum prior to moving of application under Order I, Rule, 10, C.P.C.
12. The case-law cited by the learned counsel for the petitioner(s) 2007 SCM R 882 underlines that the Court is vested with the wide discretion to add parties at any stage of suit to avoid multiplicity of the proceedings. The second authority 2009 M LD 1237 is about a petitioner, who was holding an agreement of sale regarding same property and wanted to defend his right, thus was held as a necessary and proper party. The last authority 2012 CLC 1477 is regarding interpretation of necessary and proper party. There is no cavil to the dictum of law laid down above citations however, in the light of discussion above, these authorities are not applicable to the case of the present petitioner(s).
13. In view of the above, we find the petition without merits, thus is dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.