IRFAN SAADAT KHAN, J.---The instant High Court Appeals (hereinafter referred to as "HCAs" or "HICA") have been filed impugning the order dated 02.07.2019 passed by the learned Single Judge in C.M.A.
No.16710/2018 under Order I, Rule 10, C.P.C.; C.M.A. No.16711/2018 under Order I, Rule 10, C.P.C. and C.M.A. No.14489/2018 under Order XXXIX, Rules 1 and 2, C.P.C., filed in Suit No.1929 of 2018. Since the parties are common hence all the three H.C.As. are proposed to be disposed of by this common judgment.
2. Briefly stated, the facts of the case are that the respondent No.1, being the plaintiff in Suit No.1929 of 2018, entered into a contract dated 15.06.2017 with Performance Automotive (Pvt.) Limited (hereinafter referred to as "PAPL") for delivery of the vehicle New Panamera Turbo S E-Hybrid MY 18 (Model 2018), exterior colour Vulcano Grey Metallic Porsche (hereinafter referred to as "the vehicle") for a total consideration of US $ 3,36,900/-. It is the contention of the respondent No.1 that full amount of the said vehicle has been paid to the PAPL. Thereafter some disputes arose between the parties. Some correspondence also took place between the parties. However when the respondent No.1 came to the conclusion that the appellant PAPL is not abiding by the terms of the contract, he filed a suit for specific performance, declaration, direction, injunction and damages against the PAPL, Porsche Centre Karachi (hereinafter referred to as "PCK"), Porsche Middle East and Africa FZE (hereinafter referred to as "PMEA"), Porsche A.G (hereinafter referred to as "PAG") and others. The respondent No.1 also filed a stay application bearing C.M.A. No.14489/2018. In the meantime the defendants Nos.2 and 3 in the said suit i.e. PMEA and PAG filed two applications under Order I, Rule 10, C.P.C. bearing C.M.As. Nos.16710/2018 and 16711/2018 for deletion of their names from the list of the defendants in the above referred suit. All the three applications were heard together by the learned Single Judge, who thereafter, vide order dated 02.07.2019, dismissed the two applications under Order I, Rule 10, C.P.C. filed by PMEA and PAG, however allowed the application under Order XXXIX, Rules 1 and 2, C.P.C. filed by the respondent No. 1 . It is against this order of the learned Single Judge that the present three H.C.As. have been filed.
3. Mr. Omair Nisar Advocate has appeared on behalf of the appellants in H.C.A. No.252 of 2019 and stated that the PAPL is an independent agent fully authorized to enter into agreement for booking of the Porsche vehicles in Pakistan. He stated that the agreement was between PAPL and the respondent No.1 and if there are some differences, the same have to be sorted out by them and the appellants being foreign entities have no concern with the matter. He, however, admitted that PAG is the brand owner of the Porsche. He stated that the appellants do not have any branch office in Pakistan and are not carrying out any business activities in Pakistan. He admitted that certain emails were addressed by the respondent No.1 to them but simply receiving some emails would not prove involvement of the appellants in the instant matter. He, therefore, stated that the learned Single Judge, without giving plausible reasons, has dismissed the two applications filed by the appellants hence the order may be set-aside. He further stated that the matter between the PAPL and the respondent No.1 was with regard to delivery of the vehicle which pertains exclusively to them since, according to him, the responsibility of the PAG and PMEA stands culminated when the vehicle was delivered at the port. He further stated that no document has been produced by the respondent No.1 to create any nexus of PAG and PMEA in the matter. In support of his above contentions, the learned counsel has placed reliance on the following decisions: Lawyers Foundation for Justice through Chairman v. Federationof Pakistan and others (PLD 2019 Lahore 43)
Engro Foods Ltd. Through duly Authorized Attorney v. Provinceof Sindh through Secretary , Ministry of Labour and 2 others (2018 MLD 866 )
Aroma Travel Services (Pvt.) Ltd. Through Director and 4 others v. Faisal Al Abdullah 41 Faisal Al-Saud and 20 others (2017 YLR 1579 )
Tajuddin v . Ferozuddin Ahmed and 2 others (2010 YLR 256 )
4. Mr. Muhammad Ali Lakhani Advocate has appeared on behalf of the appellants in H.C.As. Nos.257 and 307 of 2019 and submitted that the learned Single Judge was not justified in entertaining the matter of the respondent No.1, since as per clauses 37 and 38 of the agreement entered between the parties, the vehicle was to be delivered at Lahore hence cause of action, if any, would arise in Lahore and not in Karachi. He submitted that this aspect has totally been ignored by the learned Single Judge hence the order is liable to be set-aside. In support of this contention, the learned counsel has placed reliance on the following decisions: i) Collector of Customs v . Messrs Ayaz Ahmed (2007 PTD 234 ) ii) Zafar Iqbal and 3 others v . Nasreen Ahmed and 8 others (2014 CLD 1039 )
5. He further stated that the relief sought in the stay application was not available to the respondent No.1 and granting of the said relief amounts to granting the final relief to the respondent No.1, which could not be done in an interlocutory application. He stated that if the order of the learned Single Judge is perused it would become evident that by granting the injunction, in a way, the whole prayer made in the suit has been granted, which cannot be done. Hence according to him on this aspect the order of the learned Single Judge needs to be vacated. In support of this contention, the learned counsel has placed reliance on the following decisions: i) Islamic Republic of Pakistan through Secretary , Establishment Division, Islamabad and others v.
Muhammad Zaman Khan and others (1997 SCMR 1508 ) ii) Unreported decision of the Hon'ble Supreme Court of Pakistan in C.P . No. 504-K/2017 iii) Unreported decision of the Hon'ble Supreme Court of Pakistan in Civil Petitions Nos. 1971, 1981, 1982 and 1983 of 2018 iv) Unreported decision of this Court in H.C.As. Nos.142 of 2015 and 180 of 2017 (2018 PLC (C.S.) Note 131, p.125. v) Messrs Ismail Industries Limited through Authorized Officer v. Mondelez International and 2 others (2019 MLD 1029 )
6. He further stated that the intention of the parties is to be gathered from their conduct as in the present matter since the vehicle delivery agreement made between the parties has already been terminated and the amount has been returned along with the interest to the respondent No.1 though not accepted hence the cause of action arising in the instant matter has vanished and therefore there was no occasion to grant injunction in the instant matter . In support of his above contention, the learned counsel has placed reliance on the following decisions: i) House Building Finance Corporation v. Shahinshah Humayun Co-operative House Building Society and others (1992 SCMR 19 ) ii) Muhammad Matloob and 10 others v . Jamshed K. Marker and 2others (PLD 2006 Karachi 523 ) iii) Syed Adnan Ashraf v . Syed Azhar-ud-Din through Attorney (2014 MLD 342 )
7. He further stated that the intention of the contracting parties is to be determined at the stage of the trial and not at the time of stay application. To support this contention, the learned counsel has placed reliance on the decisions given in the case of Ch. Habibullah and others v. Ali Muhammad Mohsin (1999 CLC 1798 ). He stated that the parameters as required for grant of injunction are missing in the instant matter as the respondent No.1 has failed to make out any prima facie case and thus the grant of injunction was not justified. In support of his this contention the learned counsel has placed reliance on the following decisions: i) Sayyid Yousaf Husain Shirazi v. Pakis tan. Defence OfficersHousing Authority and 2 others (2010 MLD 1267 ) ii) Puri Terminal Ltd. v. Government of Pakistan through Secretary , Ministry of Communications and Railways, Islamabad and 2 others (2004 SCMR 1092 )
8. Mr. Lakhani, in the end, prayed that since the order of the learned Single Judge suffers with a number of irregularities and illegalities hence the same may be vacated/set-aside.
9. Khawaja Shams-ul-Islam, Advocate, has appeared in all the three H.C.As. on behalf of the respondent No.1 and supported the order of the learned Single Judge and stated that since the issue was highly contentious between the parties, therefore, the learned Single Judge was quite justified in granting mandatory injunction in favour of the respondent No. 1. He, while elaborating his viewpoint, submitted that PAPL has flagrantly violated the terms of agreement dated 15.06.2017 and has not delivered the vehicle, as per the assurance given by them in the contract.
He stated that the assurance was given to the respondent No.1 that the vehicle will arrive in December 2017 however that promise was not kept and the vehicle was not delivered to the respondent No.1, even today , as the same is lying at the port in a container . He stated that it was categorically agreed between the parties that any difference in the price would be settled and the respondent No.1 has even paid some extra amounts to PAPL as and when demanded by them. According to him admittedly the whole amount of the vehicle has been paid and nothing now remains to be payable by the respondent No.1 but the PAPL with mala fide intention has illegally and unilaterally cancelled the terms of the agreement which has caused serious prejudice to the respondent No.1 and it was in this background that the learned Single Judge, after hearing all the parties at considerable length, has granted injunction in favour of the respondent No.1 and admittedly the matter is now fixed for further proceedings before the learned Single Judge. He stated that the vehicle has arrived on 28.04.20 18 and since then is at port and in spite of the promise of the PAPL that they will process the legal formalities for getting the car cleared from customs and other government agencies but in spite of repeated requests made by the respondent No.1 they have neither kept their promise nor have delivered the vehicle rather in a very cavalier manner have terminated the contract. He stated that complaint of the PAPL has also been made to the PAG who has acknowledged the same.
He stated that a number of documents were also placed before the learned Singl e Judge, which were examined.
The learned counsel invited our attention to various clauses of the agreement and various emails exchanged between the parties to show that due to the negligence on the part of the PAPL the vehicle was firstly not timely delivered and secondly the agreement was terminated without any legal and lawful justification. He stated that the decisions relied upon by the learned counsel for the appellants are not applicable in the instant case and in support of his above arguments has relied upon the following judgments: i) Unreported judgment dated 15.3.2010 passed in Suit No.1453/2018 in which vehicle was directed to be delivered to the respondent No. 1. ii) The aforesaid judgment was challenged in HCA which was dismissed. Dewan Mushtaq Motor Co. (Pvt.) Ltd. v.
Umair BinZahid and 7 others (2015 MLD 1251 ). iii) Giorgio Beverly Hills Inc. v. Colgate Palmolive Pakistan Ltd.(Formerly known National Detergents Limited) and another (1999 MLD 3173 ). iv) Agha Saifuddin Khan v . Pak Suzuki Motors Company Limited and another (1997 CLC 302 (Karachi)). v) Commissioner of Income-T ax, Peshawar Zone, Peshawar v .Messrs Siemen A.G. (PLD 1991 SC 368 ). vi) Aroma T ravel Services (Pvt.) Ltd. v . Faisal Abdullah Al-Faisal Al-Saud and 20 others (2017 YLR 1579 ). vii) Government of Pakistan through Ministry of Finance v. M.I.Cheema, Dy. Registrar , Federal Shariat Court and others (1992 SCMR 1852 ).
10. While replying to the arguments advanced by Mr. Omair Nisar , learned counsel for the appellants in H.C.A.
No.252 of 2019, submitted that since they are proper and necessary parties, being principal of PAPL, hence their applications under Order I, Rule 10, C.P .C. were rightly dismissed by the learned Single Judge.
11. Mr. Omair Nisar , while giving his rebuttal, has not fully supported the arguments of Mr. Muhammad Ali Lakhani and stated that since the dispute between the appellants in H.C.As. No.257 and 307 of 2019 and the respondent No.1 was with regard to a contract entere d between them therefore the appellants in H.C.A. No.252 of 2019, whom he is representing, have incorrectly been dragged into the matter and, in his view, they are not a proper and necessary party , therefore, he reiterated that the two applications filed under Order I, Rule 10, C.P.C. by the appellants, in H.C.A. No.252 of 2019, were incorrectly dismissed by the learned Single Judge and therefore the order passed may be set-aside by deleting the names of the appellants, in H.C.A. No.252 of 2019, from the list of the defendants in the Suit No.1929 of 2018. In support of his above contentions, the learned counsel has placed reliance on the following decisions: i) Messrs Caltex Oil (Pakistan) Ltd., Karachi v . Sheikh Rehan-ud Din (PLD 1958 (W .P.) Lahore 63). ii) Messrs W orld W ide T rading Co. v . Sanyo Electric T rading Co.Ltd. and another (PLD 1986 Karachi 234 ). iii) Shahzad Trade Links through Sole Proprietor and another v.MTW Pak Asse mbling Industries (Private)
Limited through Representative and o thers ( 2016 CLC 83 ).
12. Mr. Muhammad Ali Lakhani Advocate, in his rebuttal, submitted that he also does not fully support the arguments of Mr. Omair Nisar since they are the owners and manufacturers of Porsche hence, in his view, are proper and necessary parties in the proceedings. He stated that the appellants, whom he is representing, have only acted as middleman as Porsche is the brand of PAG. He stated that all the technical support in respect of Porsche has to come from the respondents Nos.2 and 3. He in the end stated that the decisions relied upon by Khawaja Shams-ul-Islam are not applicable in the instant case and are distinguishable and the HCAs filed by him may be allowed.
13. It is pertinent to mention that on some dates of hearing Mr. Muhammad Bilal Bhatti, Advocate (in H.C.A. No.252 of 2019 for the respondents Nos.3 and 5(ii) and Ms. Durdana Tanveer , Assistant Attorney General for Pakistan (in H.C.A. No.252 of 2019 for the respondent No.5(i) and (ii) and in H.C.As. Nos.257 and 307 of 2019 for the respondent No.6(i) and (ii) have appeared but neither any appearance was made by them for making their submissions nor any representation was made on their behalf when the matter was finally heard and reserved for judgment on 20.01.2020.
14. We have heard all the learned coun sel at considerable length and have also perused the record and the various decisions relied upon by them.
15. We will first take up the HCA filed by Mr. Omair Nisar impugning the order of the learned Single Judge by rejecting the two applications under Order I, Rule 10, C.P.C. filed by the appellants in H.C.A. No.252 of 2019.
Perusal of the record reveals that the only reason given in the applications being that the said appellants since are foreign entity and have no business connection in Pakistan hence are not a proper and necessary party and since the dispute, if any, was between PAPL and the respondent No.1 hence the defendants Nos.2 and 3 in the suit may be deleted from the array of the defenda nts. It is duly noted that some emails were addressed by the respondent No.1 to the appellants which were even replied by them with a promise that they will look into the matter , which clearly shows their involvement in the matter since it is an admitted position that Porsche is a brand name owned by the PAG and in case any defect in the Porsche vehicle is found the same has to be rectified and removed by them. It is also an admitted position that the vehicle booked by the respondent No.1 was not a showroom car, meaning thereby that the car booked was not the one which could be said to be available at the showroom and could be purchased from there rather , it is again an admitted position that the said vehicle booked by the respondent No.1 was a customized vehicl e having special features duly mentioning what paint the respondent No.1 wanted on the exterior of the car and what additional luxuries needed in the interior . The description of the car and the extra amount paid by the respondent No.1 are duly mentioned at page No.113 of H.C.A. No.252 of 2019, clearly denoting that it was not an ordina ry car rather a customized vehicle, though booked through PAPL for the respondent No.1, but the same has to be manufactured and built as per the specif ications and requirements of the respondent No.1 by PAG Germany , which clearly' elucidates that in case any shortcoming was found in the vehicle, it would be the PAG which would be contacted, though through PAPL. However , providing the specialized specifications on the said vehicle was definitely the responsibility of the PAG and not PAPL. Though it has been pleaded that after manufacturing and dispatching of the vehicle PAG has no liability towards the plaintif f (respondent No.1) but it has not been denied that in case of any manufacturing defect it would be the ultimate liability of the P AG to rectify the same.
16. Interestingly in the instant matter Mr. Muhammad Ali Lakhani, learned counsel for PAPL has not supported the arguments of Mr. Omair Nisar that PAG and PMEA are not a proper and necess ary party by submitting that his clients i.e. PAPL has only acted as a middleman, whereas the ultimate responsibility in respect of the vehicle was that of PAG and PMEA. The learned Single Judge, while dealing with the matter , has dealt with this issue in detail and has categorically observed that PAG is the manufacturer of the said vehicle, whereas PMEA is a handling agent of the said vehicle in this part of the world and that the PAPL has acted as an authorized agent of PMEA and PGA. It is also an admitted fact that in the contract entered between the PAPL and the respondent No.1 there are clauses which brings in PMEA and PAG also into the picture. In the decision reported as Ali S. Habib and others v.Dr. Sher Afghan Khan Niazi and others (2004 SCMR 1627 ) (Our own research) the Hon'ble Supreme Court of Pakistan refused to delete the names of the petitioner from the set of the defendan ts on the ground that the matter is at preliminary stage. In the instant case also since the issues are yet to be framed and parties are yet to be examined and when it is found that PMEA is looking after the affairs of PAG in this part of the world for the Porsche and PAG being manufacturer of the Porsche hence they could not, in our view, claim themselves to be aloof from the instant matter , when prayers in the suit have also been made with regard to suspension of trade license and agency of PAPL for not coming up to expectations in respect of delivery of the vehicle, which is their brand and it is they who have appointed PAPL as their agent in Pakistan. In the case of Syntron Limited v. Huma Ijaz and others (2014 SCMR 531) (Research of our own) the Hon'ble Supre me Court allowed the application under Order I, Order 10, C.P .C. after finding the party to be necessary and proper party .
17. It is a settled proposition of law that the provisions of Order I, Rule 10, C.P.C. are discretionary in nature and the Court can either , on an application or on its own, add or delete a party , if it finds that adding or deletion is quite necessary for a just and proper decision and the various decisions cited by Mr. Nisar also encapsulates this proposition of law hence are not found to be supporting his case rather that of the respondent No.1. In the instant case since PMEA and PAG have a direct nexus and concern with the delivery of the vehicle, being their representative to this part of world and manufacturer respectively , it cannot be presumed and assumed that in the present dispute, if admitted to be between PAPL and the respondent No.1, they are not a proper and necessary party . It is a settled proposition of law that impleading any person in a particular proceeding is to add or delete that person for proper dispensation of justice and for a proper adjudication in a matter to settle the questions involved in the proceedings. Proper parties are those parties who could be found beneficial in respect of the disputes between the parties or the person who have some interest in the subject matter .
18. During the arguments Mr. Omair duly conceded that if a person buys Porsche car and is not satisfied with the performance of the said car supplied by the agent, PMEA and PAG would definitely look into the matter , if the same in any manner whatsoever relates to Porsche brand. Moreover this also has not been denied and controverted that impleading of PMEA and PAG would definitely facilitate the Court to decide more effectively the questions raised in the suit.
19. We, therefore, in view of what has been stated above are of the view that PMEA and PAG are a proper and necessary party , as prayer clauses VI and IX directly relate to them, whereas the prayer clauses II, IV, V, VII, VIII, XI and XII if not directly but indirectly could be attributed to them. We, therefore, in view of the above discussion do not find any illegality or irregularity in the order passed by the learned Single Judge, which is hereby affirmed and the H.C.A. bearing No.252 of 2019 stands dismissed.
20. So far as the HCAs bearing No.257 and 307 of 2019 are concerned, before 'proceeding any further we would like to observe that injunction is an equitable relief and has to be granted upon fulfillment of three conditions i.e. 1) prima facie case, 2) balance of convenience and 3) apprehension of irreparable loss. The Court while exercising its power has to see that in the lis before it whether these three conditions are fulfilled or not and if a party succeeds in bringing home its case that in the given facts and circumstances it has a prima facie case with regard to some illegality or irregularity committed by the other side and that the balance of convenience is also in his favour and that he apprehends damages or irreparable loss from the hands of the other side, this equitable relief becomes mandatory and the Court is bound under the law to grant injunction. Now if the facts of the instant matter are considered it would be seen that the respondent No.1 admittedly has even paid the extra amount demanded by the PAPL but what promoted the PAPL to cancel the agreement between the parties dated 15.06.2017 and to refund back the amount along with 6% interest not only needs to be considered seeking PAPL's point of view but also the respondent No. l's agony to be taken care. of in verifying the claim that the vehicle despite promises was not delivered in a timely manner rather the amount paid for the car was returned along with the interest, though not accepted by the respondent No.1, meaning thereby that the respondent No.1 does have a prima facie case and claim over the appellants for not delivering the vehicle booked by him as per their promise. Hence, so far as this aspect of the matter is concerned, we agree with the findings of the learned Single Judge and submissions of Khawaja Shams-ul-Islam Advocate that the respondent No.1 does have a prima facie case and claim over PAPL, so far as delivery of the vehicle is concerned, which could only be sorted out after framing of issues, recording of evidence and fulfilling other legal formalities, apart from claims over other respondents.
21. So far as balance of convenience is concerned, here again we tend to agree with the findings of the learned Single Judge and contentions of Mr. Shams that restraining PAPL from creating any third party interest had become necessary when admittedly the vehicle has reached Karachi and is lying at the port and until and unless the dispute between the parties is resolved, after due process of adjudication, in case of handing over the vehicle to a third party would definitely be quite inconvenient for the respondent No.1 .
22. Apropos, third condition is concerned, in our view, this condition also seems to have been fulfilled in the instant matter as a hefty amount of US $ 3,36,900/- and some other payments have been made by the respondent No.1 to buy this luxury vehicle, which was a customized vehicle and in case of non-delive ry of the said vehicle he would suffer loss hence some injunctive order , looking to the facts of the case, was quite necessary in this regard. It appears from the decisions cited by Mr. Lakhani that the same rather than supporting him, in fact, supports the stance of Mr . Shams with regard to grant of mandatory injunction.
23. The record also reveals that the respondent No.1 has made hectic efforts in time and again requesting the PAPL to deliver the vehicle and get the same cleared from the customs authoriti es, which they have failed. The teamed Single Judge has categorically noted that the basis on which the agreement was terminated was not correct since it has categorically been found that the F.E. Circular No.7/2018, dated 20.07.2018, issued by the State Bank of Pakistan has no bearing on the instant matter and the delay in filing GD etc. was also on the part of PAPL.
24. So far as the issue of jurisdiction as taken by Mr. Muhammad Ali Lakhani is concerned, suffice to state that Porsche Centre Karachi is located in Karachi, respondent No.1 also resides in Karachi and the vehicle arrived at Karachi port, though delivery was to be made in Lahore, clearly stipulates a cause of action duly arose in Karachi hence this objection raised by Mr. Lakhani with regard to jurisdiction and the decisions relied upon by him in this behalf are not found to be of any help to him in view of sections 16 and 19 of the C.P .C.
25. So far as the contention of Mr. Lakhani is concerned that by granting injunction whole suit has been decided in favour of the respondent No.1. This argument is also found to be incorrect, since in the suit as many as 15 prayer clauses have been made and it is only prayer clauses I, II, IV and VIII which relates to the delivery of car, whereas the other prayer clauses, on which adjudication is yet to be made, pertains to other reliefs being claimed and sought by the respondent No.1, hence, this assertion of Mr. Lakhani is not found to be plausible and the decisions relied upon by him in this regard are found to be distinguishable on the facts obtaining in the instant matter . Thus this contention is also rejected.
26. We, therefore, in view of what has been stated above, do not find any merit in the two H.C.As bearing Nos.257 and 307 of 2019 and dismiss the same accordingly . Parties are directed to abide by the instructions given by the learned Single Judge in Para-20 of his order . We do not want to express anything further in the matter since contempt applications have been filed in the suit, which are subjudice before the learned Single Judge, who will decide the same in accordance with the facts obtaining in the suit.
27. The upshot of the discussion is that all the three HCAs are found to be devoid of any merit and are hereby dismissed along with all the listed and pending applications.