This single order shall decide the instant petition as well as Cross Objection No.5 of 2014 as both are arising out of single order .
2. This petition under Section 115 of the Code of Civil Procedure (V of 1908) (hereinafter referred as "CPC") arises out of an order dated 8th March, 2014, whereby learned Civil Judge Class-I, Rawalpindi proceeded to dismiss the application of the petitioner under Order I Rule 10 "CPC" as well as application under Section 34 of the Arbitration Act, 1940 moved by the Civil Aviation Authority .
3. The facts in brevity necessary for adjudication of instant petition are that respondent No.1 (hereinafter referred as "respondent") instituted a suit for declaration, permanent injunction and recovery of damages amounting to Rs.5,789,318,524/- with markup and costs against the petitioners, Civil Aviation Authority (hereinafter referred as "CAA") and respondent No.3 canvassing therein that the petitioners being engineers and respondent No.3 had not certified the payments for which the "respondent" was entitled, moreover , while issuing interim payment certificates
(IPCs) No.46 and 47, they had wrongly deducted certain amounts which had been certified in earlier IPCs. During the pendency of suit, "CAA" moved an application under Section 34 of The Arbitration Act, 1940 seeking stay of the suit on the ground that agreement interse parties carries an arbitration clause. The petitioners also moved an application under Order I Rule 10 (2) "CPC" seeking deletion of their names from the array of defendants. Both these applications were decided through single order dated 8th March, 2014, which has now been impugned in the instant petition as well as connected cross-objection by the respective parties.
4. Learned counsel for the petitioners submitted that the petitioners were appointe d as contract administrator and engineer by the "CAA" through an independent agreement. It is added that by virtue of said agreement, the petitioners are only answerable to the "CAA". It is submitted that the suit hinges upon an independent agreement executed between "CAA" and the "respon dent". Learned counsel emphasized that the petitioners being stranger to the said agreements, are neither proper nor necessary party to the suit but they have been impleaded in oblivion of Order I Rule 10 "CPC". In order to supplement his contentions, learned counsel has pointed out certain relevant part of the pleadings as well as agreements in question. It is emphatically contended that impleadment of the petitioners in the array of defendants will amount to burdening them with unnecessary litigation. In order to supplement his contentions, learned counsel has mainly relied upon "PROVINCE OF THE PUNJAB through Secretary , Sports Government of the Punjab and another v. Messrs QAVI ENGINEERS PVT. LTD. through Director and 2 others" (2007 MLD 89) and "NAVEED MERCHANT v. SAFDAR GONDAL and 4 others" (2013 CLD 66 ).
5. Contrary to the submissions of learned counsel for the petitioners, learned counsel representing the "respondent" submitted that services of the petitioners were hired by "CAA" prior to entering into agreement with the "respondent". He added that the petitioners may not be a direct subject to the cause asserted in the plaint but they are not alien to the matter in issue. Learned counsel emphatically argued that the cause of action rests upon IPCs, which make the petitioners as necessary and proper party to the suit. It is contended that power to add or strike out rests with the Court and the learned Civil Judge has rightly exercised such power . Learned counsel further contended that impugned order suffers with no illegality or material irregularity justifying interference in revisional jurisdiction. Reliance has been placed on "ALI S. HABIB and others v. Dr. SHER AFGAN KHAN NIAZI and others" (2004 SCMR 1627 ), "MUHAMMAD IMRAN v. PRESIDENT KASB BANK LTD. and another" (2014 CLC 561 ) and "EJAZ INA YAT v. Rt. Rev . Dr.A.J MALIK and others" ( PLD 2009 Lahore 57 ).
6. After having heard learned counsel for the parties at considerable length, I have perused the record with their able assistance.
7. The "respondent" being a joint venture comprising of three entities entered into an agreement with "CAA" for the execution of certain works relating to new Islamabad International Airport constru ction. The petitioner No.1 is an internationally recognized consultant firm based in the United States, which provides engineering, architecture, construction management, environmental planning, science and economic development services. On account of their remarkable achievements in above paraphernalia, the "CAA" selected the petitioners through a competitive bidding process to provide it project management consultancy services in connect ion with construction of the new Islamabad International Airport. To this effect, an agreement dated 6th January , 2006 was executed. It is an admitted fact that the contract interse "CAA" and petitioners was prior in time as to the agreement between "CAA" and "respondent". Perusal of the latter agreement reveals that the petitioners being engineers were assigned certain duties in terms thereof for the performance of the contract. After having a glimpse of the agreement, it cannot be said that the petitioners were either stranger or alien to the matter in controversy . Order I "CPC" deals with the party to the suit. Rule 3 of Order I "CPC" provides that all persons may be joined as defendants against whom any right to relief in respect of or arising out of the same act or transaction or series of acts or transactions is alleged to exist, whether jointly , severally or in the alternative, where, if separate suits were brought against such persons any common question of law or fact would arise. In the suit, the "respondent" though has canvassed multiple causes giving rise to the filing of the suit but in para-4, the cause related to the petitioners was asserted.
8. There is yet another important aspect that one of the basic limbs necessitating the institution of the suit is the issuance of IPCs No.46 and 47, which have a direct concern with the petitioners. Furthermore, the prayer clause of the suit contains multiple prayers, which relate to all the defendants jointly as well as severally . The question as to who amongst several defendants is liable to be made subject to the decree on culmination of trial would not be relevant enough for the purpose of ascertaining the status of the parties to the suit. Any party , who is necessary or proper , can be joined in the proceedings. A necessary party is one, who opts to have been joined and in whose absence no effective decree can be passed. On the contrary , a proper party is whose presence before the Court is necessary to enable it to effectually and completely adjudicate and settle all questions involved in the suit. Order I Rule 10 (2) "CPC" vests power upon the Court to strike out or add parties to the suit at any stage of the proceedings either upon or without application of either party and on such terms as may appear to the Court to be just. For ready reference, same is reproduced below: -
10. Suit in name of wrong plaintif f:-- : : : 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 plain tiff 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.
From the bare perusal of above referred provision of law, it is manifestly clear that a Court may at any stage of the proceedings, either upon or without the application of either of the parties strike out the name of such party from the array of plaintif f or defendant, if in the opinion of the Court, such party was improperly joined. Simultaneously , Court can add any person who ought to have been joined as a plaintif f or a defendant or whose presence before the Court is necessary in order to enable the Court effectually and completely , to adjudicate upon and settle all the questions involved in the suit, on such terms as may appear to the Court to be just.
9. After having analyzed the scope of Order I Rule 10 "CPC" and the material available on the record, it can safely be inferred that the petitioners are neither strangers nor alien to the proceedings, rather without their presence before the Court no effective adjudication is possible. For the purpose of adding or striking out a party from the lis the outcome of the suit is bit immaterial qua the party seeking such addition or striking out. In somewhat similar facts and circumstances, the learned Sindh High Court held in the case of "MUHAMMAD IMRAN v. PRESIDENT KASB BANK L TD. and another" ( 2014 CLC 561 ) as under: - "10. From the perusal of the above record available with the plaint and the examination of the contents of the plaint, it seems that the presence of defendant No.2 is necessary for the final adjudication of the case as the plaintif f was dismissed from service on the basis of the said report issued by the defendant No.2 and so also from the fact, that the defendant No.1 has categorically stated that they have relied upon the report of defendant No.2 for taking such an extreme action against the plaintif f. Therefore, since the claim of the plaintif f against the defendant No.1 is based upon the inspection report of defendant No.2, as such the presence of defendant No.2 is very much a necessity and things would only be crystallized after completion of the evidence of defendant No.2 as the plaintif f relies and depends upon the report of defendant No.2 for making out its case of damages against the defendant No.1.
11. It is also a matter of record that the defendant No.2 has already taken a stance in the written statement to the effect that defendant No.2 is not liable for any of the acts as alleged by the plaintif f in its pleadings; that no cause of action had accrued against the defendant No.2 that the suit as framed is not maintainable.
Therefore, the right path for the defendant No.2 was to lead its own evidence to this effect, and not to hold back or retard by filing this application after such lapse of time."
Guidance in this respect can be sought from the case of "ALI S. HABIB and others v. Dr. SHER AFGAN KHAN NIAZI and others" ( 2004 SCMR 1627 ).
10. Adverting to the judgments in the case of "PROVINCE OF THE PUNJAB through Secretary , Sports Government of the Punjab and another v. Messrs QAVI ENGINEERS PVT. LTD. through Director and 2 others" (2007 MLD 89) as well as "NAVEED MERCHANT v. SAFDAR GONDAL and 4 others" (2013 CLD 66), it is observed that in both the said judgmen ts, facts run on entirely different premises to the instant case and as such principles laid down therein are not applicable to the case in hand.
11. As already observed that the powers under Order I Rule 10 (2) "CPC" are discr etionary and in exercise of such powers, the learned Trial Court after due diligence formed an opinion that the petitioners are necessary and proper party to the suit and as such their application seeking deletion of their names was dismissed, so exercise of revisional jurisdiction in absence of any material illegality or irregularity would not be safe for the purposes of administration of justice. Guidance in this respect can be sought from "EJAZ INAYAT v. Rt. Rev. Dr. A.J. MALIK and others" ( PLD 2009 Lahore 57 ).
12. The scope of revisional jurisdiction is circumscribed to the eventualities mentioned in Section 115 of "CPC". The revisional powers are limited and can only be exercised when the petitioner (s) succeed (s) in establishing that the impugned order or judgment suffers legal infirmities, hedged in Section 115 of Code supra. The revisional jurisdiction can only be invoked, if some patent illegality is floating on the surface of record.
13. The petitioners have failed to point out any material irregularity or illegality as per contemplation of Section 115 of "CPC". Resultantly , instant petition, being devoid of any merits, is dismissed with no order as to costs.
14. Cross Objections No.5 of 2014 are arising out of F.A.O No.36 of 2014, which has already been dismissed as withdrawn by way of order dated 14th June, 2019, in view thereof and the reasons recorded in the instant petition, same also stands dismissed.