SYED ARSHAD ALI, J. The petitioners who are plaintif fs No.1 to 3 before the learned trial Court, have collectively challenged the orders of both the Courts below, rejecting their application for transposition of the plaintif fs No.4 to 6 in the array of defendants.
2. Arguments heard and record of the case was perused.
3. It is evident from record that the matter relates to legacy of Jehangir Khan Babar , the predecessor of the plaintif fs. It is the precise claim of all the plaintif fs No.1 to 6 in their plaint that defendants No.1 and 2 should not inherit the legacy of Jehangir Khan Babar as defendant No.1 was divorced by him in his life time and defendant No.2 was never married to Jehangir Khan Babar .
4. The suit is being contested by the defendants. On 27.07.2021, Kamran Babar the special attorney on behalf of the legal heirs of plaintif f No.4 recorded his statement wherein he has confirmed in his examination-in-chief that defendants No.1 and 2 are the legal heirs of Jehangir Khan Babar and thus has supported the claim of defendants No.1 and 2. When the said Kamran Babar recorded his statement as PW-5 which was also adopted by plaintif fs No.5 and 6, the present petitioners moved an application to the trial Court for their transposition to the array of the defendants. The defendants as well as plaintif fs No.4 to 6 contested the said application. The learned trial Court as well as the learned Appeal Court dismissed the said application.
5. Granted that a party cannot be transp osed from a panel to another panel without his/their counsel, however , keeping in view the scheme of Order 1 of the Civil Procedure Code, 1908, it appe ars that the plaintif fs can remain joint only when they are commonly pursuing their relief and once there is conflict/hostility between the plaintif fs regarding the nature of the relief then obviously the conflicting/hostile plaintif fs should be transposed in the array of defendants. In this regard I may refer to Order 1 Rule 1 and Rule 10 of the Civil Procedure Code, 1908, which reads as under; "Order-1 Rule 1. Who may joined as plaintif f.- All persons may be joined in one suit as plaintif fs in 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 such persons brought separate suits, any common question of law or fact would arise"
Rule 10. Suit in name of wrong plaintif f.-- Where a suit has been instituted in the name of the wrong person as plaintif f or where it is doubtful whet her it has been instituted in the name of the right plaintif f, the Court may at any stage of the suit, if satisfied that the suit has been instituted through a bona fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintif f upon such terms as the Court thinks just.
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 plaintif f or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintif f 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.
6. The bare reading of the above provis ions it manifests that scheme of Order 1 which envisages that all the persons who have common cause of action against the defendant, they can sue jointly . However , in event of hostility of claim between the plaintif fs during the proceeding, the hostile plaintif f may be transposed to the panel of defendant.
The same is also the view of the learned Lahore High Court in the case of "Mian ABDUL WAHEED..V ersus..Mst.
AMTUL HAMID ETC" {PLD 1962 (W .P) Lahore 1 14}, wherein it is held that; "On going through these cases one thing is clear that whenever the ends of justice require, the Court has power to order the transposition and this power can be exercised irrespective of the consent of the party .
In fact it would be wrong to permit a plaintif f to continue as such when he takes up a completely hostile attitude to the other plaintif fs and takes upon himself to support the case of the defendant"
7. In view of the above, this petition is allowed and the impugned order dated 09.09.2021 is set aside and accordingly the plaintif fs No.4 to 6 be transposed from the panel of the plaintif fs to the panel of defendants as proforma defendants. However , since it is an old case, the plaintif fs are not required to amend the plaint and necessary entries be made by the office of the learned trial Court. The evidence so recorded by PW-5 shall be deemed to be defence witness and the plaintif f would be accordingly provided an opportunity to cross examine him after closing his evidence.