SYED HASAN AZHAR RIZVI, J. This application is filed to delete the defendant No.2(a) from the array of the defendants in the proceedings of this suit on the ground that admittedly there is no privity of contract in between the plaintiff and defendant No.2(a). Defendant No.2(a) does not conduct its business or have any operations within the jurisdiction of this Court and the defendant No.2(a) has been impleaded by the plaintiff in order to vex and harass the defendant No.2(a). As per learned counsel for the defendant No.2(a), the plaintiff has no cause of action against the defendant No.2(a). In support of the present application affidavit of Paul Roeder, Senior Vice President and Deputy General Counsel/authorized officer of the defendant No.2(a) has been filed wherein it is pleaded that defendants Nos.1, 2(a) and 2(b) are independent legal entities, operating in separate geographical and legal jurisdiction. Plaintiff was never induced by the defendant No.2(a) to enter into a contractual relationship with any of the defendants. Assertions of the plaintiff taken in the plaint were denied being false and activated by malice. It is further pleaded that the defendant No.2(a) is not a necessary or proper party to the instant suit.
2. Counter affidavit of Mian Asad Omer Maggo leally constituted attorney of the plaintiff was filed to the present application wherein it is stated that the defendant No.1 is subsidiary of the defendant No.2(a) and the plaintiff was aggrieved by the defendant No.2(a)'s failure to take any action against the misconduct and malpractices of the defendant No.1. It was further averred in the counter affidavit that the defendant No.2(a) was directly responsible for issuing policies and standards of business conduct for its employees, subsidiaries, agents and business partners.
3. Affidavit-in-rejoinder to the counter affidavit to the application was filed wherein the averments of the counter affidavit were vehemently denied. It was stated in the affidavit-in-rejoinder that the plaintiff has impleaded defendant No.2(a) with the intent to blackmail the defendant No.2(a).
Defendant No.2(a) did nothing to induce the plaintiff into entering into a relationship with the defendant No.1.
4. Learned counsel for the defendant No.2(a) has drawn attention of this Court to para-2 of the plaint where it is mentioned that the plaintiff having relationship with the defendant No.1, a company based in Singapore whereas the defendant No.2(a) is a company of United States of America. Learned counsel for the defendant No.2(a) then has referred to the agreement (at page- 45 of the Court file) showing that the plaintiff had HP Reseller Business terms with the defendant No.1. Learned counsel further states that no document has been attached with the plaint by the plaintiff showing that the defendant No.2(a) is a shareholder of the defendant No.1 or having any privity of contract with the plaintiff. Per learned counsel for the defendant No.2(a), the defendant No.2(a) has no business in Pakistan. He further submits that the defendant No.2(a) is neither necessary nor proper or essential party to the effective disposal of the present suit. He placed reliance upon the case of Tajuddin v. Ferozuddin Ahmed reported in 2010 YLR 256, the case of Mari Gas Company Ltd. v. Byco Petroleum Pakistan Ltd. reported in PLD 2013 Sindh 314 and the case of Muslim Commercial Bank Limited v. Sajida Naqi Riaz reported in 2019 CLC 1371.
5. Conversely, learned counsel for the plaintiff ureed that, plaintiff was appointed as the authorized dealer of HP in Pakistan. On 16.08.2010 defendants Nos.3, 4 and 5 in present suit were also appointed resellers of the defendant No.1 for HP products in Pakistan. Plaintiff contracted with the defendant No.1. Defendants Nos. 3, 4 and 5 were illegally selling goods of HP less than the plaintiff.
Defendant No.2(a) is a foreign company. He has referred to pages 439 to 459 the correspondence whereby the plaintiff lodged complaints to the defendant No.2(a) regarding patronizing of illegal trade by HP. Per learned counsel for the plaintiff, the plaintiff has sought relief of damages against the defendants jointly. Learned counsel for the plaintiff has referred to paragraph-27 of the petition available at page-31 of the Court file.
6. Heard Mr. Rashid Mehar advocate for the defendant No.2(a), Mr. Furqan Ali advocate for the plaintiff and carefully perused the material available on record coupled with case law.
7. Defendant No.1 in para-2 of their written statement filed on 17.01.2014 (available at page-541 of the Court File) has stated that defendant No.2(a) has been wrongly impleaded for mala fide reasons and the plaintiff did not, at any material time, has a contractual relationship with defendant No.2(a). In para-4 of the written statement of the defendant No.1 it is stated that plaintiff was awarded certification in November, 2009, based on the establishment by him of Hewlett- Packard brand stores in Pakistan. It to be noted that a certified reseller is nothing more than a Hewlett-Packard authorized reseller. Such an authorized reseller is able to seek and obtain discounts or commissions without the existence of a definitive contract. Such certified resellers purchases products from Hewlett-Packard Tier 1 partners/resellers. Tier 1 partners, under valid contracts, are authorized to directly import from the defendant No.1, maintain a stock locally and sell the same. The plaintiff was appointed as Tier 1 partner on 16.08.2010. It is further stated in para- 5 of the written statement of the defendant No.1 (available at page-545 of the Court File) that despite of the termination of the TI, the plaintiff continued to retain signage, illegally holding himself out in the vein of a Hewlett-Packard TI partner Plaintiff has not sold any HP product in 2013 as the plaintiff has not procured any products from HP TI partners. In para-10 of the written statement of the defendant No.1 it is stated that the State Bank of Pakistan did not communicate or correspond with the defendant No.1. In any event, the defendant No.1 is an entity outside the jurisdiction of the State Bank of Pakistan. It is further stated that this Court does not exercise jurisdiction in respect of the plaintiff's claim arising out of the HP TI contract, as clause (25 g) of the said contract expressly states that "Disputes arising in connection with this Agreement will be governed by the laws of the country and locality in which HP accepts the order, and the courts of that country will have exclusive jurisdiction except that HP may, at its option, bring suit for collection in the country where the Reseller is located".
8. In the case of Mari Gas Company Ltd. supra, it is held that:- "6. Under Order I, Rule 10, C.P.C. the court may at any stage of proceedings either upon or without the application of either party and on such terms as may appear to the court to be just, may order that the name of any party improperly joined be struck out. This provision deals with the matter of adding and deleting the plaintiff and defendant and empowers the court with judicial discretion in this regard. Under Order I, Rule 10, C.P.C., two classes of persons namely, necessary party and proper party can be joined. When no relief was sought against a person otherwise his presence was not necessary to enable the court to settle the controversy, such person may not be added as defendant. A party should be joined to the suit if its presence is required for complete and conclusive adjudication of the suit. The necessary party is the one whose presence on record is enjoined by law or in whose absence no effective decision can be given. If a dispute can effectively be adjudicated in absence of a person, such person is not a necessary party. While proper party is a person if its presence before the court is necessary to enable it to effectually and completely adjudicate upon and settle the questions involved in the suit and it is not necessary that the plaintiff must seek relief against such proposed defendant." ,
9. In the case of Tajuddin supra, it has been held that:- "A person must either be a necessary or a proper party to a suit and if not, then he is stranger to the proceedings and ought not to be made .a party thereto. It may firstly be noted that Order I, rule 10(2), C.P.C., specifically empowers the court to strike out any party, including a defendant, at any stage of the proceedings either upon or without the application of any party thereto.
A proper party is of course a party whose presence may be necessary in order to enable the court effectually and completely to adjudicate upon, and settle all the questions involved in the suit."
10. In the case of Muslim Commercial Bank Limited supra, it has been held that:- 10.............................. Therefore, the purpose of an order for striking out parties under Order I, Rule 10(2), C.P.C. is primarily to address mis-joinder of parties and that too as a step towards adjudication, and not to be the formal expression of adjudication by itself which is to be done by way of a decree. In the circumstances of the case, when there was no motion before the Court under Order I, Rule 10(2), C.P.C., nor had the Court put the parties to such notice suo motu, once the learned Single Judge concluded that the plaint could not be rejected, then the application for such rejection should have been put to rest at that.
In the case of Corporation of Calcutta v. Radha Krishana Devi, [AIR (39) 1952 Calcutta 222], it was held that Sub-Rule (2) of Rule 10 of Order I, C.P.C. relates to a case where a defendant has been improperly joined, that is to say, where the defendant against whom no relief can be claimed has been made a defendant, and it is said that the name of such person should be struck out. It was further observed that a case involving mis-joinder of causes of action is different from a case where a person had been made a defendant against whom no relief is claimed or can be claimed; and that Order I, Rule 10(2), C.P.C. can be invoked for mis-joinder of defendants and- not for mis-joinder of causes of action.
In the case of Manohar Lal v. Roshan Lal (AIR 1938 Lahore 799), four persons had been sued in the trial court. The trial court came to the conclusion that the claims of two persons should be dismissed, but instead of dismissing of their claim by means of a decree, the trial court proceeded to strike out their names under Order I, Rule 10(2), C.P.C. on the ground that they had been improperly joined It was held that the trial court had misunderstood the purpose of Order I, Rule 10, C.P.C. in that, when the said Rule provides that the Court may strike out a party who has been improperly joined, it refers to the suit as framed, and it was not intended that the claim of a necessary party should be first tried and then his name should be struck off on the ground that his claim merited dismissal before any decree has been passed..............
11. In the case Nazar Gul v. Maymar Housing Service (Pvt.) Ltd. and 4 others reported in 2019 MLD 212 it has been observed that:- "13. The distinction between a 'proper party' and a 'necessary party' to a suit in terms of Order I, Rule 10, C.P.C., and the prerogative of the Court to add parties to a suit, is settled law, which can be summarized as follows:
(i) a 'necessary party' is one who ought to have been joined and in whose absence no effective decree can be passed;
(ii) the non joinder of a necessary party can be fatal to the suit;
(iii) a 'proper party' is one whose presence before the Court is necessary in order to enable the Court effectually and completely to adjudicate upon and settle all questions involved in the suit;
(iv) a person can be joined as a proper party even though no relief is claimed against him but the primary object of impleading a proper party is to avoid multiplicity of legal proceedings and to determine effectually and finally all questions arising in the proceedings. Such person must, therefore, be a person whose interest is likely to be affected even though no relief is claimed against him;
(v) persons cannot be added as parties so as to set up a new cause of action which does not concern the original parties;
(vi) the power of the Court under Order I, Rule 10(2), C.P.C. to add parties is generally not a question of initial jurisdiction of the Court but of a judicial discretion which has to be exercised in view of all the facts and circumstances of a particular case;
(vii) while adding a party, the Court may put the party to terms;
(viii) if a person does not qualify as a necessary or a proper party, then the Court has no jurisdiction to add him as a party under Order I, Rule 10(2), C.P.C.;
(ix) in exercising power under Order I, Rule 10(2), C.P.C. the Court ought to see that it does not load the record with the parties wholly shown to have no interest in the suit, and that the trial of the suit is not embarrassed by the simultaneous investigation of unconnected controversies.
12. In the case of Razia Begum v. Iqbal Begum and 7 others reported in PLD 1957 (W.P.) Lahore 1040 wherein it has been observed that:- "The Court is vested with the jurisdiction of striking off the name of a party only on the condition that such a party is improperly joined in the suit. The impropriety referred to in this sub-rule obviously means that the party has no interest in the suit and has no connection whatever with the reliefs claimed in the suit. It appears to me that the learned Civil Judge did not apply his mind at all to this aspect of the case. In his order he did not say that the defendants Nos. 6 to 8 had been improperly joined and in fact, in the circumstances of the case, he could not have said so.
Little did he realize that it was an administration suit in which all the heirs of the deceased were as much interested in the estate of the deceased as the plaintiff herself and that these defendants were not pro forma."
13. In view of facts circumstances and case law, discussed above, present application is granted and the name of the defendant No.2(a) is struck out/deleted from the array of the defendants in the present suit. Plaintiff is directed to file amended title to the present suit. 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.