SHAHID BILAL HASSAN-J: Facts in concision are as such that respondent instituted a suit for possession with permanent and mandatory injunction in respect of land measuring 47-Kanals 17- Marlas, situated in Mauza Charrar, Tehsil Cantt., District Lahore (the suit property) by claiming that he became owner of the suit property by virtue of a sale deed dated 18.07.2009, registered in the execution of a decree for specific performance, obtained by the respondent/plaintiff on 20.03.2008.
The respondent impleaded 101 owners of the houses in Blocks W and Z in Phase-III of DHA, petitioner/DHA. Majority of the defendants/house owners were impleaded in the suit as alleged owners of the houses etc. constructed over the suit property, without even mentioning their names and parentage. The petitioner/DHA contested the suit on various factual as well as legal grounds.
The petitioner also filed an application under Order I, Rule 10, Code of Civil Procedure, 1908 for deletion of names of the defendants No.3 to 103 as they derived their title from the petitioner/DHA and purportedly no useful purpose would be served by dragging them into the litigation which was essentially between the plaintiff and the DHA; that the said application was still pending when on 28.05.2021 the learned trial Court passed an order directing the plaintiff/respondent to file amended plaint by mentioning the names and parentage of 67 defendants and by providing names of 36 defendants. The petitioner filed a review application against the said order dated 28.05.2021. The learned trial Court took up both application under Order I, Rule 10, Code of Civil Procedure, 1908 and review application and dismissed the same vide impugned order dated 19.06.2021; hence, the instant revision petition.
2. Heard.
3. Considering the arguments and going through the record, it is avowed that only those persons are necessary and proper party to the proceedings, whose interest are under challenge in the suit and without their presence matter could not be decided on merits. The necessary party is one who ought to have been joined and in whose absence no effective decision can take place. The object of Order I, Rule 10, Code of Civil Procedure, 1908 is to avoid multiplicity of proceedings, litigation and to ensure that all proper parties are before Court for proper adjudication on merits. Once the Court comes to the conclusion that a person applies for becoming a party is a necessary party then the Court ought to pass an order directing such person to be impleaded as party in the proceedings. It is well settled proposition of law that Court is empowered under this provision to add any person as plaintiff or defendant in the suit at any stage and even in appeals or to delete any person. Joining of party at any stage is binding in all subsequent proceedings until set-aside in legal manner.
Order I, Rule 10 read with section 107 Code of Civil Procedure, 1908 is applicable to appeals and the appellate Court has discretion to substitute or add any person as appellant or respondent provided they are proper and necessary party to the proceedings.
4. In the instant case, in paragraphs No.12 and 14 of the plaint, the respondent has pleaded that:- '12. That the land in question is in illegal and unlawful possession/occupation of defendants and if any notification regarding acquisition of land in question was issued by the defendant No.1 & 2/DHA, even then, the plaintiff is entitled for alternate land in equal status or is entitled for compensation in shape of plots/ payment in lieu thereof as per rules and policy laid down in this behalf.
14. That the defendants are in illegal and unlawful possession of the suit property of the plaintiff and no compensation in shape of alternate land or of developed plots was given to the plaintiff, for which the plaintiff is legally entitled and the defendants are bound under law to compensate the plaintiff in either way suitable to the plaintiff.'
Meaning thereby the main claim of the respondent is against the present petitioners and not against the defendants No.3 to 103 and the respondent/plaintiff would be satisfied if a decree as to compensation or alternate property in equal status is passed in his favour against the DHA, if he succeeds in proving his case as per mandate of law, from whom the other defendants No.3 to 103 purchased the plots, which are comprising of more than 200 Kanals, whereas the disputed property of the respondent is 47-Kanals 17-Marlas and from the contents of the plaint is not clear whether the said defendants No.3 to 103 are in possession of the same after constructing their houses or not? therefore, without such specific particulars the defendants No.3 to 103 cannot be said to be necessary and proper party especially when they are bona fide purchaser after spending a huge amount and without notice. They cannot be dragged into litigation mere on the basis that they purchased the plots from the present petitioner and are in possession of the same after constructing houses. In judgment reported as Dr. Saleem Javed and others v. Mst. Fauzia Nasim and others (2003 SCMR 965), the Supreme Court of Pakistan held that:- 'There is no cavil to the legal proposition that if in absence of a person no effective decree or an order can be passed in the suit such person is necessary party and the suit cannot proceed in his absence and thus the requirement of addition of a party in the suit would be essential if in absence of such party the adjudication of the dispute is not possible: The legal heirs of the deceased in a civil suit to recover the amount of debt due are necessary party but a stranger in such a suit is neither a necessary nor proper party. In nutshell we may point out that if a dispute in a suit can effectively be adjudicated in absence of a person, such person is not a necessary party to be impleaded in the suit.'
5. Under Order I, Rule 10, Code of Civil Procedure, 1908, the Court 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, may order that the name of any party improperly joined be struck out. 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. In judgment reported as Hamza Haneef Awan and 7 others v. Sher Ali Mengal and 9 others (2019 CLC 292), it has been held that:- '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. The object of adding proper party is to avoid needless multiplicity of the suit. It is also well settled that where there is no cause of action against any such defendant, his name may be struck off from the plaint. The plaintiff is dominus litis but the theory of dominus litis cannot be overstretched in the matter of impleading the parties because it is the duty of the Court to ensure that if for deciding the real matter in dispute a person is necessary or proper party the Court can order to implead such person and vice versa can also order deletion of any such person from the plaint who is not found to be proper or necessary party. What makes a person a necessary party is not merely that has relevant evidence to give on some questions involved that would only make him necessary witness. The only reason which make it necessary to make a person a party to an action is so that he should be bound by the result of action.
It has further been held in the said judgment that:- 'A party is not a necessary party simply because a pending action might have some impact on the party's rights, or otherwise affect the party. Instead, a person whose interests may be affected by a decree, but whose presence is not essential in order for the court to adjudicate the rights of others is a proper party but not a necessary party.
Though the plaintiff, in the present case respondent, dominus litis but the theory of dominus litis cannot be is expanded in the matter of impleading the parties because it is the duty of the Court to ensure that if for deciding the real controversy a person is necessary or proper party the Court can order to implead such person and vice versa can also order deletion of any such person from the plaint who is not found to be proper and necessary party. As observed above, no specification of the land occupied by the defendants No.3 to 103 has been given in detail by the respondent rather it is an admitted position on record that the DHA Housing Society is consisting of more than 200 Kanals and main relief has also been claimed by the respondent against the present petitioners, therefore, the defendants No.3 to 103 are, in peculiar facts and circumstances of the instant case, not necessary and proper party, because in their absence the matter can be resolved and an effective decree, if any, can be passed in favour of the respondent, obviously, after due process in accordance with law.
6. In view of the above, it is concluded that hand is accepted, impugned order dated 19.06.2021 is the learned trial Court at the time of passing the impugned order has not considered the true facts of the case and has failed to exercise vested jurisdiction as per mandate of law. Resultantly, the revision petition in set aside, consequent whereof while allowing the application of the petitioners filed under Order I, Rule 10, Code of Civil Procedure, 1908, the names of defendants No.3 to 103 are ordered to be deleted and necessary amended plaint be filed before the learned trial Court by the respondent/plaintiff. No order as to the costs. 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.