KAUSAR SULTANA HUSSAIN, J. Through this order, I shall dispose of an application filed by the learned counsel for the proposed Intervener under Order I, Rule 10, C.P.C. (C.M.A. No. 2326 of 2020), along with an affidavit of the proposed intervener namely Zahid Rasheed son of Abdul Rasheed, praying therein to allow instant application and array/implead the applicant/proposed intervener as Defendant No. 07 in the instant case as the applicant/proposed Intervener is a necessary and proper party being bona fide purchaser of the subject property, so that the matter be heard and decided, considering the stake of all the parties concerned to arrive at just and proper decision in the matter.
2. Notice of instant application was issued against the plaintiff and defendants. The authorized attorney of the plaintiff had filed his Counter Affidavit and in order to rebut the contents of plaintiff's Counter Affidavit the applicant/proposed intervener has filed his Affidavit-in-Rejoinder wherein, he has reiterated the contents of his application and affidavit enclosed therewith.
3. The brief facts of the case are that the Plaintiff is a mentally incapacitated lady over 74 years of age, hence the instant Suit has been filed through her true next friend being her husband M. Helmut Schwaighofer ("Helmut") who appointed Raja Rameez Ali as attorney to act on their behalf in the instant matter in order to protect the Plaintiffs' interests in the suit property. The Plaintiff is a lawful owner of House No. 11-B/1, D.H.A. Phase 1, Karachi, Pakistan, measuring approx. 550 square yards ("the Property"), who primarily used to reside abroad, therefore the Defendant No.1 was hired by the Plaintiff to look after her Property as well as her mother, who resided there. The Defendant No. 1 took advantage of the Plaintiff's mental incapacity and through concocting unlawful documents, has illegally transferred the Property in his name. Defendant No. 1 has been abetted by his wife Defendant No.2. Defendants Nos. 3, 4 and 5 are the relevant authorities who have facilitated the Defendant No.1 in illegal transfer of the property from Plaintiff to defendant No. 1. Defendant No. 6, the Dubai Islamic Bank Pak. Limited apparently provided a home finance facility to the Defendant No. 1 on furnishing the plaintiff's property as collateral. On 24th September, 2017, the Defendant No.1 claimed that he is the owner of the Property, and the same was transferred to him by the Plaintiff.
Upon extreme probing of Defendant No.1, the following documents were obtained which show the illegal transfer of the Property: i. D.H.A. Mutation Letter dated 13.01.2017 ii. Cantonment Board Clifton 'Change of Name' dated 29.07.2016 iii. M.E.O. Permission to Mortgage dated October, 2016 iv Dubai Islamic House Finance Letter 07.11.2016
4. The Defendant No. 1 has used the Plaintiffs' illnesses and committed a fraud of stealing the Plaintiffs' Property. The Mutation Letter dated 13th January, 2017, shows the house was transferred to Defendant No. 1 by Defendant No. 2, being the alleged attorney of the Plaintiff. Defendant No. 1 has intentionally deceived the trust of the Plaintiff, whilst using information which he knew to be sensitive, hence this Suit.
5. I have heard the learned counsel for the applicant/proposed intervener, plaintiff and defendants Nos.1 and 2 at length and also have perused the record with due care and caution.
6. Mr. Rasheed Ashraf, Advocate appearing on behalf of the applicant/intervener Submits that the applicant/intervener has purchased the suit property from its owner and all the formal and codal formalities were complied with and the title of the property has been transferred in the name of the proposed intervener and the proposed intervener is enjoying its peaceful and vacant possession without any let or hindrance. Moreover, original title documents of the property are also in the custody of the proposed intervener. He further submits that it is imperative that the proposed intervener may be impleaded in the pleadings as Defendant No.07 as the proposed intervener is necessary and proper party being bona fide purchaser of the subject property to safe guard and protect his interest in order to arrive just decision in the matter. He also submits that until and unless the accompanying application is granted, the proposed intervener shall be seriously prejudiced and suffer irreparable loss and injury.
7. The applicant/intervener has enclosed copies of agreement to sell dated 01.11.2017, publication in daily 'Down' dated 28.11.2017 and Conveyance Deed along with instant application in support of his claim. He further contended that under Order I, Rule 10, C.P.C., the applicant/ intervener is a proper and necessary party because his presence in the suit is necessary to enable the Court to effectively and completely determine and adjudicate upon the question involved in the suit. Mr. Rasheed Advocate has further argued that the controversy involved in the instant suit is not only confirmed to the questions between the parties of the suit but also include the questions between the parties and the applicant/intervener. He prayed for allowing the instant application and impleading the applicant/intervener as defendant No.7.
8. The learned counsel for the plaintiff Mr. Sarosh Jamil, Advocate has argued his case verbally and also submitted his submissions in writing and enclosed along with his written submission the copies of case laws relied upon by him in support of his contentions. Per Mr. Sarosh, prior to filing of the instant application, the proposed intervener was aware with the proceedings of instant suit as notices had been served upon him at the suit property, where he alleges to reside, as evident from the Bailiff's report dated 06.01.2018, 08.01.2018 and 10.01.2018 and he has wilfully approached this Court belatedly and without any plausible explanation. It is further submitted that the proposed intervener has wilfully delayed in approaching this Court due to mala fide intentions, hence is not liable to obtain any relief; that the matter is at an advanced stage of recording evidence of the witness who resides in Paris (France) and had appeared twice, although maliciously not examined by the learned counsel for defendants Nos. I and 2, if this persists, the witness will be called again all the way from Paris (France), which will cause grave financial burden on the plaintiff, to further appeasement of the defendants Nos. 1 and 2; it is astonishing and bizarre as the defendants Nos. 1 and 2 have themselves admitted in their written statement they had allegedly sold the property to the proposed intervener as such, how can the proposed intervener not be in knowledge of the instant Suit until 2020 when he filed the instant C.M.A., which clearly exemplifies his ulterior motives being in cahoots with the Defendants Nos. 1 and 2 to delay the matter and cause further aggravation on the plaintiff; that the proposed intervener is neither a proper or a necessary party to the instant Suit. The instant suit relates to the defendants Nos. 1 and 2 for illegally taking over the plaintiffs property through fraudulent means, and this usurpation of the property by the defendants Nos. 1 and 2 has been challenged. It is submitted if the proposed intervener wishes to claim against the defendants Nos. 1 and 2 (for fraud, damages etc.), then they may do so in a separate suit which would not have any concern with the Plaintiff as the entire contents of the proposed intervener's assertions have no direct relevance to the plaintiff's claim. It is .apparent the proposed intervener has filed the instant C.M.A. No. 2326 of 2020 with mob fide in an attempt to delay and further unduly complicate the plaintiff's suit in an attempt to thwart justice, and have approached this Court with unclean hands; hence, he is not entitled to any relief whatsoever. It is settled principle of law that equity aids the vigilant and not the indolent and equity will not favour someone who sleeps on his own rights such as the proposed intervener in the instant matter. It is also a settled principle of law that the plaintiff is the 'Dominus Litis' of the suit which also meant master of the suit, to whom a suit belongs and was a person who had real interest in the decision of the case. He can choose who he wishes to sue. A person cannot be added in a suit, if it does not concern the plaintiff and in the instant matter, the proposed intervener has no concern or cause of action with/against the plaintiff. The Courts have repeatedly held in such circumstances an intervener is neither considered proper nor necessary, and should not be joined to the proceedings, therefore the instant C.M.A No. 2326 of 2020 is liable to be dismissed. The learned counsel for the plaintiff has relied upon the following case laws of his contention. i. 2019 MLD 212 (relevant page 213 [a]) ii. 2013 SCMR 602 (relevant page 603 [c] & [d]) iii. PLD 2017 Lahore 588 (relevant page 588 [b]) iv. 2017 YLR 1579 (relevant page 1579 [a]) v. 1992 CLC 700 (relevant page 701 [b] ) vi. 2016 CLD 1790 (relevant page 1792 [c])
9. The learned counsel for the defendants Nos.1 and 2 has not submitted Counter Affidavit of both the defendants Nos. 1 and 2 to the instant application, however, it is the case of the defendants Nos.1 and 2 that they had purchased the suit property from the plaintiff and now they have sold it out to the applicant/proposed intervener.
10. After hearing arguments of both the side and perusal of record it reveals that the applicant/proposed intervener claims himself as necessary and proper party on the basis of the facts alleged by him in his instant application. In order to determine the legal status of the applicant/intervener to a suit it ought to see by this Court that in what previews he can be considered either necessary or proper party or having no concerned to a suit. The definitions of necessary party and proper party in terms of Order I, Rule 10, C.P.C. are provided as under:--
(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 1, 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.
11. The claim of the applicant/intervener in instant application is that he has purchased the suit property from defendant No. 1, who being owner executed a sale agreement with him and after publication a notice, inviting objection from general public at large and subsequently after verification/confirmation and fulfilling all the legal formalities he has paid entire sale consideration to the defendant No. 1, who then handed over peaceful physical vacant possession of the suit property to him on 28.12 2017. Per applicant/intervener he came to know regarding instant suit recently when he has visited DHA office for mutation purpose. The plaintiff claims that she is the owner of the suit house and never sold it out to any one, hence a fake document i.e. the Conveyance Deed dated 29.01.2016 in favour of defendant No.1 may be declared as void and has no legal effect; power of attorney allegedly executed by the plaintiff in favour of defendant No.2 may also be declared as void and of no legal effect and cancel any/all documents which caused transfer the property of the plaintiff to defendants Nos. 1 and 2.
12. The defendants Nos. 1 and 2 have submitted their written statements, wherein they have taken plea that the plaintiff had sold out her house to the defendant No. 1 through her attorney i.e. defendant No. 2 (wife of defendant No.1), who executed Conveyance Deed in favour of defendant No.1 on behalf of the plaintiff. He further contended that after purchasing the house in question from the plaintiff he had sold it out to applicant/intervener through Conveyance Deed dated 28.12.2017 and also handed over its possession to the applicant/intervener.
13. It appears from the pleadings of the parties that the real controversy between the parties is that whether the plaintiff is still the owner of the property in the suit? and whether she ever executed Power of Attorney in favour of the defendant No. 2 to sell her property on her behalf to defendant No.1. The learned counsel for the applicant/intervener emphasized on the point that question involved in the suit are not only confirmed to the question between the parties to the suit but also include the question between the parties and intervener. On the other hand the learned counsel for the plaintiff is of the view on the point that the applicant/intervener cannot be joined as a party to the suit because the question involved in this suit are questions between the parties to the suit and his presence is not necessary for adjudicating upon those questions as he has separate cause of action against defendants Nos. 1 and 2, in case of joining him as party in this suit would amount to insertion of a new cause a action which is not permissible under the relevant law as provided under Order I. Rule 10(V), C.P.C. In the case of Islamic Republic of Pakistan v. Abdul Wali Khan (PLD 1975 SC 463), it was observed at page No. 467, as follows.
"A proper parry is a party whose presence before the Court is necessary to enable the Court to effectually and completely adjudicate upon and settle all questions involved in the proceedings.
The terms "questions involved" include all matters, material to a proper decision of the case but the coject of making such persons parties is to prevent multiplicity of proceedings. The person must, therefore be a person whose interest is likely to be affected even though no relief is claimed against him. This does not, therefore, extend to persons who have no interest which is likely to be affected by the proceedings nor does it embrace persons only generally interested in common with others nor can persons be added as parties so as to set up a new cause of action which does not concern the original parties."
14. In instant matter the applicant/proposed intervener is claiming his transaction of purchasing the suit property from defendant No. 1 through defendant No. 2. The applicant/intervener has not claimed any grievance against the plaintiff, likewise plaintiff has not concerned with the applicant/proposed intervener. If the applicant/intervener has any cause of action against the defendants Nos.1 and 2, he may tile a separate suit against them, rather he be impleaded as a party in this suit. It is well settled law that no person can be permitted to become a party to a suit who has his own cause of action against the party/parties of the suit, wherein he wants to implead as a party and in case if he be allowed to become a party it would amount to add a new cause of action in the suit. It is also well established principle of law that a plaintiff is 'Dominus Litis and ordinarily, no person should be added as party against his / her wishes. At present the instant case is at its advance stage and if the applicant/proposed intervener join the proceedings of the suit it would amount to unnecessary prejudice and embarrass the plaintiff. I, therefore, dismissed the applicant/intervener's application (C.M.A. No 2326 of 2020) on merits with no order as to cost.