' FAKHRUDDIN H. SHAIKH, J.-This is a High Court Appeal from the order of learned Single Judge of this Court in C.M.A. No, 2839/1981 in Suit No, 254/1975 dated 5th October, 1981. By this order the learned Single Judge had granted the above C.M.A. Which was for joinder of respondents Nos. 6 to 9, the intervenors, as parties to the suit. The brief facts of the case which led to the filing of the said C.M.A.
May be briefly stated as under : ' Respondents Nos. 1 to 5 had granted lease for a period of 20 years in favour of the present appellant and three others by a registered document dated 3rd June, 1943, in respect of a plot of land bearing Survey No, 7/1 Sheet No, RB-8 measuring 2,864 Sq. Yards situated at Bunder Road, Karachi. In fact the lease was granted by predecessor-in-interest of respondents Nos. 1 to 5. These respondents have alleged that the said lessees have failed to comply with certain conditions of the lease due to which they had become liable to eviction from the property in question. The conditions which the said lessees including appellant Shaikh Muhammad Matin, are alleged to have violated are specified in para. 6 of the memo. Of appeal. Respondents Nos. 1 to 5, therefore.
Invoked arbitration clause of the said lease agreement and made application under section 20 of the Arbitration Act to this Court with the prayer that the matter may be referred to the Arbitrators.
This application was registered as Suit No, 255/75, and was disposed of by order dated 9th October, 1977 when the matter was referred to the Arbitration of Mr. Mohsin Tayyabali and Mr. S.M.
Raza. In the meantime Mr. S. M. Raza died and an application was moved on behalf of the plaintiff for appointment of another Arbitrator in his place. At this stage the respondents Nos. 6 to 9 filed application under Order I, rule 10, C.P.C.
2. Respondents Nos. 6 to 9 have claimed that they have agreed to purchase the suit property from the plaintiffs i,e, the present respondents Nos. 1 to 5. They, therefore, filed the application being C.M.A. No, 2839/81 praying that they may be joined as plaintiffs in the suit. This application was not contested by the plaintiffs/respondents Nos. 1 to 5. The defendant/ appellant Sh. Muhammad Matin and others had filed counter-affidavit opposing the application of the interveners for being joined as plaintiffs However, the learned Single Judge in the impugned order stated that none of the defendants had filed counter-affidavits and that the learned counsel for the defendants including the present appellant had not objected to the application. Therefore, the application was allowed by the impugned order dated 5th October, 1981.
3. This order has been challenged on behalf of the appellant on the ground that no consent was given by the counsel for the grant of the application of the intervenors and that the intervenors were not party to the arbitration clause in the lease agreement in question, therefore, they had no locus standi to be impleaded as parties in the arbitration proceedings.
4. So far as the question of consent is concerned, Mr. Z. U. Ahmed learned counsel for the appellant has argued that neither any consent was given for the grant of the application nor it is correct that the intervener's application was not contested by filing objections. He has on the contrary drawn our attention to the objections filed to the interveners' application on behalf of the present appellant who has also filed an affidavit in support of the objections. It has, therefore, been argued that the observations of the learned Single Judge that no objections have been filed to the intervenors' application are not correct. It appears that the counsel who represented the appellant and other co-lessees before the learned Single Judge did not point out the objections and the counter-affidavits which were very mach on the file of Suit No, 254/1975.
5. It may be stated here that appellant Muhammad Matin has also filed a separate suit being Suit No, 115/81 against the present plaintiffs for specific performance of sale agreement in respect of the same property. This suit was based on a clause in the original lease deed that if the respondents intended to sell the property in question, the appellant and the co-lessees shall have the first option to purchase the same. In this suit also the present interveners i,e,, respondents Nos. 6 to 9 had filed an application for being joined as a party. Mr. Z.U. Ahmed learned counsel for the appellant has stated that it was in that suit that concession was made in favour of grant of the interveners, application and that since both the suits were fixed on the same date, hence perhaps, due to misunderstanding, the learned Single Judge recorded the consent of the counsel in the present 'suit also in respect of grant of the application of the interveners (respondents Nos. 6 to 9).
6. In our view the question of consent is not very relevant when the consent relates to a point of law which is to be decided on its own merits irrespective of the consent of the counsel. The question involved in the present case is whether the interveners, who were not parties to the arbitration clause, were entitled to be joined as parties in the arbitration proceedings. This is purely a legal question and if the Court ultimately holds that the strangers are not entitled to be imp leaded as parties in arbitration proceedings, then in spite of the consent of the learned counsel in support of plea of the interveners, the claim of the interveners can be rejected. The consent of counsel on a point of law is not binding on his client. The appeal, therefore, cannot be held to be not maintainable on the ground that the impugned order was a consent order.
7. The point in question which falls for determination is whether strangers who are not parties to an arbitration agreement, can maintain an application under Order I, rule 10, C.P.C. For being joined as parties simple on the ground that during the pendency of the proceedings, they had agree to purchase the property in question from the owners i,e,, one of the parties D to the arbitration proceedings. It may be stated that Suit No, 254/75 was registered on an application filed by respondent Nos. 1 to 5 under section 20 of the Arbitration Act. Under this section what the Court is required to do is to decide the question of existence of the arbitration agreement and if it comes to the conclusion that the arbitration agreement existed, then it shall make a reference to the Arbitrators appointed by the parties whether in the agreement or otherwise or appointed by the Court itself under subsection (4). After reference of the case to the Arbitrators, the Court becomes functus officio except for limited purposes envisaged by the Act such as enlarging time for making award or filling up vacancy of an Arbitrator created by death of an Arbitrator or otherwise, so far as the arbitration proceedings are concerned ; because after the reference, the arbitration "shall proceed in accordance with, and shall be governed by, the other provisions of this Act so far as they can be made applicable", according to subsection (5) of the Arbitration Act. In this connection reference may be made to the case of Indra Narayan Kundu v. Nani Gopal Banerjee, in which Edgley, observed as under : "Once a dispute goes to arbitration the authority of the Court to proceed with the suit is suspended and it cannot, so long as the reference stands, deal with the subject-matter of the reference."
' In this connection Mr. Mushtaq Ahmed Memon learned counsel for the respondents has referred to subsection (3) of section 31 of the said Act, which provides that all applications regarding the conduct of arbitration proceeding or otherwise arising out of such proceedings shall be made to the Court where an award has been or may be filed and to no other Court. It has been argued that the application of the intervenors is covered by the above subsection and that the Court is competent even after making the reference, to pass an order on the intervenors' application. We are unable to agree with the learned counsel. Application of the intervenors for being joined as a party does not relate to conduct of arbitration proceedings nor does it arise out of the arbitration proceedings. Therefore, it cannot be argued by any stretch of imagination that application of strangers to arbitration agreement, for being joined as parties to proceedings before the Arbitrator can be said to fall under subsection (3) of section 31.
' Mr. Mushtaq Ahmed Memon learned counsel for the respondents has further argued that the intervenors are interested parties inasmuch as they have agreed to purchase the disputed property from respondents Nos. 1 to 5 and that they are likely to be affected by any award which is made by the Arbitrators. It has further been argued that the intervenors have become persons claiming through owners of the property by virtue of the sale agree. Ment and, therefore, any award which is made against the owners shall be binding upon the intervenors and as such they are entitled to be heard on the principle of natural justice before an award is made by the Arbitrator.
We are unable to agree with Mr. Mushtaq Ahmed Memon. The sale agreement executed in favour of the intervenors, does not confer any right upon them except to file a suit for specific performance against the vendors if the latter refuse to perform their part. By virtue of the sale agreement the intending purchasers do not acquire any vested right in the property itself. They acquire right only against the intending vendors to maintain a suit either for specific performance or for damages for breach of contract. We are unable to subscribe to the view that by virtue of the sale-agreement in their favour, the intervenors have acquired an interest in the property in question or that they have stepped into shoes of the intending vendors i,e,, respondents Nos. 1 to 5.
' In view of this legal position we are unable to agree with the learned Single Judge that the intervenors namely, respondents Nos. 6 to 9 were at all necessary parties or were entitled to be joined as parties in the proceedings before the Arbitrators. The appeal is, therefore, allowed and the application of the intervenors for being joined as parties to the proceedings is dismissed ; but in the circumstances of the case there shall be no order as to costs.
AIR 1946 Cal, 4261 1