' This revision is filed against the order dated 7-1-1982, passed by the learned IIIrd Civil Judge, Karachi. An application under section 151, C. P. C. In Suit No, 1285, allowing the application and thereby setting aside his earlier consent order dated 14-5-1981.
2. The brief facts are that the respondents filed Suit No, 1285 of 1968, against the applicants for recovery of Rs, 7,815.58 being the arrears of rent for the period commencing from 20-1-1964 to 23- 11-1966 with 9% interest per annum thereon in respect of the office premises transferred to them by the Settlement Department wherein Jan Muhammad, the predecessor-ininterest i,e, the father of the applicant No, 1 was recorded tenant and upon whose death the tenancy over the aforesaid premises devolved on three sons, four daughters and widow of the said deceased tenant. The applicants filed a written statement in which they averred that the suit was bad for non-joinder of legal heirs, that is, other two sons and four daughters of the deceased recorded tenant above- named but even then the respondents did not care to implead them as defendants in the suit. The suit was instituted on 9-2.1967, and though more than a decade is past the suit has not made progress. The evidence of the plaintiffs was recorded then the applicants made an application on 22-3-1981, under Order I, rule 10(2), C. P. C. For impleading the remaining two sons and four daughters of the deceased recorded tenant as they were necessary and proper party to effectually and completely adjudicate and settle all the questions involved in the above suit. The said application was allowed by consent on 14-5-1981, and the respondents were directed to file the title page of the plaint adding the said legal representatives of the deceased-tenant in the plaint. The respondents after six months of the aforesaid order, dated 14-5-1981, moved an application under section 151, C. P. C. Before the learned XXVIIIth Civil Judge in the suit with a prayer to recall and vacate the earlier consent order, passed by him whereby the remaining representatives of the deceased were ordered to be joined as defendants. It is pertinent to reproduce paras. 5 and 7 of the application hereinbelow "That the plaintiff's Advocate who after a prolong serious illness has started his work could not properly considered the case and on the representation made to him, the defendants Advocate by consent has obtained orders on the said application as to implead the persons named therein as defendants.
' That under the circumstances, it is evident that the order dated 14-5-1981, impleading the persons named in the application under Order I, rule 10, C. P. C. As defendants is a nullity in law on the ground, inter alia that the order has been obtained by misrepresentation of facts and without any notice to the persons, who have been joined as defendants in the suit."
3. The applicants filed their objections against the said application and denied all and several allegations and contentions of the respondents, however, the learned XXVIIIth Civil Judge has recalled his order dated 14-5-1981, and struck off the names of the newly added defendants in the said suit vide his impugned order dated 17-1-1982.
4. The applicants being aggrieved have preferred this revision against the said impugned order on the grounds mentioned in the Memo. Of revisions application.
5. I have heard Mr. Abdul Aziz Khan, learned Advocate for the applicant. He has contended that the learned XXVIIIth Civil Judge has no jurisdiction to recall his earlier order unless he could show that it was being done within the purview of Order I, rule 10(2), C.. P. C. The impugned order is in conflict with Order I, rule 10(2), C. P. C. And is beyond the scope of section 151, C. P. C. Is being done in the ends of justice or abuse of process of Court.
6. On the other hand, Mr. Abdul Ghafoor Siddiqui, learned counsel for, the respondents has urged that the revision is not competent. The impugned order of the 'learned XXVIIIth Civil Judge is in accord with law.
7. The learned counsel for the applicants in support of his contentions has relied on 1983 SCMR 534, 1983 L L C 1160, PLD 1957 Lah. 1040 and PLD 1973 Kar.
444.
8. The learned counsel for the respondents in support of his contentions has relied on PLD 1957 Lab.
52, PLD 1968 Lab. 1976, PLD 1957 Lab. 1040, PLD 1965 Kar. 633, PLD 1952 Sind 64 and AIR 1935 Sind 194.
9. It is necessary to reproduce Order I, rule 10 (2) & (5) which reads 'as follows :- ' Order I, rule 10(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 plaintiff or defendant, be struck out, that the name of any person who ought ro have been joined, whether as plaintiff 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.
' Order I, rule 10(5).-Subject to the provisions of the Limitation Act, 1877, section 22, the proceedings as against any person added as defendant shall be deemed to have begun only on the service of the summon."
10. The question is whether a suit for rent is maintainable against some of the heirs or successors- in-interest of a deceased-tenant without bringing all the heirs or successors-in-interest on the records. To answer this question, the matter has to be considered from two distinct points of view firstly, from the point of view of the defendants liability and secondly from the point of view of the frame of the suit.
11. As regards the first point these matters, I start with the position that in view of section 2(1) of the then West Pakistan Urban Rent Restriction Ordinance, 1459 it must be considered that the wife and children of deceased tenant come within the definition of the word "tenant" and by inheritance becomes tenant-in-common in the whole of the estate by reasons of the indivisibility of the estate without the Landlord's consent. Each one of such co-tenant has private of estate with the landlord in respect of the whole estate. From this it would seem to follow that each of the joint-tenant or tenant-in-common would be liable to tne landlord for the whole rent. I am accordingly of the view that each one of the legal heirs of the deceased-tenant is liable for the entire rent and there can be no objection to the maintainability of the suit on that ground. I am further of the opinion that except in the case of original tenant or who were parties to the contract, the provisions of section 43 of the Contract Act have no application and need not be resorted to.
12. Turning now to other question, namely, whether the point is as to whether all the persons who are under a joint liability are necessary parties to a suit based upon such liability. The liability of persons upon whom the rights of the original tenant or tenants devolve on the death of the latter is a joint liability to the extent of the interest which devolves and not a joint and several liability in respect of that interest, as the whole body of persons, who succeeds in this way constitute in law but one heirs.
13. Reference may be made to Sir D. P. Mulla on Muhammadan Law, page 36, Article 4 observed as follows : "Each heir is liable for the debts or the deceased to the extent of a share of the debts proportionate to his share of the estate."
' And again at page 31, Article 41 observed as under :- "The heirs succeed to the estate as tenants-in-common in specific shares."
' Section 43 of the Contract Act expressly refers to 'promisor' or 'promisee'. As for the liability under a contract is concerned, it appears to make all joint contracts joint and several. Order I, rule 6, C. P. C.
Provides that the plaintiff may, at his option, joint as parties to the same suit all or any of the persons severally, or jointly and severally, liable on any one contract including parties to bill of exchange, hundis and promissory notes. Cases of joint liability or of point and several liability which do not come within section 43 of the Contract Act or Order I, rule 6, C. P. C. Must be treated as cases for which no exception has been made in this country to the general rule, which obtains in English common with justice, equity and goods conscience.
14. There is, in my opinion, no reason why this general right should be denied in this country to a persons under a joint liability where the liability arsies not under a contract to which Order I, rule 6, C. P. C. Is confined and where the persons are neither severally nor jointly and severally but are only jointly liable.
15. In a case where the liability of the defendants arises not on a contract, but on account of privity of estate, the defendants must insist on all the parties jointly liable to be made party defendants.
All such persons, in my opinion, are not merely proper but also necessary parties. If objection is taken to the maintainability of the suit in their absence the Court had to follow the provisions of Order I, rule 10(2), C. P. C. In. England it has been essence of the procedure since the judicature Acts to take case that a suit shall not be defeated by the non-joinder of the right parties. The same rule has been embodied in Order I, rules 9 and 10, C. P. C. They are necessary for determining whether the liability which is prima fuck joint is also joint and several; for protection the defendants from being made to pay what may have already been paid by others ; for safeguarding against the eventuality of his being defeated in a suit for contribution, as the co-tenant against whom a suit for contribution is brought will not be bound by the result of the earlier suit ; for preventing conflicting decisions as to the character and incidents of the same tenancy being arrived at in different suits, and for various other reasons. That a landlord is bound to implead in his suit all the tenants-in- common from the deceased tenant, who are known to D him is a principle recognised from the earliest times. Bauley, J., in the case of Merceron v. Dawson (I), observed thus as under :- " It may be conceded to the defendant that when the plaintiff is informed of the persons in whom the whole interest is vested they must be sued jointly."
16. This principle has been seldom dissented from in this subcontinent, and there is no reason that I can think of why it should have been departed from. I do not suggest that a decree obtained in the absence of some of the co-tenants is necessarily a nullity ; it is a valid decree and is effective only as a decree for money. But if objection is taken at the right moment as to maintainability of the suit.
I am clearly of opinion that it should be held that the suit is not properly constituted. Under Order I, rule 10(2) the Court is empowered to add a party firstly on the ground that he should have been joined when the suit was originally instituted, and secondly, on the ground that his presence is necessary in order to enable the Court effectively and completely to adjudicate and settle all questions involved in the suit.
17. In the case of Hayat and others v. Amir (2), their Lordships of Supreme Court held that : "As such we are of the view that the relevant date is the one on which the application was filed and not the one on which it was accepted and the order of the Court impleading a new person as party to the suit must be deemed to have effect from the date on which the E application to implead the party was filed."
18. I am bound 1 with the above observations of the Supreme Court and the principles are fully attracted to the facts of this case.
' The learned counsel for the applicant has urged that the application under section 151, C. P. C. Is incompetent as it has neither been alleged nor proved that fraud had been practised on the Court.
On the other hand, the learned counsel for the -respondents has contended that the consent order was passed as result of misrepresentation and, therefore, it was rightly recalled by the learned a XXVIII the Civil Judge. No doubt fraud {{FOOT NOTE}}
(1) (1826) 5 B & C 479 (2) PLD 1982 SC 167 {{FOOT NOTE}} ' vitiates the most solemn proceedings, the Courts have always kept in view the distinction between cases where a judgment is obtained by practising fraud on the Courts and where fraud is alleged to have been practised on a party. In the former case, as held in Grindlays Bank Ltd. v. Murree Brewery Co., Ltd. (1), the Court has jurisdiction to pass an order setting aside the judgment obtained by practising fraud but in the later class of cases, Order XVII, rule 1, C. P. C. Does not furnish a proper remedy for setting aside a decree on the ground of fraud. Even section 161, C. P. C. Cannot come to the rescue of such a party. The learned counsel for the respondent has not been able to convincingly argue that in the instant case fraud was in any manner practised on the Court.
Bearing in mind the principle enunciated above, 1 hold that the application under section 161, C. P.
C. Was incompetent and the impugned order of the learned XXVIllth Civil Judge is misconceived. I am fortified in the above view with the principle laid down by a Division Bench of this Court in the case of Muhammad Bibi and 2 others v. Abdul Ghani and 2 others (2).
19. Before concluding this point of non-joinder, I must state that Mr. Aziz is appearing on behalf of the applicants has rightly pointed out that in the written-statement it has been stated that the suit was bad for misjoinder of parties, the defendants specifically stated as to who are the persons who ought to have been impleaded but are not impleaded.
20. It follows from what I have said above that in my opinion, the suit as framed was not maintainable without impleading as defendants all the parties who are known to be the tenants of the holding. The plaintiff cannot shelter under the plea of ignorance as to who the persons are. The suit, however, cannot be dismissed on that grounds. The learned XXVIIIth Civil Judge rightly allowed application under Order I, rule 10(2), C. P. C. By his order dated 14-8-1981. The impugned order, dated 7-1-1982 is illegal and not in accordance with law, as the applicant opposed the same. The order could not be recalled as the other side opposed it. The learned counsel for the applicants during the course of the arguments undertook to file power for the newly added parties. On such amendment being made in the title page the final arguments be heard, it being noted that the suit will not fail merely because the plaintiffs/respondents may have lost their remedy against the added defendants. The suit is not bad for non-joinder of parties. The defendants are liable for the whole rent but upon payments will be entitled to claim contribution from their co-tenants
21. In the result, the Revision Application No, 51/1982 is allowed. The matter is remanded to the Civil Judge for hearing of arguments in the light of the observations made above.
22. Before I conclude I must appreciate the difficulty put forth by Mr. Abdul Cihaffar Siddiqui who said that the matter is pretty old and certain time limit be put, otherwise this already protracted litigation will have a further chcquerred career with the result of giving long rope to the defendants/ tenants/applicants and no relief to the plaintiffs/landlords in good time. Therefore, 1 am disposed to direct the learned XXVIIIth Civil Judge, Karachi, not only to expedite the suit ; but to dispose it of within six weeks from the receipt of the record and proceedings. Under these peculiar circumstances there would be no order as to costs. {{FOOT NOTE}}
(1) PLD 1954 Lah. 745 (2) PLD 1973 Kar. 444 {{FOOT NOTE}}