1. ' Writ Petition No.4054/82, Huma Ghauri v. Zaheer-ud-Din and 4 others, Writ Petition No.4056/82 Mst.
2. Rabab Ghauri v. Zaheer-ud-Din and 4 others, Writ Petition No.4057/82 Asif Bashir Farooqi v. Zaheer - ud-Din and 4 others, Writ Petition No.4058/82 Mr.G.M.D.Ghauri v. Zaheer-ud-Din and others, Writ Petition No.4059/82 Mst. Jamila Khanum Ghauri v. Zaheer-ud-Din and others, Writ Petition No.4060/82 Mst. Rukhsana Ghauri v. Zaheer-ud-Din and others, Writ Petition No.4061/82, Shakil Ahmad v. Zaheer-ud-Din and others, Writ Petition No.4062/82, Mst. Alia Farooqi (minor) v. Zaheer- ud-Din and others, Writ Petition No.4065/82 Luqman Sharaf Ghauri v. Zaheer-ud-Din and others which arise out of a similar/identical facts and also raise a common question of law for decision, can be conveniently disposed of by one order. Facts relevant and necessary for decision of these nine Writ Petitions are:-
(1) In Writ Petition No.4054/82, Mst. Huma Ghauri (minor) daughter of Akram M.Ghauri purchased a piece of land fully described in the plaint from Muhammad Yaqoob defendant No.2 on the assurance of Zaheer-ud-Din defendant No.1 and Sardar Muhammad a village Patwari defendant No.3. It has been stated in para. 7 of the plaint that all the defendants namely Zaheer-ud-Din, Muhammad Yaqoob and Sardar Muhammad were fully aware of the fact that defendant No.2 i.e. Muhammad Yaqoob was not the owner of the land in dispute. Halqa Patwari defendant No.3 in collusion with the remaining defendants issued a forged and bogus Jamabandi wherein defendant No.2 was recorded as owner of the land. Defendant No.1 actively introduced defendant No.2 to the plaintiff's grandfather and assured that the land belonged to him and that he was competent to transfer. All the three are alleged to have committed fraud upon the plaintiff. The plaintiff on the averments made in the plaint filed a claim for recovery of Rs.20,000 jointly and severally against all the three defendants in the civil Court at Lahore. This suit was resisted by the defendants. Vide order dated 12-3-1980, learned Civil Judge before whom the suit was sub judice struck off the names of defendants Nos.1 and 3 i.e. Zaheer-ud-Din and Sardar Muhammad on the ground that the perusal of the plaint showed that the plaintiff had no cause of action against the above-noted two defendants. After the names of these defendant were struck off, the trial Court proceeded to frame the following issues:- ' Whether the plaintiff is entitled to recover a suit amount from the defendants? O.P.P.
(ii) Relief.
3. ' After Settlement issues, the suit was adjourned for evidence. Order, dated 12-3-1980 passed by learned Civil Judge, Lahore, was assailed in revisional jurisdiction before learned Additional District Judge, Lahore. It did not succeed and was dismissed on 22-3-1980.
(2) In Writ Petition No.4056/82, on almost similar facts, Mst. Rabab Ghauri, minor, through G.M.D.Ghauri, her grandfather, as next friend, instituted a claim for recovery of Rs.20,000 against the same set of defendants in civil Court at Lahore. In this suit also, learned Civil Judge, vide order dated 12--3-1980 struck off the names of Zaheer-ud-Din and Sardar Muhammad,from the array of the defendants and after doing so, framed the following issues:-
(i) Whether the plaintiff is entitled to recover the suit amount from the defendant.
4. (ii)
5. The suit was then adjourned for evidence. Revision filed against order dated 12-3-1980 did not succeed and was dismissed by learned Additional District Judge on 22-3-1980.
(3) In Writ Petition No.4057/82, Asif Bashir Farooqi, minor son of Col. K.B.Farooqi, through his grandfather Mr.G.M.D.Ghauri, instituted a similar suit for recovery of Rs.20,000 against the same set of defendants on identical facts. Here too, the learned Civil Judge on 12-3-1980 struck off the names of the two defendants, Zaheer-ud-Din and Sardar Muhammad. Revision filed was dismissed on 22-3-1980 by learned Additional Sessions Judge, Lahore.
(4) In Writ Petition No.4058/82, Mr.G.M.D.Ghauri Writ petitiner/ plaintiff, filed a civil suit for recovery of Rs.20,000 against Zaheer-ud-Din, Akhtar Ali and Sardar Muhammad. Cause of action for bringing a suit for recovery of the amount of Rs.20,000 against the three defendants jointly, has been stated in paras. Nos.5 and 6 of the plaint. Through an identical order, learned Civil Judge struck off the names of Zaheer-ud-Din and Sardar Muhammad defendants Nos.1 and 3 from the defendants' list vide order dated 12-3-1980. Revision filed by the plaintiff against the said order did not succeed and was dismissed on 22-3-1980.
(5) In Writ Petition No.4059/82, Mst. Jamila Khanum Ghauri is the purchaser of land from Akhtar Ali Shah, defendant No.2 in the suit. Defendants Nos.1 and 3 namely Zaheer-ud-Din and Sardar Muhammad have been joined in the suit as co-defendants with Akhtar Ali Shah. In para. 7 of the plaint, necessary facts disclosing cause of action in the suit for recovery of Rs.20,000 jointly and severally, have been stated. In this suit also, the learned Civil Judge vide order dated 12-3-1980 struck off the names of the defendants on the similar grounds. Revision filed was dismissed on 22- 3-1980 by the learned Additional District Judge.
(6) In Writ Petition No.4060/82, Mst. Rukhsana Ghauri, minor, is the purchaser of land from Muhammad Yaqoob, defendant No.2. On identical facts which have been narrated in the earlier suits, Zaheer-ud-Din and Sardar Muhammad, a village Patwari, have been impleaded as co- defendants with Muhamamd Yaqoob. Claim has been made against them jointly and severally.
6. Necessary facts making them so liable have been stated in paras. Nos.6 and 7 of the plaint.
7. Learned Civil Judge, as in other suits, vide order dated 12-3-1980, struck off the names of Zaheer- ud-Din and Sardar Muhammad and ordered that the suit shall proceed against vendor Muhammad Yaqoob alone. Following issues have been framed in the suit for trial and disposal of the civil suit:-
(i) Whether the plaintiff is entitled to recover the suit amount from the defendant? O.P.P.
(ii) Relief.
8. The suit then had been adjourned for evidence. Revision against the order was dismissed by learned Additional District Judge on 22-3-1980.
(7) In Writ Petition No.4061/82, Shakil Ahmad has filed a suit for recovery of Rs.20,000 against Zaheer-ud-Din Akhtar Ali and Sardar Muhammad in the civil Court. Facts stated in the plaint may not be narrated in detail. In brief, facts construing the cause of action against the three defendants have been narrated in paras. Nos. 6 and 7 of the plaint. Vide order dated 12-3-1980, learned Civil Judge has struck off the names of defendants Nos.1 and 3 as having been improperly joined and allowed the suit to continue against the sole defendant Muhammad Yaqoob vendor of the property. After striking off the names of two defendants, following issues were framed:-
(i) Whether the plaintiff is entitled to recover the suit amount from the defendant.
(ii) Relief.
9. Revision preferred by the plaintiff against order dated 12-3-1980 was dismissed by learned Additional District Judge, Lahore on 22-3-1980.
(8) In Writ Petition No.4062/82, Alia Farooqi, minor daughter of Col.K.B.Farooqi, through her grandfather filed suit for recovery of a sum of Rs.20,000 as damages against Zaheer-ud-Din, Sardar Muhammad son of Ali Muhammad and Sardar Muhammad son of Gulab. The necessary facts disclosing the cause of action against all the defendants have been given in paras. Nos.6 and 7 of the plaint. The suit was resisted by the defendants. Vide order dated 12-3-1980 learned Civil Judge found defendants Nos.1 and 3 to have been improperly joined and consequently struck off their names from the plaint. The suit was allowed to continue against Sardar Muhammad son of Ali Muhammad alone. Thereafter, issues on merits were framed and the suit adjourned for evidence.
10. Revision filed by the plaintiff did not succeed and was dismissed on 22-3-1980 by the learned District Judge, Lahore.
(9) In Writ Petition No.4065/82, Luqman Sharaf Ghauri minor son of M.Ikram Mohy-ud-Din Ghauri brought a suit for recovery of sum of Rs.20,000 as damages against Zaheer-ud-Din, Muhammad Yaqoob and Sardar Muhammad. Necessary averments have been made against all the three defendants in paras. Nos.6 and 7 of the plaint. In this suit also, the learned Civil Judge vide order dated 12-3-1980 struck off the names of the defendants on the similar grounds. Revision filed was dismissed on 22-3-1980 by the learned Additional District Judge.
2. In all these nine civil suits, practically by one order dated 12-3-1980, the names of defendants Nos.1 and 3 Zaheer-ud-Din and Sardar Muhammad, a Halqa Patwari have been struck off from the array of defendants by learned Civil Judge solely on the ground that they have been improperly joined and no cause of action was disclosed against them in the plaint. In nine separate revisions preferred by the aggrieved plaintiffs, learned Additional District Judge, also by one order, copy whereof has been placed on the file of remaining revision petitions, refused inteference and maintained the order passed by the learned Civil Judge. Nine separate constitutional petitions have been filed to assail the order dated 12-3-1980 passed by the learned Civil Judge and maintained in revision by the learned Additional District Judge with prayer to declare them to have been passed without lawful authority. These nine Writ petitions raise an important question of law whether learned Civil Judge acting under Order I, rule 10(2), C.P.C. without affording an opportunity of substantiating the averments made in the plaint against the defendants could have stuck off the names of some of the defendants on the ground that they had been improperly joined. In all the nine suits, in the relevant paragraphs of the plaints, definite allegations had been made against Zaheer-ud-Din and Sardar Muhammad, a village Patwari stating that the fraud has been perpetrated upon the plaintiff by the vendor in close collaboration with these two gentlemen. On the basis of the averments so made, they were sued jointly for the acts committed by them. The question of law is that whether the Court in exercise of its jurisdiction under Order I, rule 10(2), C.P.C. could strike out some of the defendants from the array of parties when definite allegations had been made against them in the plaint. Costs awarded vide order dated 14-10-1984 have been paid to Mr.Khalil-ur-Rehman, Advocate for the respondents.
3. I have heard learned counsel for the parties and examined their contentions which are purely legal in character. It has been contended by Mr.Muhammad Sarwar Awan, Advocate who represented the Writ petitioners that for making the necessary order under Order 1, rule 10(2), C.P.C., the contents of plaint alone had to be looked into and the Court was not justified to travel beyond the four corners of the plaint for finding out whether a party had been improperly joined and was thus to be struck out. He submitted that whether a party is to be struck out or not is to be determined on the basis of the averments in the plaint. In the instant case, he contended, the trial Court acted without jurisdiction in striking out the names of two necessary defendants against whom the plaintiff had a clear cause of action, facts in support whereof were fully narrated in the plaint. The plaintiff in each suit was entitled as a matter of right to substantiate by requisite evidence the averments made in the plaint this right could not have been denied to him by taking recourse to Order I, rule 10(2), C.P.C., for striking off the names of the two defendants..
4. Learned counsel for the respondents however, stated that per provisions of Order I, rule 10(2), C.P.C., the Court had power and jurisdiction to strike out the name of a person who had been imporperly or unnecessarily joined as a defendant in the suit. The power given to the Court under Order I, rule 10(2), C.P.C., has been properly exercised in the facts and circumstances of these nine civil suits. Sardar Muhammad village Patwari and Zaheer-ud-Din are not shown to have colloborated in the alleged act of fraud committed by the vendor. Contents of the plaint according to learned counsel itself revealed that the plaintiff in civil suit had no legal and valid cause of action against the defendants Nos.1 and 3 whose names have been struck out by the Court.
11. Impugned orders have thus been defended by him on a reference to the provisions of Order I, rule 10, C.P.C. Order I, rule 10 reads:- "Suit in name of wrong plaintiff.-- Where a suit has been instituted in the name of the wrong person as plaintiff or where it is doubtful whether it has been instituted in the name of the right plaintiff, the Court may at any stage of the suit, if satisfied that the suit has been instituted through a bona fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as the Court thinks just.
12. Court may strike out or add parties.-- (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, and that the name of any person who ought to 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.
(3) No person shall be added as a plaintiff suing without a next friend or as the next friend of a plaintiff under any disability without his consent.
13. Where defendant added, plaint to be amended.-- (4) Where a defendant is added, the plaint shall, unless the Court otherwise directs, be amended in such manner as may be necessary, and amended copies of the summons and of the plaint shall be served on the new defendant and, if the Court thinks fit, on the original defendant.
(5) Subject to the provisions of the Indian 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 summons.
14. ' Sub-rule (2) of rule 10 of Order I, C.P.C., no doubt empowers the Court to strike out the name of any party, whether plaintiff or defendant who had been improperly joined in the suit. It further empowers the Court to make an order that a necessary party left out be joined as plaintiff or defendant in the suit but while striking out the name of a party joined by the plaintiff, averments made in the plaint cannot be ignored. If looking at the plaint, it transpires that no relief has been claimed against a defendant or that he has been unnecessarily joined then of course, the Court will be perfectly within its competence to strike out the name of such person from the array of. defendants. Conversely when there are specific allegations made in the plaint against a party, proof of which would entitle the plaintiff to a relief against such a party, the Court in seizin of the suit cannot legitimately order that the name of such a party be struck out without allowing the plaintiff a right to substantiate the averments made in his plaint. Effects of striking out the names of a party under Order I, rule 10, C.P.C. have been differently stated by the superior Courts. However, since this point does not arise for decision in the present case, I have refrained from giving my considered opinion on this aspect of the matter. In Malik Mumtaz Ali v. Pakistan through Secretary Refugees and Works Government of Pakistan Rawalpindi and 3 others PLD 1971 Lah. 395, Mr. Anwar-ul-Haq, C.J. speaking on the powers of Court under Order I, rule 10, C.P.C. to strike out or add necessary parties observed:- "Undoubtedly, rule 10 of Order I gives wide powers to the Court to strike out or add parties who ought to 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, yet this power is not to be exercised in a manner so as to change the character of the suit. The complete and effectual adjudication of the question involved in the suit as mentioned in the sub-rule (2) of rule 10 refers to the suit as instituted and not to a new cause of action presented by the defendant or the respondent who seeks to be transposed as a plaintiff or a petitioner."
15. Case of Manohar Lal and others v. Foshan Lal and another AIR 1938 Lah. 799, in my estimation comes nearest to the point debated in these Writ petitions and provides a sufficient and correct answer to the problem posed. Mr.Justice Beckett of the Lahore High Court on Order I, rule 10, C.P.C., said:- "When Order I, rule 10 provides that the Court may strike out the name of a party who has been improperly joined as plaintiff or defendant, these words have reference to the suit as framed and it cannot possibly be suggested that any person who claims to be the owner of an enquity of redemption is not a proper party to a suit for redemption of the mortgage. It was certainly never intended that the claim of a necessary party should be first tried and that his name should then be struck off the record on the ground that his claim ought to be dismissed before any decree has been passed."
16. 'Plaints the several suits as presented claimed decrees for a sum of certain amount as damages against the three defendants jointly and severally. Contents of the plaint did disclose a cause of action against A the three defendants. Whether or not, the plaintiff would succeed ultimately to substantiate the averments so made and succeed in his/her suit was not a matter to be taken up at this stage under Order I, rule 10 (2), C.P.C. In case averments are not proved, the Court would dismiss the suit but conversely in case the plantiff succeeds, to prove his claim, the suit would be decreed as prayed for. Therefore, for exercising powers under Order I, rule 10(2), to strike out the names of a party allegedly improperly joined, contenst of the plaint as then stand can alone be taken notice of. Looked at the matter from this angle and which is the proper angle, I am of the considered view that the trial Court acted illegally in exercise of its jurisdiction in striking out the names of defendants Nos.1 and 3 from the civil suits filed against them by plaintiff claiming recovery of a certain sum as damages. When the matter was agitated in revisional jurisdiction before the learned Additional District Judge, this vital point has not received the deserving consideration by the Revisional Court. For the foregoing reasons, Writ petitions are allowed, impugned order dated 12-3-1980 passed by the Civil Judge striking out the names of defendants Nos.1 and 3 from the array of defendants, order dated 22-3-1980 passed by the learned Additional District Judge in revisional jurisdiction maintaining order dated 12-3-1980 of the Civil Judge are set aside and declared to have been passed without lawful authority. Necessary consequence of this declaration is that the two names which have been struck off be restored to the record and the claims as originally presented shall proceed to trial. In the circumstances of the case, the parties are directed to bear their own costs.
17. Writ .