' K.A. GHANI, J.--This intra-Court appeal has been filed against the order dated 17-11-1983, passed in Suit No, 782 of 1977 whereby the application made by the respondents Nos. 1, 2 and 3 under Order 1, Rule 10, C.P.C. (C.M.A. 3450/1983) was allowed and they were ordered to be joined as defendants in the said suit.
1.. The facts relevant for the purposes of disposal of this appeal are that the plaintiff (respondent No,4) brought the above-mentioned suit for specific performance of agreement of sale dated 16th July, 1962 made between the appellant (hereinafter referred to as the vendor) in respect of the property bearing Survey No, 184-B, Block 'B', situated at P.E.C.H.S. Karachi (hereinafter referred as the said property). It is not necessary to go in details of various averments made in the plaint, suffice it would be to state that the sale consideration agreed was Rs, 59,000 out of which according to the plaintiff he paid Rs, 37,500 at the time of the agreement and Rs, 4,000 were paid on 6th November, 1982, thus leaving a sum of Rs, 17,500, out of which Rs,16,500 were to be paid in instalments to the House Building Finance Corporation and the balance Rs,1,000 was agreed to be received by the defendant/vendor at the time of registration of the sale-deed. It was also pleaded that otherwise the transaction was complete in all respects. It is the case of the plaintiff that the defendant/vendor got the name of the plaintiff mutated in the records of the Excise and Taxation Department and the Karachi Municipal Corporation and all the taxes were paid by the plaintiff in his own name. According to the plaintiff, the defendant got the telephone transferred in the name of the former. The sui gas meter is also in the name of the plaintiff. The plaintiff also claimed that he had been paying instalments regularly to the House Building Finance Corporation and that it was mutually agreed between him and the defendant/vendor that after the adjustment of the loan, the sale-deed would be executed.
2. In the above suit, the respondents Nos.1 to 3 filed an application under Order I, Rule 10, C.P.C.
(C.M.A. 3450/1983) wherein it was prayed that they be joined as defendants. It was stated by them that by the agreement of sale dated 2-6-1973 the plaintiff agreed to sell the abovementioned property to the said applicants, and to receive a total sum of Rs,60,000 as the sale consideration out of which Rs,58,000 were paid in cash to the plaintiff leaving the balance amount i.e. Rs,2,000 which was agreed to be paid at the time of the registration of the sale-deed. It was also pleaded that the plaintiff handed over the vacant possession of the said property to the applicants, who since then have been paying all the taxes, electric, telephone and suit gas bills. The applicants also claimed to have paid the entire outstanding balance of House Building Finance Corporation and that after the purchase of the property they started construction of the first floor and completed the bungalow in all respects upto first floor level at an expenditure of Rs,1,60,000. On the above facts amongst others, the applicants submitted that in the property, which is subject-matter of the suit, they have right and interest and that in the circumstances their presence before the Court was necessary for passing of an effectual decree after taking into consideration all the points involved in the suit. The applicants contended that they are proper parties to the suit and that they would suffer irreparable loss and that there shall be multiplicity of litigation if they were not allowed to be joined as parties.
3. The above application was heard by the learned Single Judge, who by the impugned order passed on 17-11-1983 allowed the said application inter alia on the ground that: ' It is apparent that he has high stakes. That he would be seriously affected by the outcome in this suit. The plaintiff having sold the property to the intervenor and pocketted the full consideration has very little interest left in the property and the suit. Actually now it is the intervenor who would be vitally effected by these proceedings and it is very appropriate that he should have an opportunity to safeguard his interest in these proceedings. The learned counsel expressed an apprehension that if the suit is not vigorously pursued and is dismissed on account of lack of interest shown by the plaintiff it is the intervenor who would be put to hardship and sufferances."
4. It would be relevant to mention here the fact that though the Advocate for the appellant/defendant opposed the said application, the learned Advocate for the plaintiff made a statement before the learned Singe Judge that he would have no objection to the joinder of the application as they have stepped in his shoes and that the intervenors are the persons who would be exposed to the consequences in the suit.
' The objections raised by the Advocate for the defendant/appellant were held to be based upon no convincing grounds. The application was thus allowed by order passed on 17-11-1983 and the applicants were ordered to be joined as parties to the suit.
5. Against the above order passed by the learned Single Judge, this Intra-Court Appeal has been prefered by the defendant/appellant.
6. Mr. Shahenshah Hussain, the learned counsel for the appellant/ vendor before us raised the same grounds in support of the appeal which he had urged before the learned Single Judge while opposing the application, filed by the applicants for their joinder as parties to the suit.
' The objections raised by the learned counsel are:-
(i) the applicants were not necessary parties to the suit for specific performance of the agreement between him and the plaintiff and that it was open to the applicants to seek remedies against the plaintiff separately.
(ii) that the applicants were not claiming any relief in the suit and as such they were neither necessary nor proper parties.
7. As regards the point No,1, we find that the material on the record shows that the plaintiff had agreed to sell the property in question to the applicants/the respondents Nos. 1, 2 and 3 and that he has already received the entire sale consideration from the applicants except a paltry sum of Rs,2,000 which is payable at the time of the registration of the sale-deed. The applicants are in possession of the property in part performance of their agreement with the plaintiff and have spent considerable amount on construction of the bungalow which is now the subject-matter of the suit.
The applicants also claim to have paid the entire balance loan amount to the House Building Finance Corporation. In the circumstances of the case it cannot he disputed that they have vital interest in the property in suit in which on the face of record, they have possessory title being in possession in part performance of the agreement. Their presence before the Court, therefore, in our opinion would be necessary for, affair and just decision of the suit and to avoid multiplicity of proceedings.
' We may here with advantage refer to the case of Asghar Jehan Begum v. Syed Jalilur Rehman and others PLD 1969 Kar. 436, a judgment given by Division Bench, in which while delivering the opinion of the Court, Mr. Justice M.A . Zullah (as he then was) while repelling the contention raised that in a suit for specific performance of a contract only parties interested in a contract are necessary parties, with reference to provisions of Order I, Rule 10 of C.P.C. Held:- "....The phrase "all the points involved in the suit 'does not mean' all the points that are raised by parties". The phrase is not amendable to any such restricted meaning, All the points, though not raised as between the parties themselves, as are material to a proper decision of the suit, are necessarily points 'involved' in the suit. It was held that 'it is obvious that, being a discretionary relief, a Court of law has full discretion to allow or refuse specific performance, if circumstances justify such refusal although the contract may be free of any legal defect."
' Placing reliance on the observations made in the case of Mir Hasmat Ali v. Birendra Kumar Ghosh and others PLD 1965 Dacca 56 the learned Judge observed:- "the circumstances which justify the refusal to enforce specific performance were considered by their Lordships; for example, if the contract is of a collusive nature and there is likelihood of the parties before the Court colluding in such a way as to deprive the Court of the material facts; or, when the enforcement of the contract might lead to a breach of trust even when such breach of trust was not proved; or, when the facts and circumstances of the case prove 'that the transaction is unconsciousable."
' Reference may also be made here to the following principle laid down in the above case of Asghar Jehan Begum v. Jalilur Rehman which being relevant is reproduced here:- "....The pith and substance of all these provisions is the avoidance of any inconvenience to the parties, in matter of litigation so far as it is possible; and an overriding fact which runs as an implied intention throughout these provisions is, that multiplicity of litigation is to be avoided."
8. We may also refer to the case of Policherala Veeraraghava Reddi v. Cherla Subba Reddi and others AIR 1920 Mad.
391. In the 'said case while reversing the order of refusal to join in the suit a party who claimed to be transferee pendente lite, the party was directed to be impleaded in the suit on the principle that the person having interest in the suit should be a party so that he may have an opportunity of proving his case and support his title and also to prevent any chances of fraud or collusion on the part of his transferor, who often after the alienation retains little or no interest in the subject-matter of the litigation. Reliance was also placed by the learned High Court of Madras on the observations made by the Privy Council in the case of Tarakant Bannerjee v. Padomoney Dossee 10 M I A 476 = 19 E R 1052 (P.C.) wherein it was observed:- " The law allows a party interested to intervene in the suit that right should not be virorously dealt with."
9. The principles discussed are also complete answer to the ground No,2 raised by the learned counsel. We may mention here that we had put a direct question to Mr. Shahenshah Hussain, Advocate that I case the plaintiff and the defendant/vendor decide to enter in conspiracy or a compromise in the suit or defeat the rights of th applicants in their absence,, how the interests/possessory title of the applicants would be protected, if they are not allowed to be joined a parties in spite of the application made by them. Mr, Shahenshah Hussain, learned Advocate was unable to give any convincing answe except reiterating the plea that the applicants should seek their own remedy by separate suit and their presence was not necessary in th suit. This objection, however, is without any substance and cannot be substantiated in view of the principles discussed above.
10. We may also here refer to the case of Mst. Khurshid Begum v. Malka and others 1983 SC MR 534.
The facts of the said case were that Malka and others sought possession of a share in joint property/ agricultural land on the basis of being its recorded co-sharers. They alleged that the respondent Anar was in its possession and was denying their title and was not handing over possession of the property to them. Anar resisted the suit and claimed that he himself was the owner and in the alternative claimed adverse possession. He also pleaded that all the recorded co-sharers were necessary parties and that the suit was bad for non-joinder of necessary parties.
Before the evidence of the parties could conclude an application was made by one Mst. Khurshid Begum praying that she be allowed to be impleaded in the suit. Her prayer was based on the plea that by inheritance she was entitled to a share in the joint property. In resisting the application the plaintiffs denied the relationship of Khurshid Begum and thus her claim in the property by inheritance and also her locus standi. The learned trial Court granted the application and allowed her to be impleaded as a party to the suit, with the observation that if she proved her relationship with the original owner of the suit land then she would get the entire suit land to the exclusion of the respondents and her presence would enable the Court to adjudicate all the points involved in the suit effectually and completely. It was further observed that she is a person who is legally interested in dispute and the relief claimed will directly affect the applicant and that if she is implicated in the suit, it would not cause any embarrassment to the parties.
' The said order was challenged by preferring revision petition in the High Court who set aside the said order with the observations inter alia that right claimed by Mst. Khurshid Begum was denied, that the proper course for her was to file a suit of her own either for possession of the property or for declaration of her right, and that she could not be deemed either a proper or necessary party.
' The matter finally came before the Honourable Supreme Court. Their Lordships accepted the appeal, set aside the judgment of the High Court and restored the order of the trial Court, with the observation, inter alia, that in the circumstances of the case:- "....Her being impleaded at this stage will definitely eliminate multiplicity of litigation and enable full and proper adjudication of the factual controversy raised in the suit. Judged in this context, the impugned action of the trial Court was an exercise of judicial discretion which was based on proper consideration. There cannot be said to be any error or material irregular4ity in its exercise to attract the revisional jurisdiction of the High Court. The plaintiffs will still be required to prove what they are required to prove in the suit against Anar defendant, their title and the character of possession of Anar."
' While considering the question if the decision on such an application as was made by Mst.
Khurshid Begum amounts to a case decided, the Honourable Supreme Court with the observation that in view of the opinion that was formed by the Honourable Court the said question need not be gone in length, also held:- If it has any prejudicial effect then in so far as the decision causes the prejudice would be a case decided and would attract the revisional jurisdiction of the High Court. Where, however, no such sinister effect is created on the rights and obligations of the parties and in fact advances the cause of justice, shortens the litigation and eliminates its multiplicity, it would not amount to a case decided, for it will be only a procedural step directed to achieve the end of the litigation without impairing any of the rights or obligations strict to senso."
Looking at the present case in the light of the principles laid down as above, we have no hesitation in holding that the order passed by the learned Single Judge as laid down by the Honourable Supreme Court, advances the cause of justice, shortens the litigation and eliminates multiplicity of proceedings without impairing any of the rights or obligations of the parties. Any possibility of fraud and collusion between the plaintiff and the defendant to defeat the rights of the applicants would also be eliminated.
11. The impugned order passed by the learned Single Judge in the circumstances of the case based as it is upon judicial exercise of the discretion, calls for no interference.
' We accordingly dismiss this appeal in limine as being without any merit.