1. This is an application under Order I rule 10 read with section 151 of Civic Procedure Code moved by Zulfiqar A.I Agha for implicating him alongwith Mst Razia Agha and Al-Feroze (Pvt.) Limited as defendants in the above suit.
2. Sanaullah Corporation (Pvt.) Ltd., filed the above suit for specific performance of a contract, contending that the defendant had entered into an agreement with it for the sale of a house bearing No.171-A, Block No.3, Sir Syed Road, P.E.C.H.S. Ltd. Karachi admeasuring 1,000 Sq. Yards but has failed to complete the sale and prayed for a decree directing the defendant to complete the sale by executing and getting registered sale-decd in its favour after obtaining no objection certificate from the Society and the Ministry of Works, also prayed for possession.
3. The applicants/intervenors made an application for being joined as parties to the suit contending that the suit property was gifted to Mrs. Razia All Agha by the defendant and the suit property was also gifted to the applicant by his father Akhtar A.I Agha on 29-1-1980 and the applicant had entered into an agreement of sale in favour of Al-Feroze (Pvt.) Limited and handed over physical possession to it.
4. I have heard the learned counsel for the parties. The question for determination in this application is whether in a suit for specific performance of a contract for sale, instituted by a purchaser against the vendor; a stranger to the, contract who, contending that the contracted property is gifted to him and also gifted to Mrs. Razia A.I Agha and he had entered into an agreement of sale with Al- Feroze, wants to intervene in the suit is entitled to be impleaded as party. The provisions in the Code relating to joining of parties are contained in Order Rules 1, 3 and 10. The provisions of Order 1 Rules 1 and 3 make it permissible to join more than one plaintiff and defendant in a suit respectively. On a barn reading of this rule I of Order 1, it is axiomatic that in the instant case, the provisions of Rule I are not attracted. Then comes Rule 10 of Order I, relevant portion of which is quoted herein below under which the Court has the jurisdiction or power of substituting, adding or striking out of a party to a suit. Sub-rule (1) of rule 10 relates to the addition of parties as plaintiffs only and therefore, it is not relevant in the instant case. The only relevant provision for answering the question before me is sub-rule (2). Sub-rule (2) provides two expressions: (i) "who ought to have been joined", and (ii) "whose presence before the Court may be necessary" indicate that there are two categories of parties (i necessary party as indicated by the expression "ought to leave been joined, and (ii) proper property as indicated by the expression "whose presence before the Court may be necessary'. The Court has no jurisdiction or power to add a person a> party who is nether a necessary party nor a proper party. I have, therefore, to examine whether the applicants, Mrs. Razia A.I Agha and AI-Feroze (Pvt.) Limited fall in either of these categories. It is also necessary to reproduce Order I, Rule 3, C.P.C. It says:- "3. Who may be joined as defendants--All persons may be joined as defendants against whom any right to relief in respect of or arising out of the same act or transaction is alleged to exist, whether jointly, severally or in the alternative, where if separate suits were brought against such persons any common question of law or fad would arise."
5. Undoubtedly, the agreement, which was the foundation of the cause of action, expressly refers to the transaction between the vendor and the purchaser and the common question involved in the application is whether the defendant had the sole title to sell the property to the plaintiff and whether the Contract of sale affected the interests of the applicants proposed defendants. It is indeed true that in a suit for specific performance the general rule is that a stranger to the contract cannot be sued upon it; only the parties to the contract are, according to the rule necessary and proper parties. But this general rule is subject to certain modification (the Halsbury's Laws of England) Ed. 4th, Vol. 44, para. 512, page 349 and the foot-notes thereunder. See also (Fry's Specific Performance of Contract, Edn. 6, page 90, para. 205) for instance, strangers are made parties as an exception to the rule in case of no-ovation in the case of an interest arising under a prior contract; and in cases where it is desirable to avoid multiplicity of Suits. That is exactly what Order 1, Rule 10, C.P.C. Contemplates. According to Fry's (paras. 208 and 209):-- "------------------.a stranger to the contract may so mix himself up with it by setting up a claim to some benefit resulting from it; as to render himself liable to be made a party to proceedings for the enforcement of the contract as, for instance by claiming to be interested in the purchase money under an arrangement antecedent to the contract.
6. The rule as to joinder of defendants was thus expressed by Stuart V.C. In Bishop of Manchester Mid Hunts Railway Co., I(1867) Eq. 17: 37 L.J. Ch. 64 176. T 161, ordinarily, a person not being party to the contract ought not to be brought before the Court. But is otherwise, where possession sought by the bill and the person in possession will be affected by the decree.
7. It has been held in several cases in England that persons claiming adversely might be made defendants and the case of the applicants is exactly on the same footing for they had claimed adversely to the vendor. It may be noted that the case of the applicants as alleged in the application is that Al-Feroze (Pvt.) Ltd., is still in possession and its possession is likely to defeat the claim of the plaintiff to possession. If the plaintiff succeeds upon its title the decision is bound to affect these applicants. In that connection it is necessary to refer to Section 27 Clause (e) of Specific Relief Act, which deals with the class of persons who may be parties to a suit for specific performance. The clause is as under:- "Any person claiming under a title which though prior to the contract and known to the plaintiff might have been displaced by the defendant."
8. The general rule is obviously the sensible rule in practice. But the recognized exceptions which are in conformity with the practice of the Chancery Court cannot be isolated, See AIR 1916 Mad. 681. In the instant case the plaintiff had prayed for possession of the property in suit. I am of the humble view that Order I, Rule 10, C.P.C. Will apply to the case. The applicants are not only necessary but proper parties to the suit. Consequently this application is allowed and the applicants are allowed to be impleaded as defendants 2 to 4. The amended plaint is to be filed within three weeks from today.
9. H.B.T./B-371/K