1. ' SALEEM AKHTAR, J.---This appeal arises from the order of the learned Single Judge exercising admiralty jurisdiction whereby the application of respondent No,3 to be joined as a defendant in the suit has been granted. This case seems to have a chequered history. The appellant filed an admiralty suit against m.v. 'KASHMIR' and Swat Shipping Corporation described as owner of the vessel, for damages due to breach of agreement for carriage of goods. Alongwith the suit an application for arrest of the vessel was also filed which was granted and writ of arrest was served on 14-5-1988. Mr. Lakhani appeared on behalf of Swat Shipping Company and took time to file counter affidavit. However, vessel m.v. Kashmir violated order of arrest and was clandestinely removed from the jurisdiction of the Court on or about 26-5-1988. After some time the appellant came to know that m.v. Kashmir under the assumed name of m.v. Naran has entered the port of Karachi. It applied for her arrest and on 23-7-1988 she was again arrested. At this stage Afrah Shipping Co., respondent No,3 filed application as intervenor under Rule 743 of the Sindh Chief Court Rules (O.S.) for release of the vessel on the ground that it is the owner of the ship which was sold to it on 26-5-1988 and therefore, the action in rem does not lie. It was also pleaded that the vessel was not lawfully arrested as she was outside the territorial jurisdiction of the Court. The learned Single Judge recorded evidence of the witnesses and by order, dated 30-11-1988 reported in PLD 1988 Kar. 757 dismissed the application. The vessel which had entered the port with the name of m.v. Naran of which respondent No,3 claims to be the owner made unsuccessful attempt to escape from arrest and was removed from the jurisdiction of the Court but by timely action of Maritime Security Agency she was brought back under escort to Karachi Port on or before 23-12- 1988. The ship remained under arrest and on 27-5-1989 respondent No,3 filed application under Order I rule 10, C.P.C. For being joined as a party on the ground that it is the owner of the vessel having purchased it from Swat Shipping Co. On 26-5-1988. This application has been allowed by the impugned order, dated 21-11-1989.
2. ' Mr. M.H. Kazmi the learned counsel for the appellant has contended that only that person can be joined as defendant in a suit who has any interest in the subject-matter or is a necessary or proper party. Respondent No,3 claims to be the owner and entitled to be joined as a party. However, the learned counsel for the appellant has challenged this claim and contended that from the documents produced on record respondent No,3 is not the owner and the documents produced by it are false and fictitious. According to the learned counsel for the appellant respondent No,3 has no interest in the vessel and therefore, can not be joined as a party.
3. ' Respondent No,3 has relied on photo copies of bill of sale and registration certificate issued by the Port and Customs Department, Emarates of Ajman UA.E. According to respondent No,3 m.v. KALAM was sold by Sawat Shipping Co., under a bill of sale, dated 26-5-1988. The description of the vessel in the bill of sale shows that earlier name of the vessel was ANNA T TBR which was changed to m.v.
4. KASHMIR . According to respondent No,3 it was then changed to m.v. Kalam and was re-named as m.v. NARAN. The word KALAM seems to have been added in the bill of sale in a manner which makes this entry suspicious and unreliable. The established marine practice is that in a bill of sale first the present name of the ship is mentioned which is followed by her previous name super fixed with word 'Ex'. In the bill of sale produced by respondent No,3 the name of the vessel has been described as follows:-- "KASHMIR - EX ANNA T TBR KALAM"
5. ' By this description it is clear that KASHMIR's previous name was ANNA T TBR but it does not indicate that KASHMIR is the previous name of KALAM. If this would have been the position the name of the vessel should have been described as follows:-- "KALAM, EX KASHMIR, EX ANNA T TBR"
6. ' According to respondent No,3 it purchased `KALAM' on 26-5-1988 from Swat Shipping Corporation and that her previous name was KASHMIR. It then got KALAM registered at Ajman UAE and thereafter changed her name to "NARAN". The change of name from KASHMIR to KALAM would have been effected before the execution of the bill of sale. However, except the bill of sale no document has been produced to prove the change of name from KASHMIR to NARAN. Whenever name of ship is changed it is recorded at the port of registry which issues proper registration certificate as well.
7. In the absence of such certificate a suspicious entry in the bill of sale can hardly establish the change of name as alleged by respondent No,3.
8. ' Respondent No,3 has also produced photocopy of a Craft Registration Certificate issued by the Director of Department of Port and Customs Emirate of Ajman according to which m.v. NARAN EX m.v. KALAM was registered on 29-5-1988 under its ownership. By producing this certificate respondent No,3 contends that NARAN is the present name of KASHMIR and was purchased by it. If KALAM is proved to be the name of m.v. KASHMIR only then NARAN can be termed the same vessel as KASHMIR. Except the bill of sale no document has been produced to prove that KALAM's previous name was KASHMIR, which as discussed above is not a trustworthy document. We called upon Mr. Rizvi to produce the original bill of sale but he was not able to do so. Mr. Kazmi has pointed out to the discrepancies in the two documents produced by respondent No,3 which falsifies its claim. A comparison of bill of sale and craft registration certificate which are alleged to be in relation to m.v.
9. KASHMIR will show that they differ in material particulars like breadth, depth and tonnage of the vessel. The particulars have been mentioned as follows:--{{TABLE}} KASHMIRNARAN Length: 105.20 Meter.105.20 Meter.
10. Breadth 16.46 "15.90 "
11. Depth 8.21 "8.50 "
12. Gross 3932.42 Tons3309 Tons.
13. Tonnage: Registered Tonnage: 2445.71 Tons.2226 ' If KASHMIR is the same ship as NARAN then why there is difference in material particulars of the ship. These particulars of the ship are very material for the purposes of determining the nature and identity of the vessel. A comparison of these particulars in both these documents produced by respondent No,3 will show that there is a difference in breadth, depth and tonnage. These particulars of the vessel can not be changed within a few days as shown from the certificate.
14. Therefore, it seems that the bill of sale produced by respondent No,3 is fictitious.
15. ' The plaintiff alongwith his affidavit in rejoinder to the counter affidavit of respondent No,3. (in C.M.A. No,1164) filed documents obtained from the Department of Port and Customs, Emirates of Ajman through Mr. Jonanthen Silver, Solicitor whose affidavit has also been placed on record. The bill of sale of m.v. KALAM by which Shahbaz Mazhar Qureshi purchased m.v. KALAM on 285-1988 and the registration certificate prove that her previous name was 'GULF CARRIER". Her name was changed to m.v. NARAN as is obvious from the Department of Port and Registration Certificate. The particulars of vessel in these documents arc the same as in the Craft Registration Certificate produced by respondent No,3. Mr. Kazmi has referred to a certificate issued by Department of Port and Customs, Emirate of Ajman, dated 28-7-1988 which reads as follows:--- "EMIRATE OF AJMAN "DEPARTMENT OF PORT AND CUSTOMS Ref: No, 676/88.
16. Dated: 28th July, 1988.
17. TO WHOM IT MAY CONCERN ' This is to certify that Ajman Registered Vessel m.v. "NARAN" Registration No,676/88 GRT: 3369, NRT:2226 has never been registered as m.v. KASHMIR since 23rd November 1987 as per last Port of Registry available in our record."
18. ' Signed: This day the 28th of July, 1988.
19. ' These documents prove that NARAN'S previous registered names were KALAM and GULF CARRIER, and till 28-7-1988 she was never registered as m.v. KASHMIR at Port of Ajman. The bill of sale produced by respondent No,3 is dated 28-5-1988 and speaks of delivery of vessel and UAE but no certificate to show that the bill of sale was recorded at port of registry or at Port of Ajman has been produced. In the absence of such certificate the bill of sale looses its authenticity, particularly when it is intended to defeat the claim of any party.
20. ' The appellant made inquiries through Mr. William Tyrer Melbourne, Solicitor in respect of m.v.
21. KASHMIR whose affidavit and supporting documents were filed before the learned Single Judge.
22. They reveal that m.v. KASHMIR was first registered at Ajman on 17-12-1987 and Swat Shipping Corporation of Panama are and were the owner. m.v. KASHMIR did not change her name till 21-9- 1988 when inquiries were made. From these documents it appears that m.v. KASHMIR has never changed her name as m.v. KALAM but for the purposes of defeating the appellant's claim respondent No,3 produced fictitious bill of sale merely to set up a defence that the purchaser can not he held liable for the claim in the suit.
23. ' The ownership of vessel is not to be treated like the ownership of an ordinary chattle or goods. Like persons and corporations the ship also acquires a `Nationality' of the port of registry. Such registration is regulated by Municipal Law of the country, where it is registered. Some countries have strict rules of registration but in several countries registration rules seem to be very liberal where even a foreigner can get his ship registered. The ship register is kept and maintained at the port of registry which contains particular of the ship viz, owner's name, present and previous names, of the ship and tonnage. Any change in the name of the vessel or its transfer is notified and registered in the Register. The extract from this register or certificate of registration serves the purpose of a document of title of a ship. When a ship registered at a port is sold and changes her nationality then after entering such transfer the register is closed and the ship is required to be registered at the new port of registry. Therefore, the documents obtained from the port of registry in respect of a vessel serve a prima facie proof of her ownership and particulars which can he rebutted. In the present case from the documents it is clear that m.v. KASHMIR did not change her name to KALAM or NARAN and prima facie forged bill of sale has been produced. Respondent No,3 does not deny that the vessel under arrest had called earlier and when arrested was known as KASHMIR. Respondent No,3 has entered the vessel under a fictitious name with intention to defeat the process of law.
24. ' The learned Single Judge did not take into consideration this aspect of the case and decided the application on the plea that m.v. KASHMIR was transferred to respondent No,3 and has been renamed as m.v. NARAN. It was on this assumption that the principles as enunciated by section 64 and Order XXI Rule 46, C.P.C. Were applied. A transfer after attachment is not wholly void but it can not defeat the claim to the extent of attachment. Such transfer would be void to the extent it comes in conflict with the attachment. The attached property to the extent of claim in suit can be auctioned irrespective of the subsequent sale. The appellant has filed an action in rem under section 4(4) of Admiralty Jurisdiction of High Courts Ordinance 1980 (Order XLII of 1980) against the vessel which was attached. This attachment has not been withdrawn. Removal of the attached/arrested vessel from the jurisdiction of the Court does not discharge or defeat the order of arrest. Whenever such a delinquent ship arrives within jurisdiction of the Court, whether under a changed name or changed ownership the Court would be competent to rearrests her.
25. Furthermore, if the writ of arrest has been issued or served a subsequent change in name or ownership will be subject to the claim as decreed by the Court.
26. ' Mr. Kazmi has referred to THE MONICA S. (1967) 2 LLoyd's Law Rep.113 where the plaintiff, a cargo owner filed an action in rem and a writ in rem was issued against the vessel. Before the service of the writ of arrest of vessel was transferred to T and her name was changed from MONICA SMITH to MONICA S. The writ was amended to describe the ship as 'MONICA SMITH now known as MONICA S. And served on the ship. T entered conditional appearance and applied for setting aside the writ of arrest on the plea that by mere issuing writ no charge or lien was created on the ship as T was not the owner of the vessel on the date of service, the claim did not give rise to a maritime lien and it had no notice of the claim. It was held that "change of ownership after the issue of writ but before its service or arrest did not defeat statutory right of action in rem". It was further held that as on the date of service T was the owner it has substantive interest in the case.
27. ' Respondent No,3 could claim interest in the action only if it would have succeeded to establish substantive interest in the vessel.
28. Under Order I rule 10, C.P.C. The Court is empowered to add or substitute as parties in whose absence no effective decree can be passed and are necessary or proper parties. Furthermore persons who have interest in the subject-matter of the suit can also he joined as parties. In an admiralty suit where action in rem has been instituted the vessel is the res against which decree can be passed. Any person having any interest in the res can join the proceeding. In an action in rem if any person claiming to be the owner of the vessel joins as a defendant, and the decree passed can not be satisfied from the res then such owner would be personally liable to satisfy it.
29. However, for the present controversy we have only to see whether the respondent has any interest in the res. From the documents prima facie it does not seem to have any interest. Mr. Kazmi has referred to Pakistan Banking Council v. Ali Mohtram 1985 SCM R 714 in which while observing that under Order I rule 10 persons who are necessary or proper parties should be joined it was held:- "No party can be allowed to argue that as the Court has a wide discretion in the matter of the joinder of parties, any person who is neither a necessary nor a proper party may be joined at the convenience of the applicant. It is in this context that the Courts have held that in exercising their powers under this rule, Courts ought to see that the suit and that the trial of the suit is not embarrassed by the simultaneous investigation of totally unconnected controversies."
30. ' Applying the principles laid down by the Hon'ble Supreme Court, on the facts as discussed above, we are of the opinion that respondent No,3 having no interest in the rest is neither a necessary nor a proper party and cannot be joined as a defendant. We, therefore, set aside the order of the learned Single Judge and allow the appeal with cost.